Opinion
No. 1:02-cv-054
January 26, 2004
MEMORANDUM AND ORDER
Plaintiff William O. Kelsay, Jr. ("Kelsay") contends that while he was in pretrial detention in the Hamilton County Jail in Chattanooga, Tennessee, he was assaulted and beaten in his jail cell by corrections officers employed by the Hamilton County Sheriff's Department. Kelsay asserts federal civil rights claims under 42 U.S.C. § 1983 and 1985(3), in combination with a tort claim under Tennessee common law for assault and battery. He seeks to recover compensatory and punitive damages.
Defendants move for summary judgment pursuant to FED. R. CIV. P. 56. [Court File No. 10]. After reviewing the record, the Court concludes that the summary judgment motion will be GRANTED IN PART and DENIED IN PART.
The motion will be GRANTED to the extent that all federal and state claims against defendant John Anthony Wright are DISMISSED WITH PREJUDICE, and the claim brought against all defendants under 42 U.S.C. § 1985(3) is DISMISSED WITH PREJUDICE.
The remainder of the defendants' summary judgment motion must be DENIED because there are genuine issues of material fact in dispute which will have to determined at trial. Kelsay may proceed with his claims against defendants Gene Coppinger and Hamilton County under 42 U.S.C. § 1983 and under Tennessee common law for assault and battery. Kelsay is suing defendant John Cupp solely in his official capacity as the Sheriff of Hamilton County which is the equivalent of bringing suit against Hamilton County. There are no claims against John Cupp in his personal capacity.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court views the facts in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-moving party, Kelsay. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Defendants bear the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, Kelsay must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which an objective, rational jury could reasonably find for Kelsay. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to Kelsay, it may grant summary judgment if the record taken as a whole could not lead an objective, rational jury to find for Kelsay. Matsushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003).
II. Facts
The Court has reviewed the record in the light most favorable to Kelsay and makes the following findings of fact. Kelsay is a citizen and resident of Hamilton County, Tennessee. Defendants Gene Coppinger ["Coppinger"] and John Anthony Wright ["Wright"] are employed as law enforcement officers by the Hamilton County Sheriff's Department. Defendant John Cupp ("Cupp") is the elected Sheriff of Hamilton County.
On August 14, 1998, Kelsay was arrested on a state charge of aggravated sexual exploitation of a minor. He was held in pretrial detention in the Hamilton County Jail until July 23, 1999. It is alleged that Kelsay suffers from a seizure disorder and he has suffered many seizures. Prior to January 1999, Kelsay was moved to an observation cell on the jail's fourth floor due to his health problems.
In December 1998, Kelsay received a threatening note placed under the door to his jail cell. The contents of the threatening note have not been revealed to the Court at this juncture. Kelsay believes the threatening note was written and delivered to him either by jail officers or with the jail officers' knowledge. Kelsay reported the threatening note to persons within the jail including counselor Kevin Matthews.
In early April 1999, Kelsay was relocated to a private segregation/observation cell on the fourth floor of the jail. Kelsay contends that on or about April 12, 1999, several corrections officers entered his jail cell sometime in the evening. According to Kelsay, the officers said they were going to teach Kelsay to "keep his mouth shut." The officers then beat and kicked Kelsay inflicting severe bodily injuries which required hospitalization and surgery. The cell was readily visible to any officers charged with the responsibility for maintaining a watch over the floor. No officer took action to come to Kelsay's assistance and prevent him from being beaten.
In his affidavit [Court File No. 17, Exhibit A], Kelsay states that although he is not certain of the exact identity of the officers involved, he is certain that the officers who beat him were working in the jail at the time of the assault on April 12, 1999. Kelsay further states: "To the best of my knowledge, information and belief, the officers who were involved in beating me were Lt. Coppenger (sic) . . . and Officer Wright. The only officer known to me with the last name of Wright who was employed at the Hamilton County Jail in 1999 is Officer Anthony Wright."
