Opinion
NO. 2017-CA-000304-MR
07-27-2018
PAUL CORNELIUS APPELLANT v. LOUISVILLE METRO DEPARTMENT OF CORRECTIONS; MARK BOLTON, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE LOUISVILLE METRO DEPARTMENT OF CORRECTIONS; LOUISVILLE METRO GOVERNMENT; SHAWN SARGENT; AND KEVIN HINTON APPELLEES
BRIEFS FOR APPELLANT: Kevan M. Doran Louisville, Kentucky BRIEF FOR APPELLEES: Michael J. O'Connell Jefferson County Attorney Peter F. Ervin Assistant Jefferson County Attorney Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 15-CI-001807 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Paul Cornelius has appealed from the January 31, 2017, Opinion and Order of the Jefferson Circuit Court granting summary judgment to the defendants in his claim for injuries he allegedly received in an altercation with corrections officers while he was an inmate in the Louisville Metro Department of Corrections. Cornelius disputes the circuit court's conclusions that his claims against Mark Bolton were barred by the doctrine of qualified official immunity and that his claims against Shawn Sargent and Kevin Hinton were time-barred. Because we agree that the circuit court erred as to both arguments as a matter of law, we reverse.
The underlying action began with the filing of a complaint on April 16, 2015, seeking damages for injuries Cornelius received one year earlier on April 17, 2014. As defendants, he named Louisville Metro Department of Corrections ("LMDOC"); Louisville Metro Government ("LMG"); and Mark Bolton, the director of LMDOC. Cornelius alleged that these three defendants were responsible for hiring, training, supervising, disciplining, and retaining/terminating officers of LMDOC, as well as for ensuring that the appropriate safeguards were in place to protect individuals in their care. In addition, Cornelius alleged claims against two other corrections officers, John Doe 1 and John Doe 2. He alleged that John Doe 1 physically assaulted him and that John Doe 2, and others, knew about it but did not take any steps to protect him. This negligent conduct, Cornelius alleged, violated Kentucky Revised Statutes (KRS) 71.040, which entitled him to damages pursuant to KRS 446.070. Cornelius sought damages for medical expenses, impairment, pain and suffering, and the loss of enjoyment of life. He also sought punitive damages and injunctive relief that would require officers to wear body cameras while on duty.
In his answer, Bolton argued that Cornelius had failed to state any claims against him upon which relief could be granted, stating that he had been sued in both his individual and official capacities. He argued that he was entitled to both absolute sovereign or governmental immunity in his official capacity and to qualified immunity in his individual capacity. Similarly, LMG and LMDOC argued that they were entitled to absolute governmental immunity. All sought dismissal of Cornelius's complaint in their respective answers. The summonses for the John Doe defendants were returned as undelivered, and no warning order attorneys were appointed for them.
In September 2016, the defendants filed a motion for summary judgment, arguing that there were no material issues of fact to resolve and that they were entitled to a judgment as a matter of law. They stated that in over seventeen months of litigation, Cornelius had not served them with any discovery to establish a theory of negligent supervision, hiring, or retention of employees. The grounds of the motion were as follows: First, they argued that Cornelius's claims against LMG and LMDOC were barred by sovereign immunity. Second, the claims against Bolton in his individual capacity should be barred by qualified immunity because his actions in retention and supervision were discretionary functions. Third, the claims against the John Doe defendants should be dismissed as barred by the one-year statute of limitations contained in KRS 413.130 because they had never been named or served and therefore it was too late to amend the complaint with relation back pursuant to Kentucky Rules of Civil Procedure (CR) 15.03(2)(b).
In response, Cornelius argued that Kentucky law mandates that the jailer and his employees are liable for injuries sustained while prisoners are in their custody and were preventable with the exercise of ordinary care and diligence pursuant to KRS 71.040. He contended that material issues of fact existed as to whether these acts and omissions occurred and Bolton's supervisory role over the officers involved in the altercation. He also contended that government officials could not claim immunity for illegal actions or for willful or malicious harm to another person. Cornelius went on to argue that he had served the John Doe defendants within the one-year limitations period and should be able to amend his complaint to include the recently identified guards. Lastly, he stated that he had not been afforded a reasonable opportunity to complete discovery. In reply, the defendants stated that Cornelius had failed to assert that his claims against Bolton were not protected by qualified immunity and that the John Doe defendants had never been served.
