Powell v. Fugate

• Decision Date: 08 March 2019
• Docket Number: No. 6:17-CV-122-REW-HAI,6:17-CV-122-REW-HAI
• Citation: 364 F.Supp.3d 709
• Parties: Jeffery POWELL, Plaintiff, v. David FUGATE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

364 F.Supp.3d 709

Jeffery POWELL, Plaintiff,

v.David FUGATE, et al., Defendants.

No. 6:17-CV-122-REW-HAI

United States District Court, E.D. Kentucky, Southern Division. London.

Signed March 8, 2019

David A. Johnson, Justin Wade Noble, Michael Alan Johnson, Law Office of David A. Johnson, Hazard, KY, for Plaintiff.

Jonathan C. Shaw, Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, KY, for Defendants DAVID FUGATE, individually and in his official capacity as KENTUCKY RIVER REGIONAL JAIL DIRECTOR; CARLOW B. YOUNG, individually and in his official capacity as KENTUCKY RIVER REGIONAL JAIL DEPUTY JAILER; and TONY SMITH, individually and in his official capacity as KENTUCKY RIVER REGIONAL JAIL DEPUTY JAILER and KENTUCKY RIVER REGIONAL JAIL AUTHORITY.

Jonathan Tyler Hampton, Lexington, KY For Defendant CARLOW B. YOUNG, individually.

OPINION AND ORDER

Robert E. Wier, United States District Judge

Defendants—former jail staff and the jail itself—move for summary judgment on a former inmate's constitutional and state law claims. DE # 63. After full initial briefing, a reopened discovery window, and supplemental briefing, the motion stands ripe for decision. For the reasons that follow, the Court grants in part and denies in part. There are several material factual disputes. Some of Powell's claims patently fail as a matter of law, but others must go forward so that a jury may sift through the evidence and determine precisely what Powell experienced at the Kentucky River Regional Jail.

I. Facts and Procedural Background

In the early hours of October 13, 2016, Hazard City Police arrested Plaintiff Jeffery Powell on suspicion of driving under the influence (DUI) and transported him to the Kentucky Regional River Jail (KRRJ). Several discordant voices offer accounts of the events that followed—two officers involved in the incidents, the KRRJ's administrator, a fellow inmate, and Powell himself. There is also a short clip of blurry jail footage. The record is disjointed and inconclusive. Powell's memory is only in "bits and pieces"; but, he maintains, "what I do remember, I remember for sure." DE # 60 (Powell Depo.) at 15.¹ Although at times incomplete, Powell's account is not inconsistent with the video.

At approximately 7:30 a.m. on October 13, police transported Powell (age 19) to the jail after a single-vehicle car accident, and KRRJ staff began the booking and intake process. DE # 62 (Smith Depo.) at 9; see DE # 63-2 at 4 (DUI Uniform Citation). Tony Smith was the deputy supervisor on duty when Powell arrived. Smith watched as Deputy Carlow Young took inventory of Powell's property. DE # 62 at 11. As Young counted Powell's cash, Powell declared that some of his money was missing. DE # 60 at 16. Powell testified that he asked about the money in a non-accusatory fashion, but Smith and Young told him to "sit down [and] shut up." Id. at 15–16. Fellow inmate and trustee Robert Fannin, who was out of his cell on laundry duty and observed this conversation from an adjoining hallway, testified that Powell was nonviolent toward the guards, unresisting, and "pissed off but [not] out of control pissed off. He was just asking." DE # 69 (Fannin Depo.) at 7. Fannin added that Young and Smith were taunting Powell and immediately threatening violence toward him. Id. at 9 ("Carlow made the comment to him that if he wouldn't spend his money on whores, he'd probably have it."; "Carlow told him that if he didn't shut his [expletive] mouth that he'd knock his brains out."; "Tony told him if he didn't shut his mouth, he wouldn't have to worry about Carlow whooping him, that he would."). Powell also accuses Young and Smith of mocking him for having an African-American girlfriend and of using racial slurs. DE # 60 at 47.

Powell testified that Smith began to hit him and Young proceeded to gratuitously mace and tase him² when he would not be quiet, after which Powell "kind of blacked out a little bit and [doesn't] really recall[ ]" what happened next. Id. at 16; id. at 17 ("After I was maced, I didn't know what was going on. I couldn't see, I couldn't breathe, I was freaking out."); id. at 51 ("Carlo[w] was the one that was macing and tazing me, because Tony was the one mostly hitting me in my face. It was like they [were] just both on me."); id. at 52 (Powell testifying that he "didn't do anything to be punched" and "didn't do anything to be maced"). Although Powell does not remember the precise circumstances or sequence surrounding this incident,³ it appears that, in the struggle, Young and a fellow deputy—Jordan Noble, who is not a party to this case—got mace in their eyes as well. DE # 62 (Smith Depo.) at 16 ("I didn't really hear nothing until two of my deputies [came] out of there with pepper spray in their eyes."); DE # 61 (Young Depo.) at 32–33 ("[H]e swings around, ‘bout the time I spray it’. He hits my hand and he comes literally two inches from my face and I spray myself."). Fellow inmate Fannin corroborates parts of Powell's version of these events, with a couple of slight variations. He recalls seeing Smith punch Powell (seated at booking) "so hard that [Powell] came off the chair and his head bounced off the floor." DE # 69 (Fannin Depo.) at 23. Fannin further testified that Powell "was hit a couple more times after that, too," before the deputies "drug" Powell away and administered mace out of Fannin's sight. Id. Powell stridently denies being "combative" or behaving violently toward jail staff and insists that he was handcuffed during this encounter.⁴ See DE # 60 (Powell Depo.) at 17, 52–53.