Kelsay says he was too frightened to report the beating to jail officials. A few days after the beating, Kelsay's mother visited him at the jail. When his mother saw Kelsay was seriously injured, she requested that Kelsay be given medical treatment but none was provided at that time. Kelsay was not transported to the hospital for medical treatment until April 17, 1999. Kelsay denies that his injuries were self-inflicted or the result of his having a seizure.
Kelsay's identification of defendant Wright as being one of the officers who assaulted and beat him on April 12, 1999, is exceedingly weak. The identification of Wright is little more than guesswork. As far as the Court can determine from the record, Kelsay cannot positively identify Wright by sight as one of the officers involved in the alleged beating. The only way Kelsay seeks to identify Wright is based on Wright's last name and Kelsay's belief that Wright was employed as a corrections officer at the jail in 1999.
Kelsay's identification of Wright as being one of the officers who participated in the beating incident is undercut by Wright's affidavit. In his sworn affidavit [Court File No. 12], Wright states that he is employed by the Hamilton County Sheriff's Department and he began working as a corrections officer on December 6, 1999. Wright denies being employed and present at the Hamilton County Jail during the month of April 1999. Wright denies participating in an assault on Kelsay. Wright says he does not know Kelsay.
Kelsay has not presented any probative evidence to refute Wright's affidavit. No proof is offered by Kelsay showing that Wright was employed by the Hamilton County Sheriff's Department to work at the jail in April 1999. Kelsay does not directly dispute that Wright began working at the jail on December 6, 1999, approximately eight months after the alleged beating of Kelsay occurred. Based on the proof in the record, the Court finds that an objective, rational jury could not find that defendant John Anthony Wright was present inside the jail in April 1999 and assaulted Kelsay. Kelsay has not shown there is a genuine issue of material fact in dispute on this particular point. A mere scintilla of evidence is not enough to create a genuine issue of material fact and preclude summary judgment in favor of Wright under Rule 56. Wright should not be required to defend himself at trial based on Kelsay's affidavit.
The Court reaches a different result regarding Coppinger who was employed at the jail in April 1999. There is a genuine issue of material fact in dispute whether Coppinger participated in the alleged beating of Kelsay on the evening of April 12, 1999. The Court has reviewed Coppinger's affidavit. [Court File No. 11]. Coppinger is employed by the Hamilton County Sheriff's Department with the rank of Lieutenant. He is the Security Supervisor for the Hamilton County Jail. Coppinger states that the security office entry log on April 12, 1999, shows he closed out operations at the security office at 2:50 p.m. Coppinger says he left the jail at 2:50 p.m. Coppinger denies that he was present at the jail on the evening of April 12, 1999, and he denies being involved in any assault on Kelsay. Coppinger places great emphasis on the security office entry log book.
The Court concludes, however, that the security office entry log, in and of itself, does not absolutely prove that Coppinger was not present inside the jail on the evening of April 12, 1999. The log is not dispositive. It is entirely possible that Coppinger could have entered the jail sometime on the evening of April 12, 1999, without signing the entry log and participated in the alleged beating of Kelsay. It is plausible to believe that if Coppinger went to the jail with the plan or intent to assault Kelsay, then Coppinger would not sign the entry log because to do so would create a record showing that he was present in the jail during the assault. Kelsay alleges that he was beaten by Coppinger and Coppinger denies it. In reviewing the summary judgment motion, the Court cannot determine the credibility of the parties. It will be up to the jury at trial to determine the credibility of Kelsay, Coppinger, and their respective witnesses.
III. Analysis A. Claims Against Defendant Wright
All of Kelsay's federal and state claims against Wright will be dismissed with prejudice. There is no probative proof that Wright was employed at the Hamilton County Jail in April 1999 when the beating of Kelsay is alleged to have occurred. There is no probative evidence that Wright was present at, or had access to, the jail on April 12, 1999, or any other date in April 1999. An objective, rational jury could not find Wright liable on any of Kelsay's claims based on the scant proof submitted in Kelsay's affidavit.