In October 2016, Cornelius moved the court for leave to file a first amended complaint to name Shawn Sargent and Kevin Hinton as defendants in place of the John Doe defendants. The court granted the motion by order entered November 22, 2016.
At the court's suggestion, Cornelius filed a supplemental response to the motion for summary judgment in December, arguing that Bolton was not entitled to qualified immunity for his ministerial acts. He also argued that his claims against the individual officers were subject to a five-year limitations period pursuant to KRS 413.120 and that even if the one-year limitations period applied, it should be tolled pursuant to CR 4.15 due to the concealment of the guards' identities. The defendants filed a supplemental memorandum as well, arguing that the one-year limitations period for personal injuries applied.
The court heard oral argument and entered an opinion and order on January 31, 2017, in which it granted summary judgment. First, the court held that LMG, LMDOC, and Bolton in his official capacity were all entitled to immunity pursuant to Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). Next, the court held that Bolton, in his individual capacity, was protected by the doctrine of qualified official immunity, finding that Cornelius's claims against Bolton stemmed from his alleged negligence in hiring, training, supervising, disciplining, and retaining personnel, which are discretionary functions, as opposed to the failure to follow or enforce policies or procedures in the jail or LMDOC. The court noted that Cornelius had been provided twenty months to conduct discovery, but he had failed to produce any evidence that his injuries were caused by a failure to follow any known procedures. Finally, the court held that Cornelius's claims against Sargent and Hinton were subject to a one-year statute of limitations found in KRS 413.140(1)(a). It did not agree with Cornelius that KRS 71.040 imposed a duty on a jailer that did not exist under common law, which would have extended the limitations period to five years pursuant to KRS 413.120(6). The court went on to hold that the amended complaint did not relate back to the filing of the original complaint because the certified mail receipts for the summonses for the John Doe defendants were not delivered until after the limitations period had expired. Additionally, the court found no basis to equitably toll the statute of limitations due to concealment. This appeal now follows.
On appeal, Cornelius contends that the circuit court erred in ruling that his claims against Bolton in his individual capacity were barred by the doctrine of qualified immunity and that his claims against Sargent and Hinton were barred by the one-year statute of limitations. The appellees have opposed Cornelius's arguments.
We agree with the appellees that Cornelius has not sought review of the circuit court's dismissal of LMG or LMDOC from his suit. Therefore, that portion of the ruling shall stand without further review.
Our standard of review in an appeal from a summary judgment is well-settled in the Commonwealth. "The standard of review on appeal when a trial court grants a motion for summary judgment is 'whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. International Ass'n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03.
The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists."Lewis, 56 S.W.3d at 436 (footnotes omitted). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Id. at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999). With this standard in mind, we shall review the circuit court's decision.
For the first issue, Cornelius contends in a two-part argument that Bolton cannot be protected from his claims by qualified immunity because 1) he was acting in bad faith, and 2) he was negligently performing a ministerial act rather than a discretionary one.
The Supreme Court of Kentucky's opinion in Yanero v. Davis, supra, is the seminal case on sovereign immunity in the Commonwealth. The Court instructs that official immunity "is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. It rests not on the status or title of the officer or employee, but on the function performed." Id. at 521, citing Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). Official immunity may be either absolute, when an officer or employee of the state or a governmental agency is sued in his representative capacity, or qualified, when the officer or employee is sued in his individual capacity. Yanero at 521-22. The question of whether an officer or employee is protected by the doctrine of official qualified immunity is a question of law, which is subject to de novo review. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (citations omitted).
The Yanero Court explained that qualified official immunity "affords protection from damages liability for good faith judgment calls made in a legally uncertain environment" and "applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority." Yanero, 65 S.W.3d at 522 (internal citations omitted). However, "an officer or employee is afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id., citing Franklin County v. Malone, 957 S.W.2d 195, 201 (Ky. 1997).
