Simpson v. Thompson

• Decision Date: 20 July 2012
• Docket Number: NO. 2011-CA-001726-MR,NO. 2011-CA-001727-MR,2011-CA-001726-MR,2011-CA-001727-MR
• Parties: MELISSA GAIL SIMPSON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES FANCHER APPELLANT v. KEVIN THOMPSON; RONDAL SHIRLEY; SCOTT GORDON; JIMMY SHIVE; AND GREG WILSON APPELLEES
• Court: Kentucky Court of Appeals

MELISSA GAIL SIMPSON, AS PERSONAL REPRESENTATIVEOF THE ESTATE OF CHARLES FANCHER APPELLANT

v. KEVIN THOMPSON; RONDAL SHIRLEY;SCOTT GORDON; JIMMY SHIVE; AND GREG WILSON APPELLEES

NO. 2011-CA-001726-MR

NO. 2011-CA-001727-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: JULY 20, 2012

NOT TO BE PUBLISHED

APPEALS FROM METCALFE CIRCUIT COURT

HONORABLE PHILLIP R. PATTON, JUDGE

ACTION NOS. 08-CI-00055 AND 11-CI-00009

OPINION

AFFIRMING

BEFORE: DIXON, MOORE, AND THOMPSON, JUDGES.

MOORE, JUDGE: Melissa Gail Simpson, as personal representative for the Estate of Charles Fancher (the "Estate") appeals from the Metcalfe Circuit Court's orderof summary judgment dismissing the Estate's negligence claims against the above-captioned appellees. Finding no error, we affirm.

PROCEDURAL AND FACTUAL HISTORY

This matter was originally filed in Metcalfe Circuit Court on March 7, 2008, as a Kentucky negligence action.¹ Later on March 4, 2009, this matter was re-filed in the United States District Court, Western District of Kentucky, as both a Kentucky negligence action and 42 United States Code (U.S.C.) § 1983 civil rights action based upon the same operative facts.² On or about October 27, 2010, the Federal Court summarily dismissed the aforementioned 42 U.S.C. § 1983 claim but declined to exercise jurisdiction over the remaining Kentucky negligence claim. See Simpson v. Thompson, No. 1:09-CV-00031-TBR, 2010 WL 4365573 (W.D. Ky. Oct. 27, 2010) (slip copy). On January 18, 2011, the remaining Kentucky negligence claim was re-filed in Metcalfe Circuit Court.³ This newaction alleged the same operative facts and the same negligence claim as those asserted in the previous action filed in that court; consequently, the two actions were consolidated.

Finally, after the circuit court dismissed the two consolidated actions through a single order of summary judgment, the appellants filed two notices of appeal (one for each of the consolidated actions). Each notice named as the sole appellant "Melissa Gail Simpson, as Personal Representative of the Estate of Charles David Fancher," and, as appellees, "Kevin Thompson, Rondal Shirley, Scott Gordon, Jimmy Shive, and Greg Wilson."⁴

With that said, the parties agree that the Federal Court's order of summary judgment in Simpson, 2010 WL 4365573, accurately summarized the relevant facts of this case:

On March 10, 2007, Charles David Fancher was at a friend's house with his children. DN 29, Ex. 4, 'Dep. Melissa Simpson.' At some point, the eldest child observed Mr. Fancher drinking 'red kool-aid' which the child suspected was alcoholic. Id. The child called her mother, Melissa Gayle Simpson, Mr. Fancher's ex-wife, to pick them up. Id. While picking up the children, Ms. Simpson observed that Mr. Fancher appeared to be under the influence of alcohol. Id. As she drove away, Ms. Simpson's children expressed concern that Mr. Fancher was in a fight with the friend that owned the home they were visiting. Id. As she was driving away, Ms. Simpson saw Deputy Sheriffs Kevin Thompson and Scott Gordon, two of the defendants, at a gas station. Id. Shereported everything to the Deputies, and they agreed to look into the incident. Id.