With regard to the claim brought under 42 U.S.C. § 1985, Kelsay does not specify the particular subsection of § 1985 that he contends is applicable to his case. The Court infers that Kelsay seeks to rely on § 1985(3). The § 1985(3) claim must be dismissed as to all defendants. Kelsay does not allege, and offers no proof showing, that he has been subjected to class-based invidious discrimination. In his response to the defendants' summary judgment motion, Kelsay does not bother to discuss his § 1985 claim. [Court File No. 22]. The Court deems Kelsay to have waived opposition to the dismissal of his § 1985 claim. E.D.TN. LR 7.2.
There is good reason for Kelsay to abandon this particular claim. To prevail under 42 U.S.C. § 1985(3), Kelsay is required to plead and be able to prove four essential elements: (1) a conspiracy between at least two persons; (2) the purpose or object of the conspiracy was to deprive Kelsay of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an overt act committed by at least one of the conspirators in furtherance of the conspiracy; and (4) the defendant's conduct caused Kelsay to suffer personal injury, property damage, or a deprivation of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971); Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003); Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996); Maki v. Laako, 88 F.3d 361, 367 (6th Cir. 1996); Johnson v. Hills Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994); Haverstick Enterprises v. Financial Federal Credit, 32 F.3d 989, 993 (6th Cir. 1994).
As the Court reads and understands the complaint, Kelsay contends that Wright, Coppinger, and one or more other corrections officers employed by the Hamilton County Sheriff's Department at the jail were members of a conspiracy to assault and beat Kelsay. There is no probative proof that Wright was a member of the alleged conspiracy. The proof shows that at the time when Kelsay alleges he was beaten on or about April 12, 1999, Wright was not employed by the Hamilton County Sheriff's Department and Wright did not work at the jail. No rational jury could reasonably find that Wright was a member of the conspiracy.
Viewing the record in the light most favorable to Kelsay, it is possible that Coppinger could have conspired with other unknown or unidentified persons to assault Kelsay. The Court will not dismiss the § 1985(3) claim on the ground that Kelsay is unable to prove the existence of a conspiracy between Coppinger and at least one other person. Kelsay states that he was beaten by several officers and he is able to identify Coppinger as one of his attackers. Instead, the Court must dismiss the § 1985(3) claim for a different reason.
Although § 1985(3) applies to private conspiracies, it does not apply to all tortious interference with the rights of others. Griffin, 403 U.S. at 101. To make out a viable claim under § 1985(3), Kelsay is required to prove there was some racial, or otherwise class-based, invidiously discriminatory animus behind the conspirators' action. Bray v. Alexandria Clinic, 506 U.S. 263, 267-68 (1993); United States v. Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825 (1983); Griffin, 403 U.S. at 101; Vakilian, 335 F.3d at 519; Bartell v. Lohiser, 215 F.3d 550, 559-60 (6th Cir. 2000); Collyer, 98 F.3d at 233; Maki, 88 F.3d at 367; Haverstick, 32 F.3d at 994; Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992); Rice v. Ohio Dept. of Transp., 887 F.2d 716, 722 (6th Cir. 1989); Averitt v. Cloon, 796 F.2d 195, 198 (6th Cir. 1986). Kelsay cannot prevail on a cause of action under 42 U.S.C. § 1985(3) unless he can prove the conspiracy was motivated by an intent to invidiously discriminate against Kelsay because he is a member of a protected class. Studen v. Beebe, 588 F.2d 560, 564(6th Cir. 1978); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 679 (6th Cir. 1976); Cameron v. Brock, 473 F.2d 608, 610(6th Cir. 1973); Miller v. City of Columbus, 920 F. Supp. 807, 821-22 (S.D. Ohio).
