Summary
finding that "summary judgment is not appropriate if there are factual disputes involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether the defendants did acts that violated clearly established rights"
Summary of this case from Battle v. ParrOpinion
Civ. A. No. 94-19.
June 7, 1995
Eugene F. Mooney, Mooney, Mooney Mooney, Lexington, KY, Donnie D. Kidd, Stumbo, Bowling Barber, Prestonsburg, KY, for Paul Michael Robertson.
James M. Burd, Allen Button, Williams Wagoner, Louisville, KY, for Johnson County, KY, Thurman Tackett, Todd Pack, and John Doe(s).
William A. Hoskins, III, Timothy R. Coleman, Jackson Kelly, Lexington, KY, for Big Sandy Regional Detention Center Authority.
This matter is before the Court upon several pending motions. The defendants have filed a motion for summary judgment which has been fully briefed. [Record No. 18]. Robertson has filed for leave to file a rebuttal memorandum to the defendants' reply. [Record No. 32]. Also pending before the Court is the plaintiffs motion for leave to file an amended complaint to identify the party named "John Doe" and to add a party. [Record No. 20]. The defendants have also made a motion in limine to exclude expert witness testimony offered by the plaintiff. [Record No. 22]. Finally, the defendants have made a motion to strike the plaintiffs exhibit numbers two and four attached to the plaintiffs response to the defendants' motion for summary judgment. [Record No. 31].
I. FACTUAL BACKGROUND.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 for alleged violations of the Fourth, Fifth and Fourteenth Amendments, with pendent state law claims. On March 7, 1993, the plaintiff, Paul Michael Robertson [Robertson], was arrested for DUI. The plaintiffs blood alcohol level registered .223 percent blood alcohol content as measured by a breathalyzer test performed at approximately 3:23 a.m. on March 7, 1993. The plaintiff was subsequently transported to the Big Sandy Regional Detention Center [Detention Center] where he was incarcerated from approximately 5:00 a.m. to 10:00 p.m. on March 7, 1993.
The defendants contend that during the booking procedure Robertson was unruly and belligerent and therefore the booking process had to be concluded so that Robertson could be placed in a detox cell. Robertson's version of the events differ. Robertson denies being belligerent and unruly. He claims he was cold and sleepy and wanted his coat and to sleep. Robertson alleges that when he asked for a blanket Officer Todd Pack [Pack] told him to shut up and pushed him into a chair and onto the floor. The plaintiff maintains that he did not attempt to retaliate but claims that when he tried to get up and repeated his request for his coat that the defendant Pack told him to shut up and that he would teach him to run his mouth. Robertson maintains he was then struck in the head and knocked to the floor again with a hard object, possibly a brick. Robertson could not identify the perpetrator. While on the floor, Robertson allegedly was struck in the head and kicked three times in the stomach by Pack and Officer John Little [Little]. Robertson maintains that he had previously informed Little that he had recently had surgery for a ruptured appendix.
The plaintiff asserts that Pack yelled expletives at him, which are best left unrepeated here.
The plaintiff has filed a motion for leave to substitute Little for the defendant John Doe. The defendants have objected thereto. See section III, infra, denying said motion.
After this alleged incident, Pack and Little supposedly dragged the plaintiff across the room by his handcuffs. Pack then allegedly picked Robertson up by the neck and slammed his head against a concrete wall three times, and threw him against the floor again while other unidentified officers looked on and jeered. Robertson maintains that he was thrown to the floor of the detoxification cell and was hit by Pack in the mouth.
Pack, on the other hand, contends that after the booking process was prematurely terminated, due to Robertson's belligerence, Robertson was escorted to the detox area. The plaintiff was placed in an empty detox cell, and while Pack was backing out of the cell, the plaintiff allegedly jumped off the bench and "swung a punch" at Pack. Pack admits striking Robertson in the mouth with his fist in self-defense. Robertson was then locked in the detoxification cell. Little testified that when he and Pack left the plaintiff was kicking and screaming. The plaintiff admitted yelling and pounding the door to get the officers' attention after he was placed in the cell. Pack denies hitting Robertson during the booking process.
The plaintiff maintains after being placed in the detox cell he immediately requested medical attention which was denied by an unidentified voice over the loud speaker. Robertson contends Pack and Little heard and ignored his requests for help. Pack and Little deny the same. Robertson alleges that when he awoke at 2:00 p.m. he was suffering from severe stomach pains, dizziness, headaches and a sore neck. Robertson contends his renewed requests for medical attention were denied.
At approximately 4:35 p.m., the plaintiff was served his evening meal and given the medication he brought with him. He called his sister Paula, but did not request medical attention from anyone at the Detention Center. Robertson was released at approximately 10:00 p.m. on March 7, 1993. The next morning he sought medical treatment for the injuries he allegedly sustained at the Detention Center. Subsequently, Robertson was tried and convicted of menacing relating to the incident at the Detention Center. The jury also found the plaintiff guilty of disorderly conduct. Robertson filed the instant action alleging that the defendants were deliberately indifferent to his medical needs for failing to get him medical attention and that the defendants exercised excessive force upon him by beating him.
The defendants filed the instant motion for summary judgment on the following grounds: (1) the plaintiff failed to state a claim against Johnson County, Kentucky; (2) the defendants Tackett and Pack are entitled to summary judgment in their official capacities as a matter of law because plaintiff has failed to present any evidence of an unconstitutional policy or custom of the Big Sandy Regional Detention Center; (3) the defendant Tackett is entitled to summary judgment in his individual capacity because the plaintiff has failed to present sufficient evidence to render Tackett liable in his individual capacity; (4) the defendant Pack is entitled to summary judgment as a matter of law in his individual and official capacities as to all claims against him; and, (5) the defendants Tackett and Pack are entitled to qualified immunity.
