Hale v. Boyle Cnty.

• Decision Date: 18 November 2021
• Docket Number: No. 20-6195,20-6195
• Citation: 18 F.4th 845
• Parties: Dustan HALE, Plaintiff-Appellant, v. BOYLE COUNTY, Kentucky; Derek Robbins ; Thomas Pennington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

18 F.4th 845

Dustan HALE, Plaintiff-Appellant,

v.BOYLE COUNTY, Kentucky; Derek Robbins ; Thomas Pennington, Defendants-Appellees.

No. 20-6195

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2021

Decided and Filed: November 18, 2021

ARGUED: Aaron Bentley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. Lynn Sowards Zellen, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees Boyle County and Derek Robbins. Kyle M. Vaughn, VAUGHN PETITT LEGAL GROUP, PLLC, Pewee Valley, Kentucky, for Appellee Thomas Pennington. ON BRIEF: Aaron Bentley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C., for Appellant. Lynn Sowards Zellen, D. Barry Stilz, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees Boyle County and Derek Robbins. Kyle M. Vaughn, Carol Schureck Petitt, VAUGHN PETITT LEGAL GROUP, PLLC, Pewee Valley, Kentucky, for Appellee Thomas Pennington.

Before: BOGGS, MOORE, and LARSEN, Circuit Judges.

PER CURIAM.

Dustan Hale was detained at the Marion County Detention Center in Kentucky ahead of her trial in neighboring Boyle County. Court Security Officer Thomas Pennington transported her to and from her monthly court hearings in Boyle County. Hale and Pennington repeatedly performed oral sex on each other and had unprotected penetrative vaginal sex in Pennington's van. Before and during the encounters, Pennington showered Hale with perks—she rode cuffless in his van's front seat, he bought her sodas, and he allowed her to smoke. He also offered to intervene in Hale's pending criminal case. Hale gave birth to their child. Invoking the Fourteenth Amendment, Hale filed a 42 U.S.C. § 1983 suit against Pennington, Boyle County, and the county's sheriff Derek Robbins. The district court found that Hale's consenting to sexual contact and intercourse with Pennington negated her constitutional claims, and therefore the district court granted summary judgment to Defendants.

Hale, however, has presented a genuine dispute of material fact about whether the encounters with Pennington were consensual. We thus REVERSE the judgment in part, VACATE in part, and REMAND for further proceedings.

I. BACKGROUND

Dustan Hale was charged with failing a drug test while on pretrial diversion in Boyle County, Kentucky and was detained at the Marion County Detention Center ahead of her trial. R. 55-12 (Release Rep. at 1) (Page ID #389). The Boyle County Sheriff's Office transported Hale between the counties for her monthly court appearances. R. 59 (Hale Resp. to Pennington SJ Mot. at 3) (Page ID #452). In December 2016, Boyle County Deputy Sheriff Jim Gies drove Hale to and from court. R. 59-3 (Hale Dep. at 101) (Page ID #574). Gies treated Hale "as an inmate." Id. at 102 (Page ID #575); R. 59-7 (Hale Aff. at 1) (Page ID #759). Gies took no detours, Hale sat handcuffed in the backseat, the two did not converse about personal matters, Gies did not inquire about her criminal charges, and Gies did not buy Hale anything. R. 59-3 (Hale Dep. at 101–02) (Page ID #574–75); R. 59-7 (Hale Aff. at 1) (Page ID #759).

Boyle County Court Security Officer (CSO) Thomas Pennington transported Hale at least six times between January and April 2017.¹ When Pennington first drove Hale from Marion County to Boyle County, Hale sat handcuffed in the back. R. 59-3 (Hale Dep. at 86, 92) (Page ID #559, 565). On the way back to Marion County, Pennington pointed out that Hale had four felony warrants and asked how she "got [her]self into so much trouble." Id. at 94 (Page ID #567). Hale clarified that her marriage had fallen apart, she had been using cocaine, and she failed a drug test with three months left on her pretrial diversion program. Id. Pennington commented that his marriage was likewise in trouble, and the two spoke for hours. Id. Hale did not "get to see daylight very much" in prison and "[i]t was a sunny day," so she asked Pennington to take the long way back to Marion County. Id. at 95 (Page ID #568). Pennington obliged. Id. Instead of driving straight back to Marion County, he detoured to Taylor County to pick up another detained person. Id.

On the way to Taylor County, Pennington stopped at a gas station to buy soft drinks for himself and Hale. Id. at 92 (Page ID #565). He jumped back in the car, drove to the side of the parking lot, and asked Hale if she would do "anything stupid" if he put her in the front seat. Id. at 92–93 (Page ID #565–66). No, she said. Id. at 93 (Page ID #566). Pennington placed Hale in the front seat, uncuffed her, and said "you're in control now." Id. at 96 (Page ID #569). In Hale's words:

I wasn't quite sure what that meant, but beings [sic] that he was a man and I was a girl, I kind of insinuated maybe he was insinuating something sexual. ... [B]ecause I was unsure of what he meant by you're in control now ... I looked at him and said, I'll suck your dick if you're cool with it. ... I don't know, kind of feel him out, see what that comment meant.