The distinction between classes of persons protected pursuant to § 1985(3) and those classes which are unprotected is rooted in traditional equal protection analysis under the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution. The classes of persons protected by § 1985(3) are the discrete and insular minorities that receive heightened constitutional protection under the Fourteenth Amendment's Equal Protection Clause because of their inherently personal characteristics. The class-based, invidiously discriminatory animus required by § 1985(3) must be based on race, ethnic origin, sex, religion, or political loyalty. Haverstick, 32 F.3d at 994; Rice, 887 F.2d at 722; Averitt, 796 F.2d at 198; National Communication v. Michigan Public Service, 789 F.2d 370, 374 (6th Cir. 1986); Browder v. Tipton, 630 F.2d 1149-50 (6th Cir. 1980); Clonlara, Inc. v. Runkel, 722 F. Supp. 1442, 1461 (E.D. Mich. 1989); see also Bartell, 215 F.3d at 560.
Kelsay does not contend that he is a member of any of these classes of persons entitled to protection under the Equal Protect Clause and § 1985(3). Kelsay does not allege, and offers no proof showing, that the defendants were motivated to conspire against him in violation of § 1985(3) based on his race, ethnic origin, sex, religion, or political loyalty. At most, Kelsay contends that the defendants conspired to assault him because (1) Kelsay had been arrested and was being detained in jail on a criminal charge of aggravated sexual exploitation of a minor; and (2) Kelsay had complained to jail authorities that he had received a threatening note shoved under the door of his jail cell. This is insufficient to plead and prove a claim under § 1985(3).
Prisoners and persons in jail in pretrial detention is not a class of persons entitled to constitutional protection under the suspect classification analysis applicable to the Equal Protection Clause of the Fourteenth Amendment. Myles v. Michigan Dept. of Corrections, 198 F.3d 246 (table, 6th Cir. Dec. 11, 1992); Brown v. Campbell, 173 F.3d 854 (table, 6th Cir. March 17, 1999); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997); Newell, 981 F.2d at 886-87; Stuck v. Aikens, 760 F. Supp. 740, 744 (N.D. Ind. 1991); Lowe v. Carter, 554 F. Supp. 831, 837 (E.D. Mich. 1982); Nakao v. Rushen, 542 F. Supp. 856 (N.D. Cal. 1982). Accordingly, Kelsay's § 1985(3) claim will be DISMISSED WITH PREJUDICE as to all defendants.
C. 42 U.S.C. § 1983 1. In What Capacity Are Coppinger and Cupp Being Sued?
Before analyzing the claim brought under 42 U.S.C. § 1983, it is necessary to clarify whether Coppinger and Cupp are being sued personally in their individual capacities, or in their official capacities, or both. A § 1983 claim may be maintained against a defendant in his official capacity, or in his personal (individual) capacity, or in both capacities. A personal-capacity suit seeks to impose personal liability upon a government official, employee, or agent for actions taken under color of state law. Official-capacity suits are merely another way of pleading an action against the governmental entity of which the defendant is an official, employee, or agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir. 1992); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989).
Kelsay is suing Coppinger under 42 U.S.C. § 1983 both in his official and individual capacities. Count I in the complaint [Court File No. 1, p. 4] is captioned "VIOLATION OF CONSTITUTIONAL AND STATUTORY RIGHTS INDIVIDUAL DEFENDANTS." The term "individual defendants" is a reference to Coppinger.
However, Count I of the complaint does not plead a § 1983 cause of action against Sheriff Cupp personally. Cupp is not explicitly mentioned in Count I. It is clear from reading the complaint as a whole that Kelsay is suing Cupp solely in his official capacity as Sheriff of Hamilton County. The Court reaches this conclusion based on Count III of the complaint which is captioned "LIABILITY OF HAMILTON COUNTY AND SHERIFF CUPP." The § 1983 claim against Cupp is governed by Count III of the complaint rather than Count I. There is nothing in the complaint showing that Cupp is being sued individually in his personal capacity under § 1983. There is no allegation that Cupp personally participated in, authorized, or condoned the beating of Kelsay.
