Opinion
NO. 2015-CA-001748-MR
03-31-2017
JASON CRISWELL; DANNY HOLCOMB; NEIL HILLE; AND TOM CANNADY APPELLANTS v. GEORGE AVERY APPELLEE
BRIEF FOR APPELLANTS: Edward A. Baylous, II Justice & Public Safety Cabinet Office of Legal Services Frankfort, Kentucky ORAL ARGUMENT FOR APPELLANTS: Edward A. Baylous, II BRIEF FOR APPELLEE: Gregory A. Belzley Prospect, Kentucky Timothy R. McCarthy Louisville, Kentucky ORAL ARGUMENT FOR APPELLEE: Gregory A. Belzley
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 11-CI-00884 OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Jason Criswell, Danny Holcomb, Neil Hille, and Tom Cannady (collectively, "the Appellants") appeal from an order of the Oldham Circuit Court denying their motion for summary judgment. The Appellants argue that they are entitled to the protection of qualified official immunity against the personal-injury claims brought by a former inmate, George Avery. We find that Avery's claims are based on their performance of discretionary functions and there is no sufficient proof of deliberate indifference rising to the level of bad faith. Hence, we reverse and remand for entry of a new order dismissing Avery's claims.
At the time of the October 15, 2010, incident at issue in this case, Avery was an inmate incarcerated at the Kentucky State Reformatory. Earlier that year, Avery qualified for a position with Kentucky Correctional Industries (KCI), a job-training and work program operated by the Department of Corrections. Cannady and Hille served as the Director and Operations Manager, respectively, for KCI's statewide operations. Avery was assigned to the Recycling Plant under Criswell's supervision. Criswell reported directly to Holcomb, KCI's Plant Manager at Kentucky State Reformatory. Holcomb was also responsible for coordinating training.
After six to eight months working at other jobs, Criswell asked Avery if he could operate a Skil circular saw. In his deposition, Avery states that he had not operated a circular saw before, but he had watched other people do it and did not believe it to be dangerous. However, he admits that he did not inform Criswell of these facts. Rather, Avery told Criswell that he could operate the saw. Avery also contends that he received no training on how to use the saw, nor was he provided any work gloves or saw horses.
Avery was assigned to use the saw to cut down wooden pallets on the concrete floor of the workshop. He operated the circular saw without incident for several months. On October 15, 2010, while he was performing this task, Avery was approached by another inmate, who asked him to cut a 2" x 2" piece of wood lengthwise. Although this was not part of his job duties, Avery testified that he had done this before, and Criswell was aware of it. Avery placed the board across the pallets on the floor and was approximately two-thirds of the way through it when the circular saw struck the pallets underneath. The saw then kicked back and severed Avery's thumb through the bone. He alleges that he suffers from a permanent diminishment of the use of his left hand, as well as significant pain and limitation of movement.
Following his release from prison, Avery filed this action, naming each of the Appellants in their individual capacities. He alleged that the Appellants failed to properly train and supervise him in the use of the circular saw. In their answer, the Appellants asserted, among other things, that Avery's action was barred by the doctrine of qualified immunity. They filed a separate motion to dismiss based upon that ground. After reviewing the motion and the discovery of record, the trial court found that there were genuine issues of material fact whether the Appellants had acted in good faith. This appeal followed.
The standard of review of a trial court's grant of summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Like the trial court, this Court must review the record in a light most favorable to the party opposing the motion and must resolve all doubts in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). In the context of qualified official immunity, "summary judgments play an especially important role" as the defense renders one immune not just from liability, but also from suit itself. Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985)). Consequently, the denial of a substantial claim of absolute immunity is an order appealable before final judgment. Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009)
An officer or employee of a governmental agency is afforded qualified official immunity, rather than official immunity, when sued in his individual capacity. Yanero v. Davis, 65 S.W.3d 510, 521 (Ky. 2001). Qualified official immunity applies to a negligent act or omission by a public officer or employee for their "(1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment . . . ; (2) in good faith; and (3) within the scope of the employee's authority." Id. at 522 (citing Restatement (Second) of Torts § 895D). Qualified immunity does not extend to the negligent performance of ministerial acts, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature. Id.
The Kentucky Supreme Court has recognized that the supervision of state prisoners is a discretionary act or function. Sloas, 201 S.W.3d at 475. In Sloas, a deputy jailer was supervising six inmates on work detail who were using chainsaws to clear brush from roadsides in Rowan County. Id. at 473. Inmate Sloas's leg was broken when he was struck by a falling tree that had been cut by another inmate. Id. Sloas brought suit against Rowan County, its jailer and the supervising deputy jailer, alleging negligent supervision and training of the staff and prisoners without implementation of adequate safety procedures. Id. The Supreme Court held that the managing of six state prisoners "is as discretionary a task as one could envision." Id. at 480. Consequently, the Court concluded that the trial court properly granted summary judgment to the jailer and the deputy jailer based upon qualified official immunity.
