Gardner v. Kenton Cnty.

FRANCES GARDNER, ETC. PLAINTIFF

v.KENTON COUNTY, ET AL. DEFENDANTS

CIVIL ACTION NO. 09-70 (WOB-JGW)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION COVINGTON

Date: December 19, 2012

MEMORANDUM OPINION AND ORDER

This is an action by the administrator of the estate of a former pretrial detainee at the Kenton County Detention Center ("KCDC") against Kenton County Fiscal Court ("Kenton County"), a number of administrators at the jail in their official and individual capacities, and the individual convicted of the murder of the decedent. Pursuant to 42 U.S.C. § 1983, Plaintiff has alleged violations of the Eighth and Fourteenth Amendments. Additionally, Plaintiff has brought state law claims under theories of respondeat superior, negligent supervision, and wrongful death.

This matter is before the Court on the joint motion for summary judgment of Defendants, Terry Carl, G. Scott Colvin, Kim Roberts, and Terri Portwood ("Individual Defendants"), (Doc. 70) and the motion for summary judgment of Defendant Kenton County (Doc. 71).

The Court heard oral argument on these motions on Thursday, December 13, 2012. Randy Byrd represented the Plaintiff; Mary Ann Stewart represented the Individual Defendants; andChristopher Scott Nordloh represented Kenton County. Official court reporter Joan Averdick recorded the proceedings.

Having heard the parties, the Court now issues the following Memorandum Opinion and Order.

Factual and Procedural History

On Friday, March 27, 2009, Isaac Jackson ("Jackson") was arrested and charged with giving a police officer a false name or address. See Deposition of Lt. Hilton Humphrey, Ex. D. The charge is a Class B Misdemeanor under Kentucky law. Jackson was transported to the Kenton County Detention Center ("KCDC") at approximately 5:30 pm. Id. The following day, Staff Sergeant Ryan Sims classified Jackson as "Restricted Custody" and assigned him to cell 921.¹ Id. Tragically, in the early morning of March 29, 2009, Jackson was murdered by Marion Parker, III, one of Jackson's cellmates in cell 921.

Inmates at the KCDC can be classified into one of five different custody levels. See Doc. 71, Ex. 10. An inmate's custody level is generally based on the inmate's current charge, criminal history, and previous institutional behavior. Id. Each inmate is given a different-colored armband to signify his custody level. Id. The level termed "Restricted Custody" is reserved for "inmates [that] have either a history of violentoffenses or a violent institutional behavior."² Id. Kenton County's classification system, known as JailTracker, is designed to use objective criteria to determine the appropriate custody level for each inmate. See Deposition of Terence Carl at 16-17.

Using the JailTracker system, deputies answer a series of yes-or-no questions pertaining to the inmate. See Sims Depo. at 13-14. One of the classification questions asks whether the inmate has committed a violent felony within the past twenty (20) years. See Doc. 71-12. An answer of "yes" to this question will result in a "Restricted Custody" classification for that inmate. See Humphrey Depo. at 18-19; see also Doc. 71, Ex. 12.

In this case, Sgt. Sims answered "yes" to this question based on Jackson's 1991 conviction for aggravated robbery, andthe JailTracker software classified Jackson as "Restricted Custody." See Sims Depo. at 27; see also Doc. 71-12.

Subsequently, Jackson was placed in cell 921, with five (5) other inmates who were also classified as "Restricted Custody." See Humphrey Depo., Ex. D. Three of Jackson's cellmates, Marion Parker, Brian Golsby, and Toshawn Sims, were detained on murder charges. Id.

At some point in the late evening of March 28, 2009, or the early morning hours of March 29, 2009, Jackson and Parker had an altercation outside of the bathroom. See Marion Parker Confession (Doc. 71-4) at p. 68-69. Parker punched Jackson a few times, but voluntarily backed off. Id. There is nothing in the record which indicates, nor does the Plaintiff allege, that this altercation was seen by a deputy at the KCDC.

Shortly after this altercation, Jackson tapped on the cell door to get the attention of Deputy Shawn Grueser, who had only been on the job for two weeks. See Deputy Shawn Grueser Deposition at 8, 17; see also Parker Confession at p. 81. From inside his cell, Jackson asked Deputy Grueser if he could speak with the Staff Sergeant.³ Deputy Grueser testified he told Jackson he would notify his Staff Sergeant, but Jackson responded that, instead, he would write down his statement. SeeGrueser Depo. at 17. Deputy Grueser testified that he notified his Field Training Officer, Deputy Albert Hopple, and the Staff Sergeant on duty, Sgt. Jeremy Miller, that Jackson wanted to speak with the Staff Sergeant. Id. at 20-21.