To properly plead a § 1983 claim against Cupp personally, Kelsay is required to give fair notice to Cupp that there is the potential Cupp might be individually liable for payment of monetary damages. Shepherd v. Wellman, 313 F.3d 963, 967-69 (6th Cir. 2002); Lovelace v. O'Hara, 985 F.2d 847, 850 (6th Cir. 1993); Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991); Wells v. Brown, 891 F.2d 591 (6th Cir. 1989). Where no explicit statement or allegation of personal liability appears in the complaint, the Court applies a "course of the proceedings" test to determine whether Cupp has received fair notice of the plaintiff's intent to hold Cupp personally liable. Shepherd, 313 F.3d at 967-68; Moore v. City of Harriman, 272 F.3d 769, 772-73 (6th Cir. 2001).
The Court finds that the complaint and the course of the proceedings do not give fair notice to Cupp that Kelsay intends to hold Cupp personally liable in damages on the § 1983 claim. The ad damnum portion of Kelsay's complaint makes a general demand for compensatory and punitive damages. A demand for damages is one factor that might place a defendant on notice he is being sued in his personal capacity. Shepherd, 313 F.3d at 969; Moore, 111 F.3d at 772-73 and n. 1. However, Kelsay's demand for damages, standing alone, is insufficient to place Cupp on fair notice that he is being sued personally because the complaint as a whole strongly suggests there is only an official-capacity claim being pursued against Cupp under § 1983. Shepherd, 313 F.3d at 969.
By bringing suit against Coppinger and Cupp in their official capacities, Kelsay is in effect suing the governmental entity that employs them, namely Hamilton County. Hafer v. Melo, 502 U.S. 21, 23-25 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 68 (1989); Graham, 473 U.S. at 165; Fox v. Van Oosterum, 176 F.3d 342, 347-48 (6th Cir. 1999); Pusey v. City of Youngstown, 11 F.3d 652, 657 (6th Cir. 1993); Leach, 891 F.2d at 1245-46. In sum, Kelsay's § 1983 cause of action is being brought only against Coppinger and Hamilton County. Because the complaint directly names Hamilton County as a defendant, it is superfluous and redundant to also name John Cupp as a defendant in his official capacity as the Sheriff of Hamilton County.
2. Source of Kelsay's Rights as Pretrial Detainee Under United States Constitution
To prevail on a claim under 42 U.S.C. § 1983, Kelsay is required to plead and prove two essential elements: (1) the defendants deprived Kelsay of a right, privilege, or immunity secured to him by the United States Constitution, federal statute, or other federal law; and (2) the defendants caused the deprivation while acting under color of state law. Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000).
It appears there is no dispute that Coppinger and Hamilton County were acting under color of state law. It is necessary to clarify the precise source of Kelsay's constitutional rights based on his status as a pretrial detainee. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002), cert. denied, 537 U.S. 1104 (2003). In his complaint, Kelsay identifies three possible sources. Kelsay contends that the defendants deprived him of the following rights guaranteed by the United States Constitution: (1) the right to be free from excessive force under the Fourth and Fourteenth Amendments; (2) the right not to be deprived of life, liberty, or property without due process of law under the Due Process Clause of the Fourteenth Amendment; and (3) the right to be free from cruel and unusual punishment under the Eighth Amendment.
As the Sixth Circuit explains in Phelps, the question of which specific constitutional amendment supplies Kelsay's rights is not merely an academic exercise. The standards of liability vary significantly according to which amendment applies. Phelps, 286 F.3d at 299; Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (A substantially higher hurdle must be surpassed to make a showing of liability for police use of excessive force under the Fourteenth Amendment than under the Fourth Amendment's "objective reasonableness" test). The determination of which constitutional amendments apply depends upon Kelsay's status as a pretrial detainee at the time the alleged beating incident occurred in April 1999. Phelps, 286 F.3d at 299.
Because Kelsay was a pretrial detainee in custody at the jail, the Fourth Amendment is not applicable. Moreover, the Eighth Amendment applies to prisoners who have been convicted, and is not directly applicable to Kelsay's situation. Weaver v. Shadoan, 340 F.3d 398, 410 (6th Cir. 2003); Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001); Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).