In his first sub-argument, Cornelius contends that Bolton was acting in bad faith and was therefore not entitled to immunity in his individual capacity. He asserts that he sought discovery from the appellees to establish this factual allegation, but this information was withheld in their discovery response. In Interrogatory No. 10, Cornelius had requested that the appellees "identify whether any of the individuals identified in response to Interrogatories Nos. 4-8 have been subject to disciplinary action or proceedings and describe the circumstances which resulted in each individuals [sic] being subject to disciplinary action or proceeding." The appellees objected to this interrogatory, stating that "[t]his information is not admissible nor expected to lead to admissible evidence." Cornelius argues that the appellees should not be able to argue that there was no evidence to support Bolton's bad faith while withholding the information he needs to establish this factual issue. See Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007) ("A summary judgment . . . . is proper only after the party opposing the motion has been given ample opportunity to complete discovery and then fails to offer controverting evidence.").
Interrogatories Nos. 4-8 requested the identities of LMDOC employees who were involved in the altercation, who processed Cornelius into LMCOD's custody, who processed him for discharge, who provided medical care for him, and who investigated the altercation. --------
Cornelius then posits that if this allegation of bad faith were to be confirmed by the appellees' possible discovery answer that the corrections officers involved in the altercation had been subject to prior disciplinary actions or proceedings for physical abuse to prisoners, "the finder of fact could reasonably conclude that Director Bolton had grounds for suspecting they posed a danger to prisoners but nonetheless failed to take proper action to protect them." In support, Cornelius cites to Hall v. Midwest Bottled Gas Distributors, Inc., 532 S.W.2d 449 (Ky. 1975), in which the former Court of Appeals addressed fatal injuries to prisoners in a jail explosion after one of the deceased inmates broke a gas line in the jail's heater:
It is provided by KRS 71.020 that:
'Each jailer shall have the custody, rule and charge of the jail in his county and all persons in the jail and shall keep the same himself or by his deputy or deputies. * * *'
Hall, 532 S.W.2d at 452.
The jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. 60 Am.Jur.2d, Penal and Correctional Institutions, s 17. Ratliff v. Stanley, 224 Ky. 819, 7 S.W.2d 230 (1928), imposed a duty on a jailer to exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody. However, the court held that a jailer cannot be negligent for failing to prevent what he could not reasonably anticipate. See Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350 (1940).
The testimony is sufficient to demonstrate a genuine issue of fact as to whether the jailer and assistant jailer reasonably could have anticipated that Payne would present danger to the other prisoners. Glover v. Hazelwood, Ky., 387 S.W.2d 600 (1965).
If the jury finds that the duty to protect the prisoners was breached by the jailer or assistant jailer, then one or both of them may be liable for negligence.
Cornelius argues that it follows, then, that if Bolton had been acting in bad faith, he was therefore not entitled to qualified immunity. He cites to the Supreme Court's opinion in Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011), which explains:
Thus, bad faith "can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee's position presumptively would have known was afforded a person in the plaintiff's position, i.e., objective unreasonableness." [Yanero, 65 S.W.3d at 523.] Acting in the face of such knowledge makes the action objectively unreasonable. Or, bad faith can be predicated on whether the public employee "willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive," id., which requires a subjective analysis.Here, the appellees did not provide Cornelius with the discovery responses that would establish whether Bolton was acting in bad faith or not. Therefore, we agree with Cornelius that he should be permitted to complete discovery on this issue and that the circuit court prematurely entered a summary judgment because a material issue of fact exists. On remand, the circuit court shall consider whether Bolton was acting in bad faith once discovery on this issue is complete.