After arriving at the scene, the Deputies met the owner of the home in which Mr. Fancher was located. The owner advised the Deputies that he did not want Mr. Fancher in his home. The Deputies entered the home and tried to convince Mr. Fancher to leave. When he refused, the Deputies placed Mr. Fancher under arrest. As they were leaving the home, Mr. Fancher allegedly went limp, as he often did during his arrests, and the Deputies were forced to carry him from the home. After being removed from the home, Mr. Fancher allegedly began to struggle and pull away from the officers. At some point, the Deputies handcuffed Mr. Fancher's hands behind his back. Throughout this process, Mr. Fancher was allegedly being verbally abusive towards the Deputies.

Because there is no jail in Metcalfe County, where the arrest took place, Mr. Fancher needed to be transported to a neighboring county. The Deputies called dispatch requesting a transport to the jail. Jailor Jimmy Shive, a third defendant, responded to the call. Upon arriving at the scene, Jailor Shive provided the Deputies with a pair of leg shackles, which they used to shackle Mr. Fancher's legs. The Deputies tried to question Mr. Fancher about the amount of alcohol and drugs he had consumed, but were met with obscenities. To the deputies, this indicated that Mr. Fancher was at his normal level of intoxication. Due to his lengthy arrest record, the Deputies and Jailor Shive were aware that Mr. Fancher would kick at the doors, windows, and safety cage of the transport car while he was en route to jail. Accordingly, two additional pairs of handcuffs were connected to each other and then connected between the shackles on Mr. Fancher's legs and the handcuffs on his wrists. Mr. Fancher was then place[d] on his belly in the rear seat of the transport car. After Deputy Thompson checked Mr. Fancher's breathing, Jailor Shive left with Mr. Fancher.

From the arrest scene to the jail was a 15 to 20 minute drive. Jailor Shive enquired into Mr. Fancher's well being on multiple occasions, and was met with continuedobscenities. Jailor Shive last spoke to Mr. Fancher 3-4 miles out from the jail. Jailor Shive stated that driving the last 3-4 miles probably took 5 to 7 minutes. Upon arriving at the jail, Jailor Shive went to the back seat to remove Mr. Fancher. At that time, Jailor Shive noticed that Mr. Fancher had some discoloration in his face. Jailor Shive called for help and removed the cuffs and shackles. Prison officials started life saving measure[s], and an ambulance was called. Mr. Fancher was pronounced dead later that evening at the hospital.

An autopsy by the medical examiner found a blood alcohol content of .337-.341. The autopsy also revealed .15 milligrams of Diazepam (Valium) per liter of blood. The medical examiner concluded that both of these substances would work together to suppress the central nervous system and other functions. Accordingly, the medical examiner ruled the cause of death to be an overdose of alcohol and Diazepam resulting in heart and lung failure.

Id. at *1-2.

At both the federal and state level, the Estate argued that the manner in which Fancher was restrained was a substantial factor in causing Fancher's death. To that end, the Estate produced the opinion of Dr. Karl Williams, who believed that the method of Fancher's restraint, in conjunction with his intoxication, possible exhaustion from arrest, and what the medical examiner had discovered was Fancher's enlarged heart had resulted in Fancher's "accidental" death from "positional asphyxiation." The Estate also produced an opinion from a private investigator, Eddie Railey, stating Railey's belief that the method used to restrain Fancher was, under the circumstances, a breach of the applicable standard of care.

As noted previously, the Estate's suit began as a Kentucky negligence action, but evolved into a federal suit alleging both a Kentucky negligence claim and a 42 U.S.C. § 1983 based upon excessive force and deliberate indifference to medical needs. When the Federal Court dismissed the Estate's action, it dismissed the § 1983 claims with prejudice on the basis of sovereign immunity (to the extent they were asserted against Metcalfe County and its sheriff's office) and qualified immunity (to the extent they were asserted against Thompson, Shirley, Gordon, and Shive in their individual capacities).

When the Estate re-filed its Kentucky negligence action in Metcalfe Circuit Court, the appellees raised the same defenses of sovereign and qualified immunity, along with a defense of res judicata, and moved for summary judgment on those bases. Thereafter, the circuit court granted summary judgment in favor of the appellees, but its final order of summary judgment essentially stated nothing more than that (i.e., it specified no basis). This appeal followed.

STANDARD OF REVIEW

Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rule(s) of Civil Procedure (CR) 56.03. It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v.Belknap Hardware & Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). "'Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment.") Furthermore, the party opposing summary judgment "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." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted).

On appeal, we must consider the evidence of record in the light most favorable to the non-movant and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving part...