If a plaintiff is not in a situation where his rights are directly governed by the particular provisions of the Fourth or Eighth Amendments, the more generally applicable Due Process Clause of the Fourteenth Amendment provides the individual with some measure of protection against physical abuse by law enforcement officials. Phelps, 286 F.3d at 300; Darrah, 255 F.3d at 305-06. The source of Kelsay's constitutional right as a pretrial detainee is the Due Process Clause of the Fourteenth Amendment. Pretrial detainees, who have not been convicted of any crimes, retain under the Due Process Clause at least the same constitutional rights enjoyed by convicted prisoners under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 545 (1979); Watkins, 273 F.3d at 685-86; Thompson v. County of Medina, Ohio, 29 F.3d 238, 242 (6th Cir. 1994); Barber v. City of Salem, 953 F.2d 232, 235 (6th Cir. 1992); Danese v. Asman, 875 F.2d 1239, 1242-43 (6th Cir. 1989); Roberts, 773 F.2d at 723; see also City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 244 (1983) (The due process rights of a pretrial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner); Phelps, 286 F.3d at 300.
The Eighth Amendment right of convicted prisoners to be free from cruel and unusual punishment is analogized to the constitutional rights secured to pretrial detainees under the Due Process Clause of the Fourteenth Amendment. This is done to avoid the anomaly of extending greater constitutional rights and protection to convicted prisoners than to pretrial detainees in jail awaiting trial. Horn By Parks v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994); Barber, 953 F.2d at 235; Roberts, 773 F.2d at 723; see also Fisher v. Cocke County, 97 F.3d 1451 (Table, text in 1996 WL 520793, **3 (6th Cir. Sept. 12, 1996)). In other words, the Eighth Amendment's protection against cruel and unusual punishment extends to Kelsay in his status as a pretrial detainee through the Due Process Clause of the Fourteenth Amendment. Turner v. Cupp. 238 F.3d 424 (Table, text in 2000 WL 1141423, **2 (6th Cir. Aug. 4, 2000)); Polk v. Parnell, 132 F.3d 33 (Table, text in 1997 WL 778511) (6th Cir. Dec. 8, 1997)); Burciaga v. County of Lenawee 123 F. Supp.2d 1076, 1078 (E.D. Mich. 2000).
The Court will apply Eighth Amendment cruel and unusual punishment analysis to Kelsay's § 1983 claim. To establish a violation of substantive due process applying Eighth Amendment standards, Kelsay is required to prove that the defendants' offending conduct involved the unnecessary and wanton infliction of pain. Whitley v. Albers, 475 U.S. 312, 327 (1986). A viable Eighth Amendment claim has an objective component and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component requires that the prisoner's pain be sufficiently serious, and the subjective component requires that the defendants acted with the deliberate indifference to Kelsay's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8-9 (1992); Wilson v. Seiter, 501 U.S. 294, 302-03 (1991); Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993). An unprovoked assault on a prisoner in jail by corrections officers involving the unnecessary and wanton infliction of pain can constitute cruel and unusual punishment in violation of the Eighth Amendment. Pelfrey v. Chambers, 43 F.3d 1034 (6th Cir. 1995).
3. Section 1983 Claim Against Coppinger
The Court concludes that Kelsay has made out a viable, prima facie claim against Coppinger in his individual capacity under § 1983 which cannot be dismissed on summary judgment. Coppinger argues that the § 1983 claim against him should be dismissed because he denies being present at the jail on the evening of April 12, 1999, and denies assaulting Kelsay. This argument fails because, as discussed supra, there is a genuine issue of material fact in dispute whether Coppinger assaulted Kelsay. Coppinger's motion for summary judgment to dismiss the § 1983 claim will be DENIED. 4. Section 1983 Claim Against Hamilton County
Hamilton County cannot be held vicariously liable pursuant to 42 U.S.C. § 1983 for constitutional torts committed by its employees and agents based on the doctrine of respondeat superior. There is no respondeat superior liability under § 1983 for governmental entities. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 387, 403 (1997); Collins v. Harker Heights, 503 U.S. 115, 121 (1992); Monell v. New York Department of Social Services, 436 U.S. 658, 694(1978); Gregory, 220 F.3d at 441; Fox, 176 F.3d at 348; Doe v. Claiborne County, Tenn., 103 F.3d 495, 507 (6th Cir. 1996). Hamilton County may not be sued under § 1983 solely on the basis that an injury has been inflicted by its police officers.
