Westmoreland v. Butler Cnty.

• Decision Date: 24 March 2022
• Docket Number: No. 21-5168,21-5168
• Citation: 29 F.4th 721
• Parties: Bretton WESTMORELAND, Plaintiff-Appellant, v. BUTLER COUNTY, KENTUCKY; Rocky W. Tyree, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

29 F.4th 721

Bretton WESTMORELAND, Plaintiff-Appellant,

v.BUTLER COUNTY, KENTUCKY; Rocky W. Tyree, individually, Defendants-Appellees.

No. 21-5168

United States Court of Appeals, Sixth Circuit.

Argued: October 28, 2021

Decided and Filed: March 24, 2022

ARGUED: Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. Charles E. English, Jr., ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellees. ON BRIEF: Gregory A. Belzley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. Charles E. English, Jr., John A. Sowell, ENGLISH, LUCAS, PRIEST & OWSLEY, LLP, Bowling Green, Kentucky, for Appellees. Megha Ram, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., David M. Shapiro, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amicus Curiae.

Before: CLAY, GIBBONS, and BUSH, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which CLAY, J., joined. BUSH, J. (pp. 731–45), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge.

Bretton Westmoreland was arrested and detained at the Butler County Jail, where he was attacked by another detainee for being a "snitch." Westmoreland sued the jail and Rocky Tyree, an employee, for failure to protect under 42 U.S.C. § 1983. The district court granted summary judgment to the Butler County Jail and Tyree, holding that because Westmoreland did not suffer a constitutional violation, Tyree was entitled to qualified immunity and the jail could not be held liable. Westmoreland appeals, arguing the district court used the incorrect test to evaluate his claim. Because our court recently determined that Kingsley v. Hendrickson , 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), requires modification of the subjective prong of the deliberate indifference test for pretrial detainees, we vacate the district court's grant of summary judgment and remand Westmoreland's claims for proceedings consistent with Brawner v. Scott County, Tennessee , 14 F.4th 585 (6th Cir. 2021).

I

On May 27, 2018, Defendant Butler County Jail ("BCJ") booked Plaintiff Bretton Westmoreland on an active bench warrant for failure to appear. During the booking process, Westmoreland signed a document acknowledging he received and understood the rules of BCJ and his rights as an inmate—including the process to request separation from other inmates if he felt threatened. That same day, Westmoreland requested to be separated from fellow inmate Jerry St. Clair. Westmoreland indicated that he knew St. Clair was currently incarcerated at BCJ and that St. Clair believed he was a government informant. BCJ documented this request for separation, and Westmoreland was assigned to a multi-occupancy general population dormitory with six cellmates that did not share common area with St. Clair.

One week later, around 6:21 P.M. on June 3, 2018, Westmoreland called his mother, Tanya Arnold Sublett, and expressed his concerns that St. Clair was telling other inmates Westmoreland had "told on him." DE 26-2, Defs.’ Mot. Summ. J., Page ID 196. The next day, St. Clair was permitted to mop floors outside of Westmoreland's cell. Around 12:22 P.M., Westmoreland called Sublett again and told her that St. Clair was near Westmoreland's dormitory and was telling Westmoreland's cellmates that he was a "rat." Id . at 196–97. Westmoreland claimed his cellmates became "rowdied up" after hearing this, and one inmate in particular—Ricky Mullikan—became mad. DE 29, Pl.’s Resp. Defs.’ Mot. Summ. J., Page ID 243.

After Westmoreland conveyed this information to his mother, Sublett called BCJ and spoke with Tara McMillin, the jail's Class D Coordinator. McMillin worked in the administrative office preparing home and rehab placements for inmates. McMillin testified that Sublett informed her something was going on between Westmoreland and St. Clair, and she was concerned about Westmoreland's well-being in his cell. McMillin checked Westmoreland's records and confirmed that he and St. Clair were housed in separate cells. McMillin completed an incident report about the phone call, wrote down Sublett's phone number, and gave a note to her supervisor, Tyree. In the incident report, McMillin wrote: "I spoke with Jailer Rocky Tyree and explained the issue. I gave him a sticky note with [Sublett's] phone number and asked him to call her." DE 29, Pl.’s Resp. Defs.’ Mot. Summ. J., Page ID 245.