II. DISCOVERY DISPUTES.
As a preliminary matter, the Court will address the pending discovery disputes. The defendants have filed motions to preclude the plaintiff from introducing the expert testimony of Dr. Michael E. Sadler, Ph.D [Record No. 22]; and to exclude the use of the deposition of Dr. Ronald M. Ross pursuant to Fed.R.Evid. 804(b)(1) [Record No. 31]. The motions have been fully briefed and are ripe for decision.
A. Dr. Michael E. Sadler.
A scheduling Order was entered by Magistrate Judge Peggy E. Patterson on May 17, 1994 providing, inter alia:
(1) That the provisions of the newly amended Rule 26(a)(2), Fed.R.Civ.P., effective December 1, 1993, will apply to this action.
(2) That the Plaintiff shall identify all expert witnesses and provide all Rule 26 information by October 31, 1994.
(3) That the Defendants shall identity all expert witnesses and provide all Rule 26 information by November 30, 1994.
[Record No. 11]. The original discovery deadline of December 30, 1994 was extended by agreed Order to February 15, 1995. [Record No. 16].
The plaintiffs counsel, Eugene F. Mooney, notified the defendants' counsel by letter dated March 15, 1995 that he had retained Michael E. Sadler, Ph.D. [Dr. Sadler], as an expert witness and provided a copy of Sadler's report and resume. Dr. Sadler examined the plaintiff on January 14, 1995. The defendants filed the instant motion to exclude the testimony of Dr. Sadler arguing that the plaintiff failed to comply with Rule 26 and the Court's discovery and disclosure deadlines. The defendants contend they will be prejudiced if the Court considers Dr. Sadler's report or if Dr. Sadler is permitted to testify.
The Court has the discretion to exclude the testimony of Dr. Sadler for the plaintiffs counsel's failure to comply with the Court's scheduling Order and Rule 26. Nonetheless, the Court will consider Dr. Sadler's report in ruling on the defendants' motion for summary judgment, with the understanding that the defendants have not had an adequate opportunity to rebut Sadler's report. Further, discovery will be reopened, but only to permit the defendants to depose Dr. Sadler and to have the plaintiff evaluated by the defendants' expert regarding the scope of Dr. Sadler's evaluation and report. Any prejudice by the extension of discovery is to the plaintiff as the trial will be postponed until the completion of the reopened discovery.
Hence, the defendants motion in limine [Record No. 22] will be denied.
B. Dr. Ronald M. Ross.
The defendants have also filed a motion to strike the deposition testimony of Dr. Ronald M. Ross [Dr. Ross]. Dr. Ross's deposition was taken in conjunction with the plaintiffs criminal trial. The defendants' counsel was not present at the time Ross's deposition was taken. The deposition was taken by Robertson's counsel and Ross was cross-examined by the prosecutor. The plaintiff has relied on part of this deposition testimony in response to the defendants' motion for summary judgment. The defendants argue that Dr. Ross's testimony is not admissible under Fed.R.Evid. 804(b)(1).
Rule 804(b)(1), Fed.R.Evid., provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the deposition is now offered, or, in a civil proceeding, if the party against whom the testimony is not offered, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.
Fed.R.Evid. 804(b)(1) (emphasis added).
In their motion to exclude Dr. Ross's deposition, the defendants focus on the issue of whether the prosecution had a similar motive in developing Ross's testimony by cross-examination. What both parties have failed to address, however, is whether Dr. Ross is now unavailable to testify. Rule 804(b)(1) expressly provides that to be excluded from the hearsay rule under the former testimony rule, the declarant must be unavailable. As there is no evidence that Dr. Ross is unavailable to testify in the instant circumstances, the defendants' motion to exclude [Record No. 31] will be granted as Dr. Ross's deposition testimony from the criminal action is hearsay.
C. Motion for Leave to file a Rebuttal Memorandum.
The plaintiff has filed a motion for leave to file a rebuttal memorandum to the defendants' reply in the instant motion for summary judgment. [Record No. 32]. Having reviewed all the pleadings, including the defendants' reply brief, and the plaintiffs tendered rebuttal memorandum, the Court finds that the defendants' reply brief does not raise new issues but is a recitation of issues previously addressed. Further, the plaintiffs rebuttal memorandum argues that the testimony of Dr. Ross establishes a genuine issue of material fact that the defendants exercised excessive force upon Robertson. As the Court has excluded the deposition testimony of Dr. Ross as hearsay, the plaintiffs rebuttal memorandum is moot. The plaintiffs motion will be denied.
III. MOTION TO AMEND THE PLEADINGS.
Robertson has moved the Court to amend the pleadings to identify Officer John Little as the party named in the original Complaint as John Doe and to add the Board of the Big Sandy Regional Detention Center as a defendant. [Record No. 20]. The defendants have objected to the plaintiff's untimely attempt to amend the Complaint. A review of the procedural history of this case is relevant in determining whether the plaintiff should be permitted to amend his complaint.
The complaint was filed on January 26, 1994. This Court entered a scheduling Order March 28, 1994 providing that all motions to amend the pleadings must be filed on or before December 30, 1994, and that all discovery must be completed by December 30, 1994. The plaintiffs criminal trial was conducted in June, 1994. The plaintiff did not move to amend his complaint until March 15, 1995 [Record No. 20].