Likewise, the trial court in the current case recognized that supervision of prisoners is a discretionary function. Avery concedes this point, but contends that the training of jail employees and the enforcement of known safety regulations are ministerial functions. See Finn v. Warren Cty., Kentucky, 768 F.3d 441, 449 (6th Cir. 2014). But in Finn, the inmate's estate alleged the jailer failed to train jail staff on policies regarding emergency medical treatment of inmates. The Sixth Circuit held that, while a supervisor's decision "on the content of policies and training is a discretionary function, the training of employees to adhere to their duties once that content is decided is a ministerial function." Id., quoting Hedgepath v. Pelphrey, 520 Fed. Appx. 385 (6th Cir. 2013). In the current case, Avery does not allege that the Appellants failed to enforce known safety policies, but only that they failed to promulgate safety standards or conform their supervision of inmate's work to a standard of reasonable care. Such allegations are insufficient to convert the Appellants' conduct from discretionary to ministerial.
Once the officer or employee has shown that the act was performed within the scope of his discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act was not performed in good faith. Yanero, 65 S.W.3d at 523. There is no allegation that any of the Appellants willfully or maliciously intended to harm Avery or that they acted with a corrupt motive. However, bad faith can also occur upon proof of a violation of a "clearly established right" of the plaintiff, which "a person in the public employee's position presumptively would have known was afforded to a person in the plaintiff's position, i.e., objective unreasonableness . . . ." Id.
The "good faith" qualification to official immunity for discretionary acts has both an objective and a subjective aspect. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396 (1982)). The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." Id. (citing Harlow, 457 U.S. at 815, 102 S. Ct at 2737). The subjective component refers to permissible intentions. Id. Thus, an official is not entitled to qualified immunity if he "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . . ." Id., quoting Harlow, 457 U.S. at 815, 102 S. Ct. at 2736-37 (emphasis omitted).
More recently, the Kentucky Supreme Court applied this standard in another inmate-injury case, Bryant v. Pulaski Cty. Detention Ctr., 330 S.W.3d 461 (Ky. 2011). In that case, an inmate on a work crew was severely burned when the deputy jailer threw fuel on a fire. The Court held that the deputy jailer "could not have honestly or reasonably believed that he was faithfully performing his duty or obligation to Appellant when he threw gas on an open fire while Appellant was standing near it." Id. at 467. Consequently, the deputy jailer was not acting in good faith and was not entitled to qualified immunity.
As in Bryant, Avery alleges that the Appellants were deliberately indifferent to the danger posed by their failure to adequately train and supervise him in the proper use of a circular saw. "Deliberate indifference" is a stringent standard of fault, requiring proof that a governmental actor disregarded a known or obvious consequence of his action. Bd. of Cty. Comm'rs of Bryan Cty., Oklahoma. v. Brown, 520 U.S. 397, 410, 117 S. Ct. 1382, 1391, 137 L. Ed. 2d 626 (1997). Here, Avery named Cannady and Hille as defendants based upon their supervisory duties and discretionary functions in promulgating safety regulations for the statewide KCI operations. There is no allegation that they knew of the allegedly unsafe conditions and deliberately disregarded a known or obvious consequence of their actions. Consequently, the trial court erred by denying their motions for summary judgment based upon qualified official immunity.
Avery named Criswell and Holcomb based upon their direct supervisory duties of the Recycling Plant. As in Sloas, mere negligence in training and supervising inmates is not sufficient to demonstrate bad faith. The trial court found a factual question in whether Criswell and Holcomb knew or should have known that Avery was not properly trained, that he was not provided safety equipment, that he was performing unauthorized and unsafe work, and whether this unauthorized work was an accepted practice. The trial court concluded that such knowledge may be sufficient to establish a deliberate indifference to the rights of inmates working under their supervision.
Even viewing these disputed issues of fact in the light most favorable to Avery, we disagree. Avery admitted that he told Criswell he could operate the saw even though he had never actually used one. Furthermore, Avery actually used the saw without incident for several months. Thus, neither Criswell nor Holcomb had any basis to know that Avery was inadequately trained. Likewise, Avery admitted that he never complained about the allegedly unsafe working conditions, and there was no evidence that either Criswell or Holcomb knew or should have known of the conditions. Finally, even if Criswell and Holcomb condoned the unauthorized work, their actions would not rise to the level of deliberate indifference to a known or obvious consequence of their negligence. Consequently, we must conclude that the trial court erred in denying Criswell and Holcomb's motion for summary judgment based upon based upon qualified immunity.
Accordingly, we reverse the order of the Oldham Circuit Court denying summary judgment to each of the Appellants based on their qualified official immunity. This matter is remanded to the Oldham Circuit Court for entry of an order granting the motion and dismissing Avery's claims.
ALL CONCUR. BRIEF FOR APPELLANTS: Edward A. Baylous, II
Justice & Public Safety Cabinet
Office of Legal Services
Frankfort, Kentucky ORAL ARGUMENT FOR
APPELLANTS:
Edward A. Baylous, II BRIEF FOR APPELLEE: Gregory A. Belzley
Prospect, Kentucky Timothy R. McCarthy
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEE:
Gregory A. Belzley