The next thing Powell remembers is waking up "a little bit later" in a restraint chair and using baby wipes to clean the mace out of his eyes.⁵ Id. at 16. Young testified that, in the intervening time, KRRJ staff had placed Powell in a detox cell, but Young became concerned because he "couldn't keep Inmate Powell awake." DE # 61 (Young Depo.) at 35. Young stated that Powell told jail staff that he had taken multiple doses of Xanax, id. at 36–37, and a triage report completed by KRRJ nurse Katherine Ritchie just after the intake incident provides that Powell reported taking three or four sleeping pills.⁶ DE # 70-6; see also DE # 70-7 (October 13, 2016, 9:00 a.m. Narrative Progress Note). As to the presence of physical injuries, the triage report notes only a small bruise and "small red nodule" near Powell's right eye. DE # 70-6. To observe Powell and to keep him awake, Young (with Smith's permission) removed Powell from the detox cell and placed him in a restraint chair near the booking area, leaving him unrestrained. DE # 61 at 35–36. Per the KRRJ "Detox Observation Log" that Young and Noble completed, staff watched Powell in the chair and intermittently awakened him from about 10:30 a.m. until 1:30 p.m. DE # 63-3 at 6.⁷

Young, Smith, and David Fugate—the KRRJ administrator—testified that Powell then began making suicidal remarks. DE # 61 (Young Depo.) at 43; DE # 62 (Smith Depo.) at 23–24; DE # 68 (Fugate Depo.) at 19. This may have been but one stray remark. See, e.g. , DE # 61 at 43 ("Inmate Powell said he was gonna kill himself."). Powell does not deny that he made such statements but testified that he does not remember making any. DE # 60 (Powell Depo.) at 17. Per "protocol," the jailers decided to restrain Powell pending a suicide assessment. See DE # 63-2 (Fugate Aff.) at 2. The brief exchange that followed is memorialized in grainy footage from a nearby KRRJ camera.⁸ See DE # 70-13.⁹ The video opens with a front-facing view of Powell sitting still, unrestrained, in a chair located in a hallway facing the booking area.¹⁰ First Smith and then Young enter the scene. Id. at 0:00:23–0:00:27. Smith attempts to strap Powell's left arm to the chair, while Young attempts to restrain Powell's right arm. Id. at 0:00:37–0:00:50. Powell appears initially cooperative in this process, but he soon begins to struggle and attempt to free himself from the restraints. Id. at 0:00:52–0:00:55. He eventually wrestles his right arm out of the strap (described as faulty) on the chair. Id. at 0:00:56. As Young and Smith again try to secure Powell's left arm, the guards obstruct the view of Powell. Id. at 0:01:000:01:02. At this point, Smith and Young are in front of Powell, so it is impossible to see precisely what happens next. Id. at 0:01:02–0:01:03. The jailers claimed that Powell punched Smith. DE # 62 (Smith Depo.) at 27; DE # 61 (Young Depo.) at 45. Fugate confirmed that he saw Powell punch Smith.¹¹ DE # 68 (Fugate Depo.) at 27.

Next, Smith punches the surrounded and still-seated Powell twice in the face and places him in a 4-5 second chokehold.¹² DE # 70-13 at 0:01:03–0:01:09. Young and a third deputy then appear to pull Smith away. Id. at 0:01:09–0:01:10. Smith retreats from Powell, and Fugate enters and emphatically points towards Smith and then Powell before exiting the camera's view.

Id. at 0:01:10–0:01:23. Finally, Young and the third deputy secure Powell's restraints before leaving Powell, restrained in the chair, alone in the hallway. Id. at 0:01:25–0:02:59. The remaining four minutes of footage show Powell sitting alone, restrained and subdued. The footage is largely consistent with Powell's testimony: "I recall, you know, [Smith] hitting me in my face, you know, repeatedly while I was restrained." DE # 60 (Powell Depo.) at 39; id. at 51 ("Tony was the one mostly hitting me in my face."). Fannin observed the fallout from the incident, testifying: "Later on [Powell] was sitting strapped down in the chair ‘beat to death.’ Now whether these guys did it or whether he beat himself to death, you know, I can't tell you. But I can tell you he was beat to death strapped to a chair later on." DE # 69 (Fannin Depo.) at 47. Fannin continued: "He had a bruise around his eye ... [H]e had a busted lip. He had what looked to be a few scrapes on his face, a cut and he complained about his ribs. That's what I saw and heard." Id. Powell did not see Young or Smith again...