A. John Doe.
In his complaint, the plaintiff named "John Doe" as a defendant and made the following allegation:
Defendant John Doe observed and participated in the physical beating of Plaintiff and denial of necessary medical treatment, but made no effort to restrain Defendant Pack, protect Plaintiff from the beating, render or obtain medical treatment for him, or prevent his malicious prosecution, and thereby knowingly and willingly participated in this misconduct.
[Record No. 1, p. 4 ¶ 19]. The plaintiff claims that he should be permitted to amend his pleadings to identify John Little as John Doe and that the pleadings should relate back to the date of filing. The Court disagrees.
The plaintiff knew as of June, 1994, via his criminal trial, that John Little was the officer involved in the alleged altercation at the Detention Center. Robertson had until December, 1994 to amend his pleadings, but did not. The statute of limitations has now run as the alleged cause of action arose on March 7, 1993. See Collard v. Kentucky Board of Nursing, 896 F.2d 179, 182 (6th Cir. 1990) (applying one year statute of limitations for § 1983 actions under Kentucky law).
Further, there is no relation back under Fed.R.Civ.P. 15(c). There is no evidence that Little knew at the time the complaint was filed that but for mistaken identity he would have been identified as a defendant. There is no evidence in the record that Little even knew of this action and the Court will not presume he did. The plaintiff did nothing to discover the identity of John Doe, which was easily discoverable, and the statute of limitations subsequently ran. Hence, as the Sixth Circuit has determined that a motion to amend should be denied where the amended complaint could not withstand a motion to dismiss, the plaintiffs motion to amend the pleadings to identify John Little as John Doe will be denied.
B. Big Sandy Regional Detention Center.
Robertson also has moved to amend his complaint to name the Board of the Big Sandy Regional Detention Center as a defendant. The defendants have objected claiming that as with John Little, the statute of limitations has run and there is no relation back. The Court finds, however, that the plaintiff may file his amended complaint to name the Board as a defendant and the filing time will relate back to the date of the original complaint.
The plaintiffs complaint is obvious that the plaintiff intended to sue the facility where the plaintiff was incarcerated on March 7, 1993. The facility is named as the Johnson County Regional Jail in the Complaint. The defendants' answer verifies this finding as the defendants admitted that the defendants Tackett and Pack were employed by the Big Sandy Regional Detention Center on March 7, 1993. Further, it is disingenuous to claim that the Board did not know that they should have been named as a party, as the defendant Tackett is a member of the Board. It is obvious that Tackett knew or should have known that the Detention Center had been sued and that the Board, as the entity governing the Detention Center should have been named, rather than Johnson County. Hence, the plaintiff will be permitted to amend his complaint to name the Board of the Big Sandy Regional Detention Center as a defendant.
As the plaintiffs tendered amended complaint includes the additional claims against both Little and the Board, the plaintiff will be given 10 days to file an Amended Complaint naming the Board as a defendant. If the defendants wish to take any additional discovery as to this defendant, they will be permitted to do so and granted a 30 day extension of time from the date of entry of this Order to reopen discovery for the limited purpose as to this defendant. Further, the defendants will be given an additional sixty (60) days from the date of entry of this Order to file a dispositive motion with regard to the Board.
IV. MOTION FOR SUMMARY JUDGMENT.
A "new era" for summary judgment practice has been ushered in as a result of three decisions handed down by the United States Supreme Court in 1986. See Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Street appraised the impact of the three cases, concluding with the following principles for summary judgment practice:
1. Complex cases are not necessarily inappropriate for summary judgment.
2. Cases involving state of mind issues are not necessarily inappropriate for summary judgment.
3. The movant must meet the initial burden of showing "the absence of a genuine issue of material fact" as to an essential element of the non-movant's case.
4. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.
5. A court should apply a federal directed verdict standard in ruling on a motion for summary judgment. The inquiry on a summary judgment motion or a directed verdict motion is the same: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
6. As on federal directed verdict motions, the "scintilla rule" applies, i.e., the respondent must adduce more than a scintilla of evidence to overcome the motion.
7. The substantive law governing the case will determine what issues of fact are material, and any heightened burden of proof required by the substantive law for an element of the respondent's case, such as proof by clear and convincing evidence, must be satisfied by the respondent.
8. The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment."
9. The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
10. The trial court has more discretion than in the "old era" in evaluating the respondent's evidence. The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Further, "[w]here the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent's claim is "implausible."Street, 886 F.2d at 1479-80.
A. Johnson County.
The defendants argue the plaintiff has failed to state a claim against Johnson County because Johnson County does not have independent control over the Big Sandy Regional Detention Center [Detention Center]. The Detention Center is governed by a Board appointed by the respective County Judge Executives of the member Counties, with four members from Johnson County, and two members from the remaining counties, and the Jailer of Johnson County, by virtue of his title.
The Court agrees that the plaintiff has failed to establish any relationship between Johnson County and the events leading to the action sub judice. The plaintiff has offered no proof otherwise. Hence, to the extent Johnson County has been named as a separate party, the plaintiffs claims will be dismissed.