However, Deputy Hopple and Sgt. Miller both deny that Deputy Grueser attempted to contact them about Jackson's request. See Deposition of Deputy Albert Hopple at 21; see also Deposition of Sergeant Jeremy Miller at 28.

At approximately 4:00 a.m. and while on his rounds, Deputy Grueser approached Jackson to see if he was finished with his note for the Staff Sergeant. Id. at 21-22. While speaking with Jackson, Deputy Grueser heard a loud noise coming from another cell and he went to investigate the noise. Id. at 22. At approximately 5:15 a.m., Deputy Grueser again approached Jackson's cell. Id. at 23-24. From outside the cell, Deputy Grueser asked Jackson if he was finished with his note, but fellow cellmate, Toshawn Sims, responded, "No, he's fine." Id. at 24, Ex. V. Deputy Grueser testified that he did not inquire any further since the lights were out and he "had no reason to feel that anything had happened." Id.

According to Parker, it was between 4:30 a.m. - 5:00 a.m. that he murdered Jackson by strangulation. See Parker Confession at p. 74-75. Parker testified that Jackson did not scream or yell, but he hit Jackson's head against the groundduring an initial struggle. Id. at 76, 78. Parker stated that this altercation lasted only about two minutes. Id.

After Jackson was dead, Parker cleaned up blood with the towel, put Jackson back in his bed, and attempted to flush the towel down the toilet. Id. at 77-79. Jackson's body was not discovered until after lunch the following day, March 29, 2009, when the toilet backed up into the cell. See Parker Depo. at 20-22.

In fact, deputies did a head count and served both breakfast and lunch to the cell without discovering Jackson's body. The KCDC officials admit that protocol was not followed in regard to these instances. See Wernher Stilt Deposition at 14, 17.

Following Jackson's death, his mother, Frances Gardner, was appointed the administrator of his estate. See Complaint at ¶ 5. In her capacity as such, Gardner has brought suit against Kenton County Fiscal Court and against Terence Carl, G. Scott Colvin, Kim Roberts, and Terri Portwood,⁴ seeking to hold each liable in his or her official and individual capacities forJackson's death.⁵ Plaintiff also filed a claim against Marion Lawson Parker, III for wrongful death. See Complaint at ¶ 48.

Analysis

"To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law." Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). A pretrial detainee's Fourteenth Amendment due process claim for failure to protect is analyzed using the same standard as the Eighth Amendment.⁶ See Peart v. Seneca County, 808 F. Supp. 2d 1028, 1031 (N.D. Ohio 2011). The Eighth Amendment imposes a duty upon custodians of inmates to protect them from violence at the hands of other prisoners. See Farmer v. Brennan, 511 U.S. 825, 833 (1994).

To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, a plaintiff must prove that the defendants acted with "deliberate indifference" to a substantial risk of serious harm. Id. at 834.

Defendants are liable for deliberate indifference if there was a substantial risk of serious harm to the plaintiff, defendants knew of the risk, and defendants disregarded the risk. See Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997). Deliberate indifference is "a stringent standard of fault." Bd. of the Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). "[A] plaintiff ordinarily cannot show that a municipality acted with deliberate indifference without showing that the municipality was aware of prior unconstitutional actions of its employees and failed to respond." Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997).

1. Constitutional Deprivation

Plaintiff asserts that Jackson's classification as "Restricted Custody" violated his rights under the Eighth and Fourteenth Amendments. See Doc. 80 at p. 4. Additionally, Plaintiff asserts that these same rights were violated by deliberate indifference to Jackson's safety and security on the ninth floor of the KCDC. Id. Since Plaintiff must assert aconstitutional deprivation to succeed on her § 1983 claims, see Russo, 953 F.2d at 1042, this issue will be examined in regards to all Defendants.

A. Classification Procedure

Plaintiff asserts that the implementation and use of the JailTracker system, which classified Jackson as "Restricted Custody" based upon a 1991 aggravated robbery conviction, led to Jackson's placement in a cell with Parker and, ultimately, Jackson's death. See Doc. 80 at pp. 4-6; Doc. 82 at pp. 6-7.

Plaintiff avers that use of this classification system constituted deliberate indifference to a substantial risk that Jackson would be murdered by Parker. Id. However, Plaintiff has failed to establish that the classification policy subjected Jackson to a substantial risk of serious harm or that any Defendant knew of a substantial risk of harm associated with the classification policy and chose to disregard it. Theref...