759 F.3d 573 (6th Cir. 2014), 13-4203, Cordell v. McKinney

Docket Nº:13-4203
Citation:759 F.3d 573
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:PHILLIP CORDELL, Plaintiff-Appellant, v. GLEN MCKINNEY, Defendant-Appellee
Attorney:Margaret McKay, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant. Joshua R. Schierloh, SURDYK, DOWD & TURNER CO., L.P.A., Miamisburg, Ohio, for Appellee. David Singleton, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant. Joshua R. Schierloh, SURDYK, DOWD & TURNER CO., L....
Judge Panel:Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.[*]
Case Date:July 16, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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759 F.3d 573 (6th Cir. 2014)

PHILLIP CORDELL, Plaintiff-Appellant,


GLEN MCKINNEY, Defendant-Appellee

No. 13-4203

United States Court of Appeals, Sixth Circuit

July 16, 2014

Argued June 25, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 3:11-cv-00231--Timothy S. Black, District Judge.


Margaret McKay, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant.

Joshua R. Schierloh, SURDYK, DOWD & TURNER CO., L.P.A., Miamisburg, Ohio, for Appellee.


David Singleton, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant.

Joshua R. Schierloh, SURDYK, DOWD & TURNER CO., L.P.A., Miamisburg, Ohio, for Appellee.

Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.[*]


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Phillip Cordell filed suit under 42 U.S.C. § 1983 alleging that Deputy Sheriff Glen McKinney ran afoul of the Constitution's guarantees under the Eighth Amendment when he slammed Cordell, who was handcuffed and restrained, headfirst into a concrete wall. The district court rejected Cordell's suit, granting summary judgment and qualified immunity to Deputy McKinney. A genuine dispute as to several material facts exists, however, and if Cordell's version of events is credited, a reasonable jury could conclude that Deputy McKinney inflicted serious pain upon Cordell with malicious and sadistic intent. Moreover, we conclude that any reasonable jail official would know that the Eighth Amendment prohibits the conduct that Cordell accuses Deputy McKinney of exhibiting in the particular factual circumstances in which that conduct occurred. As a result, we REVERSE the district court's grants of summary judgment and qualified immunity, and we REMAND for further proceedings consistent with this opinion.


From November 7, 2008 until July 23, 2009, Cordell was an inmate at the Greene County Jail in Xenia, Ohio. R. 26-1 at 20:7-17 (Cordell Dep.) (Page ID #133). On July 13, he pleaded guilty to involuntary manslaughter. Id. at 17:2-16 (Page ID #130). Afterwards, Cordell was in a cell on the second floor of the jail as he awaited transfer to a state penitentiary to serve his sixty-month sentence. Id. at 19:13-15 (Page ID #132).

In the late afternoon of July 20, McKinney was the deputy sheriff charged with overseeing the inmates on the second floor. R. 29 at 12:8-14 (McKinney Dep.) (Page ID #249). As Deputy McKinney performed his initial rounds on the floor, several inmates, including Cordell, requested haircuts. Id. at 12:15-18 (Page ID #249). According to Cordell, Deputy McKinney responded to this request by stating, " 'Don't fuck with me about being put on

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the haircut list, or your sorry ass won't get one.'" R. 26-1 at 26:15-16 (Cordell Dep.) (Page ID #139). Perhaps unsurprisingly, Deputy McKinney remembers his statement being less vulgar. See R. 29 at 12:17-23 (McKinney Dep.) (Page ID #249). Both parties, however, agree that Cordell responded with some version of " 'Fuck you, you sawed-off piece of shit.'" R. 26-1 at 26:17-18 (Cordell Dep.) (Page ID #139); see also R. 29 at 15:7 (McKinney Dep.) (Page ID #252).

This outburst did not sit well with Deputy McKinney. He commanded Cordell to step into the vestibule area so that Deputy McKinney could place Cordell in handcuffs and escort him to a holding cell on the third floor of the jail. R. 29 at 16:2-4 (McKinney Dep.) (Page ID #253). Cordell claimed that he " was in complete compliance" with Deputy McKinney's commands. R. 26-1 at 31:14 (Cordell Dep.) (Page ID #144). In contrast, Deputy McKinney stated that Cordell was " verbally aggressive," " not listening to [Deputy McKinney's] commands," and " getting the rest of the block . . . agitated." R. 29 at 16:5-8, 17:6-7 (McKinney Dep.) (Page ID #253, 254). This behavior, according to Deputy McKinney, forced him to display his Taser and call for backup. Id. at 16:18-24 (Page ID #253). Correctional Officer Brian Marzluf responded first, and Deputy McKinney handed him the Taser and began to handcuff Cordell. Id. at 17:23-18:5 (Page ID #254-55); R. 30 at 11:5-10 (Marzluf Dep.) (Page ID #351). By the time Deputy McKinney finished placing Cordell in handcuffs, Sergeant David Jones and Deputy Sheriff William Coe arrived on the cellblock. R. 32 at 14:26-19 (Jones Dep.) (Page ID #420); R. 33 at 13:13-17 (Coe Dep.) (Page ID #467).