B. The Defendants Tackett and Pack in their Official Capacities.
The defendants Tackett and Pack have been sued in their official capacities. A suit against an individual in his official capacity is the equivalent of a suit against the governmental entity. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68, 109 S.Ct. 2304, 2310, 105 L.Ed.2d 45 (1989)). In this action, Tackett and Pack were employees of the Big Sandy Regional Detention Center. The Big Sandy Regional Detention Center was established as a cooperative effort by Johnson, Martin, Lawrence and Magoffin Counties. The Regional Jail Authority manages the operation of the Detention Center through its Board, appointed by the respective County Judge Executives of the member counties. Hence, the defendants may be liable in their official capacities only if the plaintiff shows that the alleged constitutional deprivations occurred pursuant to, and as a direct result of, the Big Sandy Regional Detention Center's unconstitutional policy or custom. Matthews, 35 F.3d at 1049 (citing Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
1. Tackett — Official Capacity.
The plaintiff alleges that there was an institutionalized practice and custom at the Big Sandy Regional Detention Center, which was ratified by Tackett, that authorized the defendant officers to deny medical assistance to detainees, maliciously initiate prosecution against detainees, and employ excessive force against detainees. In addition, the plaintiff asserts that Tackett failed to supervise the defendant officers to prevent the use of excessive force, misuse of authority, denial of medical treatment and malicious prosecution of him. The defendants have moved for summary judgment against the plaintiff as to these claims against Tackett in his official capacity.
Under Monell, local government entities, such as municipalities, are liable for civil rights violations if those violations result from the implementation of their official policy or are due to a governmental "custom." Municipal liability can be found for constitutional deprivations due to governmental "custom" even though that custom has not received formal approval through the government's official decision-making channels. Frost v. Hawkins Board of Education, 851 F.2d 822, 827-28 (6th Cir. 1988) (citing Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36).
The Supreme Court issued general principles defining "policy" in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Court explained that official policy "often refers to formal rules or understandings — often but not always committed to writing — that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently over time." Id. at 480-81, 106 S.Ct. at 1299. Later, the Court focused Pembaur's guiding principles:
First, a majority of the Court [in Pembaur] agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability. Third, whether a particular official has "final policymaking authority" is a question of state law. Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business.City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (citations omitted) (emphasis in original).
To establish a claim against governmental officials in their official capacities, the burden of proof is on the plaintiff to show: (1) the existence of an unconstitutional policy, (2) the connection of the policy to the municipality itself, and (3) a causal link between the unconstitutional policy and the particular injury alleged. Jones v. Lewis, 874 F.2d 1125 (6th Cir. 1989), cert. denied, ___U.S.___ 113 S.Ct. 125, 121 L.Ed.2d 80 (1992).
Despite the plaintiffs vague allegations of unconstitutional policies relating to use of excessive force, misuse of authority, denial of medical treatment and malicious prosecution, he has presented no evidence of any policies existing at the Detention Center or by the Regional Jail Authority. In addition, Robertson has failed to establish that either Tackett or Pack had final policymaking authority with regard to jail policies. In fact, in Kentucky jailers lack this authority as a matter of law. See Johnson v. Hardin County, Kentucky, 908 F.2d 1280, 1287 (6th Cir. 1990).
The plaintiff has also raised the issue of inadequate training and failure to supervise as a basis for § 1983 liability against Johnson County and Tackett. The seminal case on inadequate training and failure to supervise is City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In Canton, the city of Canton appealed a Sixth Circuit decision which held that a municipality could be liable for inadequately training its police force where the municipality recklessly, intentionally, or with gross negligence failed to train its officers under circumstances which a deprivation of constitutional rights was substantially certain to result. The Supreme Court found this standard too broad and narrowed the basis for liability:
[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact with.Id. at 388, 109 S.Ct. at 1204. See also Leach v. Shelby County Sheriff 891 F.2d 1241, 1247 (6th Cir. 1989) (explaining Canton). Hence, in order to hold a governmental entity liable under § 1983 for failure to train adequately, the plaintiff must prove that the training program is inadequate to the task an officer must perform; that the inadequacy is the result of deliberate indifference; and that the inadequacy is "closely related to" or "actually caused" the plaintiffs injury. Matthews, 35 F.3d at 1049 (citing Canton, 489 U.S. at 390-91, 109 S.Ct. at 1205-06).
The record contains no evidence that the defendant officers were inadequately trained or inadequately supervised. In an affidavit attached to the defendants' memorandum in support of their motion for summary judgment, Tackett stated that all deputies of the Big Sandy Regional Detention Center receive the training mandated by Kentucky state law and the Corrections Cabinet. At Robertson's criminal trial, Pack testified that he received all the training required in addition to three weeks training dealing specifically with the Detention Center. In response, the plaintiff alleges that the Commonwealth of Kentucky Department of Corrections has no record of Todd Pack attending any of its training courses. The plaintiff attached a copy of a letter from the Department of Corrections indicating that Pack had not received training there.
A question of fact regarding the adequacy of Pack's training does not necessarily resolve the issue of the Detention Center's liability. The Canton court considered this issue and determined "[t]hat a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Canton, 489 U.S. at 390-91, 109 S.Ct. at 1206. As Robertson has failed to make any showing of a faulty training program, the defendants' motion for summary judgment on the plaintiffs § 1983 failure to train/supervise claim will be granted.
2. Pack — Official Capacity.
As Robertson's claim for inadequate training was made against Pack in his official capacity, which is a suit against the municipality (Big Sandy Regional Detention Center), these claims for inadequate training failure to supervise must likewise be dismissed.
3. Tackett — Individual Capacity.
Robertson has sued the defendant Tackett in his individual capacity for failure to supervise. Robertson contends that the lack of evidence of an "incident report" reporting the altercation with Pack is sufficient for a reasonable jury to conclude that there was a policy allowing the officers to decide for the county whether a report should be produced. The plaintiff contends that Johnson County, the Big Sandy Regional Detention Center and Tackett all failed to take measures guaranteeing that such incidents were formally reported. In addition, Robertson asserts that a jury could reasonably infer that Tackett acted with "deliberate indifference" in denying the plaintiff medical treatment by failing to ensure that altercations were recorded in incident reports.