Tyree claimed he had spoken to Westmoreland approximately fifteen minutes before McMillin informed him of Sublett's phone call. He stated their conversation lasted for five minutes and occurred in the bullpen, during which he asked Westmoreland directly if he wanted to be moved out of his cell. Tyree claims that Westmoreland replied "No, I'm fine." DE 26-2, Defs.’ Mot. Summ. J., Page ID 198. Westmoreland, however, denied having any conversation with Tyree about being moved from the cell. Tyree stated that because he had spoken with Westmoreland, who did not want to be moved, he felt he did not need to follow up on Sublett's phone call. Westmoreland called Sublett again in the afternoon of June 4, and she told him that she had called the jail and Tyree would "take care of everything." DE 29, Pl.’s Resp. Defs.’ Mot. Summ. J., Page ID 247.

Around 6:00 P.M. on June 4, 2018, Westmoreland asked Deputy Jesse Kidd if he could be moved. Kidd's incident report indicates that Westmoreland made the request because "he couldn't stand to be in the cell with the other inmates and that they were getting on his nerves." DE 26-2, Defs.’ Mot. Summ. J., Page ID 199. Kidd told Westmoreland that the jail did not move inmates just because they dislike their cellmates and prepared a report documenting the conversation. Westmoreland stated that when he spoke to Kidd, he asked to be moved because he "felt like [his cellmates] were going to do something to [him]." DE 29, Pl.’s Resp. Defs.’ Mot. Summ. J., Page ID 247.

Westmoreland testified that things escalated after dinner, when other inmates were egging on Mullikan and turning up music. Between 6:00 P.M. and midnight, BCJ deputies visited Westmoreland's dormitory on seven occasions to monitor the inmates. Sometime after midnight, the other inmates shut off the lights, turned up the television, and closed the door. Westmoreland sat on a cooler to see everything, and when he turned to speak with another inmate, Mullikan attacked him from behind. Westmoreland testified that he stood up to defend himself, but two other inmates pushed him away so that Mullikan could strike him again. Mullikan struck Westmoreland with his fist and knocked Westmoreland unconscious. Westmoreland recalled waking up when a guard came into the cell, and the other inmates informed the guard that Westmoreland had slipped in the shower. Westmoreland was reluctant to disclose he had been attacked and initially told Tyree he had fallen in the shower before acknowledging that he had been assaulted by another inmate.

A guard took Westmoreland to the jail's nurse, who examined him, cleaned out his mouth, and stated that Tyree needed to be informed. After Tyree arrived, the nurse and Tyree took Westmoreland to the Ohio County Hospital emergency room, where the hospital determined his jaw was broken

and referred him to an oral surgeon. Westmoreland was returned to BCJ and placed in a three-man cell. Westmoreland had two surgeries for his injury: braces and a plate were installed, and his jaw was wired shut for seven to eight months while he subsisted on a liquid diet. He still experiences numbness from the midline of his chin to the mid-right side of his jaw, and his face pops and causes pain while eating.

Westmoreland filed suit against Tyree, McMillin, Kelli Fugate (the Chief Administrative Deputy at BCJ), and BCJ (collectively "Defendants") asserting claims for failure to protect, in violation of the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983 ; negligence and gross negligence under Kentucky law; and a violation of Ky. Rev. Stat. § 441.045(3) for allegedly releasing him to avoid paying his medical bills. Following discovery, Defendants moved for summary judgment. Westmoreland voluntarily dismissed his claims against McMillin and Fugate.

The district court applied a two-part deliberate indifference test to determine whether Tyree was entitled to qualified immunity and granted Defendants’ motion for summary judgment. The court held that under the objective component of the deliberate indifference failure-to-protect claim, Westmoreland established he faced a substantial risk of harm because he had been identified as a snitch, and he subsequently suffered physical harm during an attack. However, under the subjective component, the court held Westmoreland failed to show Tyree knew of the substantial risk of harm. Because Tyree was not deliberately indifferent, the court held Westmoreland did not suffer a constitutional violation and Tyree was entitled to qualified immunity. The district court also granted summary judgment to BCJ, holding that a municipality cannot be liable absent an underlying constitutional violation. Finally, the court dismissed Westmoreland's state law claims without prejudice, declining to exercise its discretionary pendent jurisdiction over state law claims filed in connection with and arising out of the same facts as his § 1983 claim.

II

The district court's grant of summary judgment is reviewed de novo. Equitable Life Assur. Soc'y of the United States v. Poe , 143 F.3d 1013, 1015 (6th Cir. 1998). We will affirm the district court if the record "shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[W]e view the factual evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in that party's favor." Burwell v. City of Lansing, Mich. , 7 F.4th 456, 462 (6th Cir. 2021) (citation omitted).

III

Qualified immunity shields...