Id. at 96–97 (Page ID #569–70). Pennington smiled, saying nothing. Id. at 97 (Page ID #570). Hale told him to find a back road. Id. Pennington rolled up to a field. Id. The two kissed and Hale performed oral sex on him. Id. at 97–98 (Page ID #570–71). Pennington instructed Hale not to tell anyone. Id. at 102 (Page ID #575). Hale rode cuffless in the front seat until they arrived at Taylor County to pick up the other passenger. Id. at 100 (Page ID #573). Pennington allowed Hale and the other detained person to smoke cigarettes in the van. Id. at 103 (Page ID #576).

A month later, Pennington once again picked up Hale from her detention center. Id. at 104 (Page ID #577). He immediately uncuffed her and asked if she "was ready to go for a ride." Id. Yes, Hale affirmed. Id. Instead of driving straight to Boyle County, Pennington veered to Pulaski County. Id. He imparted that he would talk to the prosecutors in Hale's case to help her avoid ten years in prison. R. 59-7 (Hale Aff. at 2) (Page ID #760). Halting at another gas station, Pennington left Hale uncuffed in the front seat. R. 59-3 (Hale Dep. at 105) (Page ID #578). He purchased Hale a soft drink and let her smoke. Id. at 106 (Page ID #579). Hale held Pennington's hand and kissed his neck. Id. They "mutual[ly]" decided to pull into a field. Id. Hale and Pennington had unprotected vaginal intercourse in the driver's seat. Id. at 107–11 (Page ID #580–84). Pennington ejaculated inside Hale. Id. at 111 (Page ID #584). Hale knew that she could be impregnated from unprotected sex and had not asked Pennington to use a condom, but she "wasn't aware" that Pennington was going to ejaculate inside of her. Id. at 111–13 (Page ID #584–86). Pennington later pulled down the visor in his car, and a condom fell out onto his lap. Id. at 112 (Page ID #585). Hale told another detained person at Marion County that she and Pennington had sex; their conversation was overheard by a third detained person who was feigning sleep. Id. at 116–18 (Page ID #589–91).

When Pennington picked Hale up the third time, he "wasn't very friendly" and was "pissed off." Id. at 118 (Page ID #591). He left Hale handcuffed in the back of the van and said nothing. Id. Speeding along a back road, he confronted Hale: "Why in the hell did [you] tell[?]" Id. Hale, still handcuffed, was scared. Id. at 119 (Page ID #592). She explained that someone must have overheard her conversation with her friend. Id. Pennington asked Hale to take a pregnancy test, which he had in the glove box, and she assented. Id. at 120 (Page ID #593). The test came back negative. Id. Afterwards, Pennington and Hale kissed, performed oral sex on each other, and had unprotected vaginal intercourse in the driver's seat. Id. at 120–22 (Page ID #593–95). Hale promised that she would not tell anyone else about their encounters and would deny everything if asked. Id. at 120 (Page ID #593). Pennington drove Hale to court at least three more times in March and April. Id. at 121–23 (Page ID #594–96). On each trip, they had unprotected vaginal intercourse. Id.

At the time, Hale thought that her relationship with Pennington was "more than sex," even though she knew that Pennington was married. Id. at 115 (Page ID #588). Pennington "expressed concern for [Hale] and interest in [her] ... so [she] was very comfortable with him and [ ] trusted him." Id. To Hale, Pennington was her boyfriend. Id. And she wanted Pennington to transport her because he let her have more freedom than other officers did. Id. at 104–05 (Page ID #577–78). Pennington never forced her to do anything, she relished his company, and she enjoyed their sexual contact. Id. at 115 (Page ID #588). Pennington also gave Hale his phone number, which allowed her to call him several times. Id. at 123–24 (Page ID #596–97).

Based on a confidential informant's tip, Boyle County Sheriff Derek Robbins learned on April 5, 2017 that Hale and Pennington might be having sex. R. 55-18 (4/5/17 Mem.) (Page ID #432); R. 59-5 (Robbins Dep. at 66) (Page ID #680). Robbins reviewed security camera footage and the "body receipt" that Pennington had filed for his trip on April 3, 2017. R. 59-5 (Robbins Dep. at 76–80) (Page ID #682–83). The sheriff discovered that Pennington picked up Hale at 2:45 AM on April 3 and arrived at the Casey County Detention Center to get another detainee at 4:13 AM. Id. at 76–78 (Page ID #682–83). Robbins determined that the drive should have taken half that time. Id. at 78 (Page ID #683). The sheriff summoned Pennington to be interviewed, suspended Pennington without pay, and alerted the police. R. 55-19 (4/6/17 Not.) (Page ID #433); R. 55-20 (4/7/17 Letter) (Page ID #434); R. 59-5 (Robbins Dep. at 87–88) (Page ID #685). Pennington resigned. R. 55-21 (4/12/17 Resignation) (Page ID #435).

In November 2017, Hale gave birth to Pennington's daughter. R. 59-1 (Discharge Rep. at 1) (Page ID #472); R. 59-4 (DNA Test at 1) (Page ID #661). Pennington pleaded guilty to one count of bribery...