The defendants assert that Robertson's claim against Tackett in his individual capacity should be dismissed because liability for failure to train or supervise attaches to a municipality, rather than to an individual defendant under Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).
The plaintiff fails to consider that Tackett, as the jailer and supervisor, can be liable in his individual capacity for failing to supervise, control, or train the offending officers only upon a showing that Tackett either "encouraged or in some way directly participated in [the unconstitutional conduct]." Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989) (quoting Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir. 1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982)). The Sixth Circuit has determined that "[a]t a minimum, a plaintiff must show that the official at least implicitly authorized, approved or knowingly acquiesced to the unconstitutional conduct of the offending [employees]." Id. The plaintiff has not made this showing. Despite Robertson's contention otherwise, there is no genuine issue of material fact as to whether Tackett failed to supervise his employees in such a manner to subject him to § 1983 liability.
Hence, Robertson's claim for failure to supervise against Tackett in his individual capacity will be denied.
4. Pack — Individual Capacity.
Robertson alleges that the defendant Pack violated his constitutional rights by exhibiting deliberate indifference to his need for medical treatment while detained, by maliciously prosecuting him, and by employing excessive force against him during his confinement. The defendant has moved for summary judgment as to each of these claims, which will be addressed below individually.
a. Deliberate Indifference to Serious Medical Needs.
Robertson contends that Pack was deliberately indifferent to his serious medical needs when Pack refused to obtain medical treatment for him after Pack hit him in the detoxification cell. Robertson claims Pack ignored his requests for medical attention and to make a telephone call Robertson asserts he made this request as Pack was leaving the cell. Robertson maintains that an unidentified voice came over the loudspeaker and told him to "shut up or more charges would be filed" against him. Robertson also asserts that when he awoke around 2:00 p.m. he was suffering sever stomach pain, dizziness, a severe headache, and soreness in his neck and his request for medical treatment was again denied, but not by Pack. The plaintiff was allowed to speak to his sister by telephone at 7:00 p.m. and was released on bond at approximately 10:00 p.m. The next morning the plaintiff sought medical treatment for his alleged injuries.
Pack asserts he is entitled to summary judgment on Robertson's deliberate indifference to serious medical needs claim because after Robertson was placed in the detox cell, Pack had no further contact with Robertson. Pack maintains that Robertson's initial request for medical treatment was addressed by an unknown jail official over the intercom, and did not involve him. Pack also contends that Robertson's alleged subsequent requests for medical care were not made to him. Finally, Pack argues that Robertson has failed to establish that he was experiencing a serious medical need during his incarceration at the Detention Center. Hence, Pack contends that Robertson has failed to establish that Pack was deliberately indifferent to any alleged need.
At the time of the plaintiffs incarceration, he was a pretrial detainee. The Sixth Circuit has determined that the Eighth Amendment cruel and unusual punishment analysis used by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), is applicable to pretrial detainees. Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989) (citing Roberts v. City of Troy, 773 F.2d 720, 722 (6th Cir. 1985)). Hence, a pretrial detainee's due process rights are violated if jail officials exhibit a deliberate indifference to the medical needs of the detainees that is tantamount to an intent to punish. Id.
There is a question of fact whether Robertson asked Pack for medical help for the injuries he allegediy sustained. Even if the plaintiff did not directly solicit Pack's help, if Robertson's injuries were obvious to Pack, then Pack may be liable for deliberate indifference to Pack's medical needs. Further, there is a question of fact whether Pack was suffering a serious medical need during his incarceration.
It is undisputed that the plaintiff had recently undergone surgery for an appendectomy preceding his incarceration. Further, Dr. Sadler's examination of the plaintiff the day after Robertson's incarceration reveals that Robertson did suffer some kind of injuries while incarcerated. (Whether those injuries were caused by Pack is not relevant for purposes of the deliberate indifference to medical needs claim). If the plaintiff was injured and needed medical attention and Pack knew of Robertson's need, but failed to get him help, then Robertson may be liable. Hence, Pack's motion for summary judgment on Robertson's deliberate indifference to serious medical needs claim will be denied.
b. Excessive Force.
Robertson also alleges that Pack used excessive force against him on two separate occasions in violation of the Fourteenth Amendment. Pack argues that the plaintiff is collaterally estopped from bringing a § 1983 excessive force claim under Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), because the issues were litigated and decided in June, 1994 at Robertson's criminal trial in which Robertson was convicted of menacing. Robertson, on the other hand, contends that all the facts were not litigated in the criminal trial. Robertson maintains that he was beaten on two separate occasions during his incarceration at the Detention Center — during booking [the first alleged incident] and later in the detox cell [the second alleged incident]. The Court agrees that Robertson is collaterally estopped under Allen from bringing a § 1983 excessive force claim upon the second alleged incident, but there is no preclusion relating to the first alleged beating in the booking area. Moreover, Robertson is precluded from bringing a § 1983 action on the second alleged incident under the auspices of Heck v. Humphrey, ___U.S.___, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
A review of the transcript from the criminal proceedings is necessary in establishing that a jury determination has already been made regarding the second alleged beating supposedly occurring in the detox cell. The jury found, beyond a reasonable doubt, that Robertson "intentionally placed Todd Pack in reasonable fear of immediate physical injury by attempting to strike Todd Pack with his fist; and [t]hat in doing so, [Robertson] was not privileged to act in self protection." [Trial transcript, p. 109]. The trial transcripts show that the same arguments made in response to the instant motion for summary judgment relating to the second alleged incident were rejected by the jury in Robertson's criminal trial.