Deputy McKinney then placed Cordell " [i]n an escort position" and began leading him to the third-floor holding cell. R. 29 at 19:25 (McKinney Dep.) (Page ID #256). Cordell described this position as " [w]hen your hands are behind your back and somebody tries to raise them laterally up toward your shoulders, it's a submission[-style hold]." R. 26-1 at 33:15-19 (Cordell Dep.) (Page ID #146). Having put Cordell in this position, Deputy McKinney began to move Cordell " in a brisk fashion." Id. at 33:19-20 (Page ID #146); see also R. 32 at 17:8-9 (Jones Dep.) (Page ID #423) (" Deputy McKinney did move [Cordell] at a brisk pace." ); R. 33 at 17:6-14 (Coe Dep.) (Page ID #471) (acknowledging that Deputy McKinney was walking Cordell quickly). Deputy McKinney, Cordell, and the other officers traveled through the second-floor office and up a flight of stairs without incident. See R. 26-1 at 33:24-34:25 (Cordell Dep.) (Page ID #147); Security Video, Cordell 1 at 17:12:35.44-17:12:40.52.

Near the top of the stairs, Deputy McKinney and Cordell paused. Deputy McKinney " double-locked" Cordell's handcuffs, preventing them from tightening further, and waited for the other officers to reach the landing. R. 26-1 at 35:1, 35:17-24 (Cordell Dep.) (Page ID #148). While the procession was stopped, Nurse Deborah Jordan joined the group. R. 31 at 11:4-7 (Jordan Dep.) (Page ID #380). Then, Deputy McKinney started to march Cordell down the third-floor hallway. R. 26-1 at 37:20-25 (Cordell Dep.) (Page ID #150). This hallway " does a dogleg, goes down 30, 40 feet, turns to the right, [and] immediately turns to the left." Id. at 37:17-19 (Page ID #150). According to Cordell, " [Deputy] McKinney start[ed] pushing [him] faster and faster [down this hallway] and raising [Cordell's] arms behind [Cordell's] back." Id. at 37:21-23 (Page ID #150). Cordell " tried to turn around to see what [McKinney's] intentions [were], why he [was] trying to push [Cordell] so fast." Id. at 41:16-17 (Page ID #154). In response, Cordell claimed,

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Deputy McKinney ran him " head first into the wall" with force sufficient to lacerate Cordell's forehead, cause severe neck and back pain, and leave him " very, very groggy." Id. at 61:17-23 (Page ID #174); id. at 57:22 (Page ID #170).

Deputy McKinney described this sequence of events differently. According to Deputy McKinney, he walked Cordell " at a steady pace . .., a pace that [he knew he] need[ed] to move [Cordell at] to get him where [Deputy McKinney] want[ed] him to go so [the officers] [could] . . . control the situation." R. 29 at 70:14-15, 70:20-22 (McKinney Dep.) (Page ID #307). Deputy McKinney stated that Cordell " start[ed] tensing up" in the hallway and that Deputy McKinney warned Cordell to stop. Id. at 19:15, 19:19-20 (Page ID #256). When Cordell failed to face forward, Deputy McKinney " placed him against the wall within the hallway." Id. at 19:21-22 (Page ID #256). In Deputy McKinney's opinion, he " used the minimum amount of force necessary to control . . . Inmate Cordell." Id. at 27:17-18 (Page ID #274).

The security video captures Deputy McKinney and Cordell entering the empty hallway. Security Video, Cordell 2 at 17:12:55.67. It also shows Cordell turning his head toward Deputy McKinney, who has Cordell's arms secured. Id. at 17:12:57.01-17:12:57.81. On the video, Deputy McKinney responds to Cordell's turn by directing him toward the wall, id. 17:12:57.27-17:12:58.08, but Deputy McKinney and Cordell move outside the camera's view before Cordell makes contact with the wall, id. at 17:12:58.34. The video shows Sgt. Jones, Deputy Coe, Correctional Officer Sortman, Officer Marzluf, and Nurse Jordan surrounding Deputy McKinney and Cordell. Id. at 17:12:58.61-17:13:07.54. Approximately twenty-five seconds after Deputy McKinney and Cordell exit the view of the camera, the group--minus Nurse Jordan--begin moving onward. Id. at 17:13:22.77. After Cordell and the officers appear to leave, the video shows Nurse Jordan pointing at the wall. Id. at 17:13:31.04-17:13:32.38. In her deposition, Nurse Jordan testified that she was pointing at fresh blood on the wall. R. 31 at 13:10-19 (Jordan Dep.) (Page ID #382). Nurse Jordan also stated that she noticed blood droplets on the floor from Cordell's wound. Id. at 16:3-14 (Page ID #385).

After the incident in the third-floor hallway, Deputy McKinney, Cordell, and the other officers continued on to the holding cells without incident. R. 29 at 77:4-82:11 (McKinney Dep.) (Page ID #314-19). Once Deputy McKinney and Cordell were in the holding cell, however, they started " having a heated discussion, [a] debate about why [Cordell] was pulled out and to why [Deputy McKinney] did--[what] [Deputy McKinney's] actions were and [Cordell's] actions were." Id. at 83:19-21 (Page ID #320). Sgt. Jones directed Deputy McKinney to cease arguing with Cordell; Deputy McKinney did not comply, and Sgt. Jones removed Deputy McKinney from the scene. R. 32 at 28:1-16 (Jones Dep.) (Page ID #434); R. 29-3 at 1 (Jones Report) (Page ID #334).

With Deputy McKinney out of the cell, Nurse Jordan started assessing and treating Cordell's wounds. According to Cordell, " everything hurt--[his] head, [his] neck, [his] back, [his] shoulders from being raised up, but all in combination." R. 26-1 at 61:18-20 (Cordell Dep.) (Page ID #174). Nurse Jordan found " a little cut above his eye," and she bandaged it. R. 31 at 14:3-4...

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