We shall also consider whether Bolton's act in allegedly failing to protect Cornelius from harm that he could reasonably anticipate was ministerial in nature, for which immunity is not available, or discretionary. In Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), the Supreme Court defined a discretionary act as follows:
Discretionary acts are, generally speaking, "those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment." [Yanero] at 522 (citing 63C Am. Jur. 2d § 322). It may also be added that discretionary acts or functions are those that necessarily require the exercise of reason in the
adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959).The Haney Court observed:
[F]ew acts are ever purely discretionary or purely ministerial. Realizing this, our analysis looks for the dominant nature of the act. For this reason, this Court has observed that "an act is not necessarily taken out of the class styled 'ministerial' because the officer performing it is vested with a discretion respecting the means or method to be employed." Upchurch, 330 S.W.2d at 430 (emphasis added).311 S.W.3d 235 at 240 (footnote omitted). And in Marson v. Thomason, 438 S.W.3d 292, 302 (Ky. 2014), the Supreme Court of Kentucky emphasized that "[t]he nature of the acts performed by the teacher, or any governmental employee, determines whether they are discretionary or ministerial[,]" and continued:
Immunity is reserved for those governmental acts that are not prescribed, but are done, such as policy-making or operational decisionmaking, without clear directive. The responsibility for such acts rests on the individual who has made a decision to act based on his judgment, without established routine, or someone else in the process to allow burden-shifting. For this reason, and to ensure that governmental officials will exercise discretion when needed, our law allows qualified immunity from suit on the performance of discretionary
acts. This is a policy decision that has long been the law of the Commonwealth.
Cornelius contends that while Kentucky law provides that the promulgation of rules represents a discretionary function, the enforcement of those rules is ministerial, citing Williams v. Ky. Dep't of Educ., 113 S.W.3d 145, 150 (Ky. 2003). As he argued above, Cornelius states that he had sought, but had not yet obtained, information through discovery related to whether the corrections officers had been the subjects of disciplinary actions. The answer to that question would permit him to determine whether Bolton followed the applicable rules for training, disciplining, and retaining those officers. In support, he relies upon an unpublished opinion of the 6th Circuit Court of Appeals, in which that court stated it had previously ruled in the same case that the jailer's "alleged failure to enforce the EMS policy through supervision and training of the deputy jailers implicated a ministerial function for which Kentucky law provides no immunity." Vincent v. Warren County, Ky., 629 Fed. App'x 735, 738 (6th Cir. 2015). The Court expanded on its previous ruling and explained:
Two days after we issued our prior decision in Finn, the Supreme Court of Kentucky confirmed our understanding of state immunity law in Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014). Qualified official immunity protects a government official from suit for his conduct in setting policy or exercising judgment, but not when he engages in a purely ministerial act. Id. at 296. "The distinction between discretionary acts and mandatory acts is essentially the
difference between making higher-level decisions and giving orders to effectuate those decisions." Id. at 297. Thus, Strode's promulgation of the EMS policy was a discretionary function; his enforcement of the policy's terms - his "giving orders to effectuate" the policy - was ministerial. See id. Whether Strode's ministerial act was performed properly is a question reserved for the jury. See id.; Finn, 768 F.3d at 450.Vincent, 629 Fed. Appx. at 739-40.
The appellees contend that the holding in Vincent is at odds with the Supreme Court's holding in Haney v. Monsky, 311 S.W.3d 235, 244 (Ky. 2010), that supervision is a discretionary function: "But outside of that setting [negligent school supervision cases], we have found that supervising the conduct of others is a duty often left to a large degree - and necessarily so - to the independent discretion and judgment of the individual supervisor." Id.
We must agree with Cornelius that the entry of summary judgment was premature in this case and that he should be permitted to obtain discovery as to whether Bolton followed the rules in place for training, disciplining, and retaining corrections officers. Therefore, a material issue of fact remains to be decided. Accordingly, we reverse the circuit court's entry of summary judgment as to Bolton.