Robertson was tried for the offense of menacing, among other things, in which the jury was instructed to return a verdict of guilty against Robertson on the menacing charge if the jury found beyond a reasonable doubt that on March 7, 1993 Robertson intentionally placed Todd Pack in reasonable fear of immediate physical injury by attempting to strike Todd Pack with his fist; and that in doing so, Robertson was not privileged to act in self-protection. In support of his self-defense theory, Robertson asserted that Pack and Little had beaten him and hence Robertson's actions were in self-defense of Pack and Little's actions. These facts surrounded the event in the detox cell, i.e., the second alleged incident.
Robertson's counsel, Tom Roberts [Roberts], first set forth Robertson's theory in his opening statement:
[Robertson] asked for a blanket. Instead of a blanket, he was beaten to the extent that it tore open his appendectomy that had been mended only three weeks before. They didn't take him to the hospital. They wouldn't help him. He paid a price — a price he shouldn't have to pay.
[Record No. 19, Exh. A, Trial Testimony, p. 10].
Pack was the first witness called by the Commonwealth. On direct examination, Pack testified that Robertson was belligerent and unruly during the booking process and due to Pack's uncooperation the booking process was halted and Robertson was escorted by Pack and Little to a detoxification cell. Pack admitted punching Robertson in the mouth one time, but denied any other physical confrontation. Pack gave the following recitation:
Q. So based on the way the [booking] interview was progressing, you all decided it would be best to go ahead and end it and place him in a cell. Is that what you testified to?
A. Yes, sir.
Q. So who was going to place him in the cell?
A. Usually, the person that takes the personal property off will go do that. But the situation being what it was, me and Mr. Little both decided to take him back. That would avoid a confrontation.
Q. What do you mean "the situation being as it was"?
A. Well, he was belligerent toward both of us. You try to avoid those confrontations. So if it takes five people to escort somebody back to the cell, you'll do that. If it just takes one, you'll do that. You do what you can to avoid a confrontation.
Q. And what happened as you were taking him to the cell?
A. As we were taking him to the cell, Mr. Little was on one side and I was on the other. We both had an arm and was just escorting him back. We got to the cell. The door was unlocked, as it would have been an empty cell. It was a detox cell. He was in there by hisself [sic]. We placed Mr. Robertson in a cell, and Mr. Little turned around to come on out of the cell; and I was backing up out of the cell. Mr. Robertson jumped off the bench and swung a punch. And before his punch landed, mine landed. And he sat back down on the bench. We got the cell door locked, went back outside (inaudible). And then he started, "I'm gonna own this place. I'm gonna sue this place. You're gonna work for me." You know, all this stuff.
[Record No. 19, Exh. A, Trial Testimony, pp. 18-19].
On cross-examination, Roberts questioned Pack regarding this incident. Roberts specifically asked Pack whether Pack struck Robertson other than hitting him in the mouth. Pack denied the same:
Q. All right. I understand your testimony earlier was that you only struck Mr. Robertson one time in the mouth. Is that correct, sir?
A. Yes, sir.
Q. It drawed [sic] blood, didn't it?
A. Yes, sir; it did.
Q. That was the only time you struck him. Is that correct?
A. Yes, sir.
[Record No. 19, Exh. A., Trial Testimony, p. 44]. Roberts tried to elicit further testimony from Pack regarding Robertson's allegation that Pack had beaten him:
Q. And you sat down twenty minutes later after the incident, and the incident was you inflicted several blows and struck and kicked the Defendant on several occasions during that minute and a half back in that cell.
And that's why you filled this out and charged him, wasn't it?
A. No, sir; it wasn't.
[Record No. 19, Exh. A., Trial Testimony, p. 56].
Robertson took the stand and presented his version of the events to the jury:
Q. Tell the jury what happened after — or during the booking process, in your own words; and what happened to you when you left the booking area and went into some other portion of the building. In your own words, tell us what happened.
. . . . .
A. I was — previously before that, I was told to shut my F-ing [deletion in original] mouth by Mr. Pack. I was escorted to — behind a big, brown, metal door with no windows in it. I knew that much. And then I was thrown to the floor. I was kicked several times in my abdomen. I was picked completely up off the ground by my throat with both hands by Mr. Pack, and my head was banged against a wall — I counted three times. And then they led me on in — tried to throw me into the cell.
Q. Did you, at any time, try to protect yourself from these blows which you've just described?
A. Yeah. I was balled up into like a ball in the floor.
Q. While you were balled up like a ball on the floor, did anyone strike you?
A. Yes, they did.
Q. Who was it?
A. Mr. Pack and Mr. Little.
Q. What did they do?
A. As I stated before, I was kicked. My head was banged against the concrete wall, and I was hit in the mouth.
[Record No. 19, Exh. A., Trial Testimony, pp. 50-51].
In addition, Robertson read the deposition of Dr. Ross into evidence regarding the alleged injuries Robertson sustained during his incarceration. Dr. Ross testified to the following findings upon his examination of Robertson the day after Robertson was released from the Detention Center:
Q. What were your findings after that examination [of Robertson]?
A. Well, he had multiple abrasions. He had some cervical area injuries, a number of bruises around the neck and on the legs. And he had a great deal of tenderness in the abdomen around the area of the surgical scar.
[Record No. 19, Exh. A., Trial Testimony, p. 106].