"Instead, it is when the execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. 658, 694 (1978); see also Brown, 520 U.S. at 403-04; Gregory, 220 F.3d at 441; Fox, 176 F.3d at 348; Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998); Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997); Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1994). Kelsay is required to demonstrate that Hamilton County, through its deliberate conduct, was the "moving force" behind the alleged deprivation of his federal constitutional rights and injury. Brown, 520 U.S. at 405; Gregory, 220 F.3d at 442.
Kelsay must also show there is a direct causal link between the governmental policy or custom and the deprivation of his federal constitutional rights. Kelsay is required to prove that his particular injury was incurred because of the execution of the policy or custom. Brown, 520 U.S. at 405; Gregory, 220 F.3d at 442; Claiborne County, 103 F.3d at 508; Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993). This is necessary to avoid de facto respondeat superior liability which is explicitly prohibited by Monell. Claiborne County, 103 F.3d at 508.
A custom must "be so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691; Claiborne County, 103 F.3d at 507. It must reflect a course of action deliberately chosen from among various alternatives. Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); Claiborne County, 103 F.3d at 508.
In his complaint, Kelsay avers that he was deprived of his constitutional rights as a result of a policy, procedure, or custom of Hamilton County and Sheriff Cupp. More specifically, Kelsay contends that Hamilton County and Sheriff Cupp, acting his official capacity, failed to adequately train, supervise, and control defendants Coppinger and Wright so as to prevent the violation of Kelsay's constitutional rights. Kelsay alleges that the failure to adequately train, supervise, and control Coppinger and Wright was done by Hamilton County and Sheriff Cupp with deliberate indifference to the known or obvious consequences.
The Court has determined Kelsay cannot prove that defendant Wright was employed by the Hamilton County Sheriff's Department in April 1999 when Kelsay alleges he was assaulted and beaten in his jail cell. But there is no dispute that Coppinger was employed by the Hamilton County Sheriff's Department in April 1999 as a corrections officer and security supervisor.
The Supreme Court in City of Canton v. Harris, 489 U.S. 378 (1989), recognized that a governmental entity can be held liable under § 1983 for its failure to properly train and supervise its employees. But liability will exist for Hamilton County only if Kelsay can prove that the county's failure to train evidences deliberate indifference to the rights of its inhabitants such that the failure to train in effect constitutes a governmental custom or policy within the Monell framework. Id.; Stemler, 126 F.3d at 865; Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994); Leach, 891 F.2d at 1247-48. A showing of simple or even heightened negligence will not suffice. Deliberate indifference is a stringent standard of fault requiring proof that the county government disregarded a known or obvious consequence of its action. Brown, 520 U.S. at 410; Stemler, 126 F.3d at 865.
A plaintiff ordinarily cannot demonstrate that a governmental entity acted with deliberate indifference without showing it was aware of prior unconstitutional actions of its employee and failed to respond. City of Canton, 489 U.S. at 390-91; Stemler, 126 F.3d at 865. Moreover, it is not enough for a plaintiff in a § 1983 case to merely show that his specific injury could have been prevented or avoided with more or better training. City of Canton, 489 U.S. at 390-91; Mayo v. Macomb County, 183 F.3d 554, 558 (6th Cir. 1999); Sova, 142 F.3d at 904; Lewis v. City of Irvine, Kentucky, 899 F.2d 451, 455 (6th Cir. 1990).
Kelsay points out that a policy of deliberate indifference may be found if Sheriff Cupp failed to investigate this incident and punish the officers responsible for beating Kelsay. A governmental entity can be deemed to have ratified unconstitutional acts committed by its employees by failing to meaningfully investigate those acts. Leach, 891 F.2d at 1248; Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985).