Next, we shall consider whether the circuit court properly applied the one-year statute of limitations in this case to hold that the claims against Sargent and Hinton were time-barred. Cornelius contends that because he brought his claim under KRS 71.040, which does not set a limitations period for bringing suit, the five-year statute of limitations set forth in KRS 413.120(2) and (6) should apply because that statute created a new theory of liability. See Overstreet v. Kindred Nursing Centers Limited Partnership, 479 S.W.3d 69, 73-74 (Ky. 2015) ("The five-year limitation period provided by KRS 413.120(2) for claims brought pursuant to a statute does not apply to claims based on a statutory provision that 'merely codifies common law liability and does not create a new theory of liability.' Toche v. American Watercraft, 176 S.W.3d 694, 698 (Ky. App. 2005)."). Cornelius argues that he did not only allege personal injury claims, but he also alleged that he was intentionally subjected to extreme emotional distress, which has a five-year limitations period. The appellees disagree, pointing out that KRS 71.040 did not create any new or specific statutory right but rather was a codification of the common law. Based upon our review of the applicable law, we agree with the appellees that the one-year statute of limitations set forth in KRS 413.140 applies in this case.
Based upon that holding, we must now consider whether the John Doe defendants were given proper notice under CR 15.03, as these defendants were not served or given notice of Cornelius's action until after the expiration of the limitations period. CR 15.03 provides for the relation back of amendments to a complaint and states in relevant part as follows:
(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
In Phelps v. Wehr Constructors, Inc., 168 S.W.3d 395, 396 (Ky. App. 2004), this Court addressed the application of CR 15.03 and explained that, "Kentucky's relation back rule preserves an amended complaint from a defendant's statute of limitations defense by treating the amendment as if it had been filed at the time of the original pleading."
This rule reflects the tension between the plaintiff's interest in relation back to preserve the plaintiff's claim and the defendant's interest in a limitations defense-timely notice and repose. In order to maintain a proper balance between these competing interests, if a new party is to be added after the limitations period has run, then all three requirements of CR 15.03 must be strictly construed.Phelps, 168 S.W.3d at 397, citing Reese v. General American Door Company, 6 S.W.3d 380, 383 (Ky. App. 1998).
[T]he relation back rule mandates that the party to be named in an amended pleading knew or should have known about the action brought against him. CR 15.03(2)(b). Actual, formal notice may not be necessary. Cf., Funk v. Wagner Machinery, Inc., Ky.App., 710 S.W.2d 860 (1986). Nevertheless, knowledge of the proceedings against him gained during the statutory period must be attributed to the defendant. CR 15.03(2)(b). As noted by the United States Supreme Court in its review of the federal relation back rule, "(T)he linchpin is notice, and notice within the limitations period." Schiavone v. Fortune aka Time, Inc., 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986).Nolph v. Scott, 725 S.W.2d 860, 862 (Ky. 1987) (footnote omitted).
Cornelius filed his lawsuit on April 16, 2015, the day before the one-year limitations period was set to expire. The appellees argue that the summonses for the John Doe defendants were returned to sender, meaning that neither Hinton nor Sargent could have received notice within the statutory period, and the stamp on the receipts established that they were not delivered until April 21, 2015. We disagree.
The John Doe defendants were not required to have actual notice of the filing of the action for CR 15.03 to apply. On the contrary, we hold that the circuit court should have permitted relation back in this case and held that suit against Sargent and Hinton was not time-barred. The action was commenced on April 16, 2015, within the limitations period, notwithstanding the subsequent completion of service only four days later. Because 1) Cornelius timely commenced the litigation, 2) an identity of interest existed between the named parties and the John Doe defendants, and 3) the actual service of Bolton served as notice to the John Doe defendants, the amended complaint should relate back to the date of the initial complaint. See Reese, 6 S.W.3d at 382 (quoting Halderman v. Sanderson Forklifts Co., Inc., 818 S.W.2d 270, 273 (Ky. App. 1991)) ("[N]otice to an original party may be imputed to a party sought to be added by amendment whenever 'there is a sufficient identity of interest' between the two."). Accordingly, we hold that the circuit court erred as a matter of law in ruling that Cornelius's suit against Hinton and Sargent was time barred.
For the foregoing reasons, the summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Kevan M. Doran
Louisville, Kentucky BRIEF FOR APPELLEES: Michael J. O'Connell
Jefferson County Attorney Peter F. Ervin
Assistant Jefferson County Attorney
Louisville, Kentucky