Finally, in his closing argument, Robertson's counsel petitioned the jury to believe that Robertson had been beaten by Pack and Little, rather than Pack and Little's testimony that it was Robertson who had been belligerent and aggressive. See [Record No. 19, Exh. A., Trial Testimony, pp. 113, 115].
i. Heck v. Humphrey.
In Heck v. Humphrey, ___ U.S.___, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that to recover damages in a § 1983 action that would effectively undermine the plaintiffs state conviction, the plaintiff must prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or has been called into question by a federal courts s issuance of a writ of habeas corpus. Id. at ___, 114 S.Ct. at 2372. In addition, the Court stated:
A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.Id. at ___, ___ 114 S.Ct. at 2372-73.
Applying these standards in the instant action, it is clear that Robertson is precluded from bringing a § 1983 action based on the second alleged incident in the detox cell. If the jury had believed Robertson's testimony that he was beaten in the detox cell, then they would have accepted his self-defense theory. The jury's determination that Robertson was guilty of menacing was obviously a rejection of Robertson's version of events. The same facts are in issue here relating to the second alleged incident that were in dispute in Robertson's criminal trial. Therefore, as Robertson has failed to establish that his sentence has been reversed on direct appeal or expunged by executive order or declared invalid by a state tribunal authorized to make such a determination, he is precluded from bringing a § 1983 action based upon the same facts. Accordingly, Robertson's § 1983 excessive force claim based upon the second alleged incident will be dismissed.
ii. Allen v. McCurry.
Robertson's § 1983 claim on the second alleged incident is also barred by the Full Faith and Credit Clause as provided for in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). It is a wellsettled principle that Full Faith and Credit statute, 28 U.S.C. § 1738 , governs § 1983 actions. See Gutierrez v. Lynch, 826 F.2d 1534, 1536-37 (6th Cir. 1987) (citing Allen, 449 U.S. at 97, 101 S.Ct. at 416). Hence, in certain circumstances, federal courts are required to give state court judgments preclusive effect, at least on the grounds of collateral estoppel or issue preclusion, if not claim preclusion. Id. at 1537 (citing Allen, 449 U.S. at 97, n. 10, 101 S.Ct. at 416, n. 10). The Sixth Circuit has explained the obvious import of Allen:
The Full Faith and Credit Statute provides, in relevant part,
The records and judicial proceedings of any court of any . . . State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States. . . .
Such acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.28 U.S.C. § 1738.
[I]f a plaintiff has had the opportunity to fully litigate certain issues in a state court proceeding, and the state court has decided those issues adversely to him, § 1738 precludes him from raising those issues in a subsequent § 1983 suit in federal court.Id.
The preclusive effect of a prior state court decision is normally determined by state law. Id. See also Wicker v. Board of Education of Knott County, Kentucky, 826 F.2d 442, 450 (6th Cir. 1987) (citing Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)). This Court cannot give greater preclusive effect to state court decisions than would the Kentucky courts. Id. (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 384, 105 S.Ct. 1327, 1334, 84 L.Ed.2d 274 (1985)).
In Wicker, the Sixth Circuit examined Kentucky law on this issue and determined that "Kentucky courts accord preclusive effect only to issues that actually or necessarily determined the relevant claim." Id. (citing Sedley v. City of West Buechel; 461 S.W.2d 556 (Ky. 1970)). In Sedley, the Kentucky Supreme Court stated:
The general rule is that a judgment in a former action operates as an estoppel only as to matters which were necessarily involved and determined in the former action, and is not conclusive as to matters which were immaterial or unessential to the determination of the prior action or which were not necessary to uphold the judgment. The rule has been applied although such matters were presented in the former action and actually determined therein, and although they may affect the ultimate rights of the parties.Sedley, 461 S.W.2d at 558. Applying this standard, it is clear the Kentucky state courts have determined whether the defendants in the instant action exercised excessive force upon Robertson as to the second alleged incident.
By returning a verdict of guilty against the defendant for menacing, the jury clearly rejected Robertson's defense that Pack and Little beat him and that Robertson was acting in self-defense. Hence, under the standards set forth in Allen and Sedley, the undersigned concludes that as a matter of law, Robertson is collaterally estopped from bringing the instant § 1983 action for excessive force as to the second alleged incident.
Hence, there is no genuine issue of material fact to be resolved by a jury in the instant action upon Robertson's § 1983 excessive force claim. Accordingly, Robert's excessive force claim will be dismissed against all defendants.
c. Malicious Prosecution.
Robertson has also filed a § 1983 claim for malicious prosecution. Just as the plaintiff's excessive force claim was dismissed under Heck, so must his malicious prosecution claim as Roberton's menacing conviction has not been overturned. See Heck, ___U.S.___ at ___ 114 S.Ct. at 2374 (holding that a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiffs favor).
C. QUALIFIED IMMUNITY.
The defendants Tackett and Pack contend they are entitled to qualified immunity. Generally, officials who perform discretionary functions have at least qualified immunity from individual liability for damages that have resulted from exercising their discretionary functions. Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir. 1991). The question of whether an official is protected by qualified immunity, however, no longer turns on the subjective good faith of the defendants, but rather turns on the "objective legal reasonableness" of the action, assessed in light of the legal rules that were "clearly established" at the time it was taken. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Under this objective legal reasonableness standard, individual claims of immunity must be analyzed on a fact-specific, case by case basis to determine whether the plaintiffs federal or constitutional rights were so clearly established when the alleged misconduct was committed that any official in the defendant's positions would understand that what one is doing violates those rights. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The Anderson Court held:
[T]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official's action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.Id. Further, the resolution of qualified immunity is purely a question of law and the trial judge bears the ultimate responsibility of resolving the questions raised by a defense of qualified immunity. Heflin v. Stewart Conuty, Tenn., 958 F.2d 709, 717 (6th Cir. 1992) (citing Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988)).