The Court has reviewed the record and Kelsay's response in opposition to the summary judgment motion. [Court File No. 22]. Kelsay contends that the Hamilton County Sheriffs Department has a higher than normal use of force at the jail against prisoners and there is a history or pattern of ignoring complaints by prisoners of excessive force. There is a dispute whether the Sheriff's Department conducted a meaningful investigation of the incident involving Kelsay, even though Kelsay's mother made jail supervisors aware of his serious injuries. According to Kelsay, no officer submitted an incident report about his injuries even though the Sheriff's Department's manual required an officer to notify the nurse and prepare an incident report upon learning that a prisoner has been injured. Kelsay also asserts that Coppinger had been named in two or three other civil suits involving assaults at the jail but Hamilton County had not conducted an investigation of Coppinger. Furthermore, Kelsay asserts that officers who use excessive force in the jail are not investigated and disciplined. Other jail officers who witness the use of excessive force against prisoners are not disciplined for failing to report it to the proper authorities. Kelsay argues that this lack of training, supervision and control over corrections officers adds up to and constitutes a policy or custom of deliberate indifference toward the constitutional rights of prisoners at the jail, and that this policy or custom of allowing excessive force at the jail was a proximate cause of the violation of Kelsay's constitutional rights.
There are genuine issues of material fact in dispute concerning whether Hamilton County can be held liable under 42 U.S.C. § 1983 for the assault committed upon Kelsay in his jail cell. Pursuant to FED. R. Civ. P. 56, the Court is required to view the facts and proof in the record in the light most favorable to Kelsay. For purposes of deciding the summary judgment motion, the Court must accept Kelsay's allegation that he was assaulted and beaten by Coppinger and several other unidentified jail corrections officers employed the Hamilton County Sheriff's Department. Kelsay may proceed to trial on his claim that Hamilton County failed to adequately train and supervise its corrections officers. The Court expresses no opinion whether Kelsay may or may not prevail on this claim. The Court has merely determined that Kelsay has enough to get to trial where he will have an opportunity to prove his case.
D. Tennessee Common Law Assault and Battery
Kelsay may also proceed to trial against Coppinger and Hamilton County on the Tennessee common law tort claim of assault and battery. There is a genuine issue of material fact in dispute whether Coppinger committed an assault and battery upon Kelsay. If Kelsay did commit this tort, then Hamilton County may be held liable for the actions of its employee or agent under the doctrine of respondeat superior.
Defendant Cupp is not being sued individually on this tort claim. As the Court reads the complaint, there is no common law assault and battery claim against Cupp personally. There is no allegation or proof offered to show that Cupp authorized, participated in, or condoned the alleged assault and battery on Kelsay on April 12, 1999.
Assuming arguendo that Kelsay is seeking to impose personal liability on Cupp in his individual capacity for an assault committed by corrections officers employed by the Hamilton County Sheriff's Department, Cupp cannot as a matter of Tennessee law be held personally liable for such a tort committed by his deputies. TENN. CODE ANN. § 8-8-301 provides that no sheriff "shall be liable for any wrongs, injuries, losses, damages, or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by the sheriff, whether the deputy is acting by virtue of office, under color of office or otherwise."
IV. Conclusion
The defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 [Court File No. 10] is GRANTED IN PART and DENIED IN PART as follows.
The motion is GRANTED to the extent that all federal and state claims against defendant John Anthony Wright are DISMISSED WITH PREJUDICE, and the plaintiffs claim brought under 42 U.S.C. § 1985(3) is DISMISSED WITH PREJUDICE as to all defendants.
The remainder of the summary judgment motion is DENIED because there are genuine issues of material fact in dispute which will have to determined at trial. Kelsay may proceed to trial on his claims against defendants Coppinger and Hamilton County brought under 42 U.S.C. § 1983 and under Tennessee common law for assault and battery. These are the only claims which remain before the Court for adjudication.
SO ORDERED.