The burden of proof is on the plaintiff to show that the defendants are not entitled to qualified immunity. The defendants bear the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary authority during the incident in question. Thereafter, the burden shifts to the plaintiff to establish that any official in the defendant's position would have clearly understood that they were under an affirmative duty to refrain from such conduct. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992) (citing Wegener v. Covington, 933 F.2d 390, 393 (6th Cir. 1991)). If there is a factual dispute, however, involving an issue on which the question of immunity turns, such that it cannot be determined before trial whether the defendants' actions violated clearly established rights, then summary judgment is inappropriate. Rich, 955 F.2d at 1095 (citing Poe, 853 F.2d at 426).
In Rich, the Sixth Circuit Court of Appeals reviewed the analysis a district court must consider when determining whether an official is entitled to qualified immunity:
[t]o determine if the defendant police officers' actions violated any clearly established constitutional rights such that they would not be entitled to rely on qualified immunity, it is necessary for the Court to decide (1) whether there is a factual dispute on which the question of their immunity turns, and (2) what the state of the law was on [the date of the alleged violation].Rich, 955 F.2d at 1095. The Sixth Circuit recently reaffirmed this holding in Pray v. Sandusky, 49 F.3d 1154 (6th Cir. 1995), when it held:
We realize that qualified immunity is a question of law and should be resolved at the earliest possible moment. Nevertheless, summary judgment is not appropriate if there are factual disputes involving an issue on which the question of immunity turns, "such that is cannot be determined before trial whether the defendants did acts that violated clearly established rights." Poe, 853 F.2d at 426. As stated by the panel of this court, many times "the jury becomes the final arbiter of [the defendants'] claim of immunity, since the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury." Brandenburg v. Cureton, 882 F.2d 211, 215-216 (6th Cir. 1989).Id. at p. 1161.
1. Tackett.
As all of the plaintiff's claims against Tackett have been dismissed and there is no genuine issue of material fact relating the Robertson's claims against Tackett, Tackett is entitled to qualified immunity from all of Robertson's claims.
2. Pack.
All of the plaintiffs claims have not been dismissed against Pack, however. To the extent the plaintiffs excessive force claim relating to the second alleged incident has been dismissed against Pack, then Pack is entitled to qualified immunity. To the extent, however, there are genuine issues of material fact regarding the first alleged incident and Pack's deliberate indifference to Robertson's medical needs, the motion for qualified immunity will be denied.
The Sixth Circuit has clearly provided that if there is a genuine issue of material fact upon which the issue of qualified immunity turns, the official is not entitled to qualified immunity. See Pray, 49 F.3d at 1154. In the case sub judice, there is a genuine issue of material fact whether Robertson was beaten by Pack during the booking process and whether Pack was deliberately indifferent to Robertson's medical needs in failing to obtain medical treatment for him.
CONCLUSION
In accordance with the foregoing,
IT IS HEREBY ORDERED:
(1) That the defendant's motion to preclude the plaintiff from introducing the expert testimony of Dr. Michael E. Sadler [Record No. 22] be, and the same hereby is, DENIED.
(2) That the defendants shall have 30 days from the date of entry of this Order to depose Dr. Sadler and to have the plaintiff evaluated by the defendants' expert regarding the scope of Dr. Sadler's evaluation and report.
(3) That the defendants' motion to strike the deposition testimony of Dr. Ronald M. Ross shall be, and the same hereby is, GRANTED.
(4) That the plaintiff's motion for leave to file a rebuttal memorandum [Record No. 32] be, and the same hereby is, DENIED.
(5) That the plaintiffs motion to file an amended complaint [Record No. 20] be, and the same hereby is, DENIED IN PART AND GRANTED IN PART.
(6) That the plaintiff shall have ten (10) days from the date of entry of this Order in which to file an amended complaint adding the Board of the Big Sandy Regional Detention Center as a defendant.
(7) That discovery shall be reopened for thirty (30) days from the date of entry of this Order for the limited purpose relating to the amended complaint.
(8) That dispositive motions with regard to the amended complaint shall be filed within sixty (60) days of the date of entry of this Order.
(9) That the defendants' motion for summary judgment [Record No. 16] be, and the same hereby is, GRANTED IN PART AND DENIED IN PART.
(10) That the plaintiffs § 1983 claims for excessive force based upon the second alleged incident in the detox cell be, and the same hereby is, DISMISSED as against ALL DEFENDANTS.
(11) That the plaintiffs claims against the defendants Tackett and Pack in their official capacities be, and the same hereby are, DISMISSED.
(12) That the plaintiffs claim for inadequate training/failure to supervise against the defendant Tackett in his individual capacity be, and the same hereby is, DISMISSED.
(13) That the defendant Tackett, in his official and individual capacities, be, and he hereby is, DISMISSED.
(14) That the plaintiff's § 1983 claims for malicious prosecution be, and the same hereby are, DISMISSED.
(15) That the motion of the defendant Tackett for qualified immunity be, and the same hereby is, GRANTED.
(16) That the motion of the defendant Pack for qualified immunity be, and the same hereby is, GRANTED to the extent of the plaintiffs claim relating to the second alleged incident in the detox cell.
(17) That the plaintiffs claims against the defendant Johnson County be, and the same hereby are, DISMISSED.