Alexander Morton v. Louisville Metro Government ( 2021 )

RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0098-MR
ALEXANDER MORTON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 16-CI-002567
LOUISVILLE METRO APPELLEE
GOVERNMENT
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Alexander Morton was terminated as a corrections
officer at the Louisville-Jefferson County Jail after allegedly using excessive force
on two different inmates1 in a fifteen-day span. Morton sued for wrongful
termination, but the Jefferson Circuit Court granted summary judgment to the
1
We use the term inmates as that is how the parties’ briefs refer to the two individuals upon
whom Morton used force, but it is not completely clear whether either/both had been convicted
of criminal offenses or were arrestees awaiting trial.
Louisville Metro Government (Louisville). We reverse because the record
contains disputed issues of material fact.
Morton admits that on December 9, 2013, he struck an inmate.2 It is
uncontested that the inmate was being verbally abusive, including directing racial
epithets towards Morton, who is African-American. But much of the rest of what
happened on that date is disputed.
Morton testified at his deposition that the inmate was “[n]ot following
orders[,]” had “resisted[,]” and “wasn’t complying with my commands. When he
was told to put his hands on his head, he took his hands off. I took that as an act of
aggression.” Morton testified at the deposition that he gave the inmate “[a] hard
empty-hand strike” and “[a] knee strike as well.”
Although Louisville stresses that the inmate was restrained, whether
the inmate was handcuffed when Morton struck him is hazier in Morton’s
deposition testimony:
Q. And was—[the inmate], was he handcuffed at the
time?
A. When we first put him—when we first put him in a
cell, yes.
Q. Did you take the restraints off at any time?
2
According to the investigative report, the inmate “was released the same day this case was
initiated” and did not respond to “[n]umerous messages” so he “was never interviewed for this
case.”
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A. When we told him—when we had him get on the
ground, we was [sic] about to exit the cell, we took his
handcuffs off and told him to keep his hands on his head.
And then, when he took his hands off, I took that as an
act of aggression.
...
Q. Was he under any form of restraint at the time that
you struck him?
A. When he was taking his hands off his head, no.
Q. Did he have leg restraints on or just nothing—
A. Just regular handcuffs.
At an unemployment hearing, Morton testified to a different version
of the events, seeming to base his decision to strike the inmate on the inmate’s use
of racial slurs:
We, uh, you know, we escorted him [the inmate] in the
cell. We, uh, ordered him to his knees when we was [sic]
giving him instructions on what to do when we take the
handcuffs off. And at that point, the handcuffs was [sic]
starting to come off or whatever, and he kept using the
word—so, he kept using, you know, the “N” word
against me, you know, whatever, so I—I gave him a
strike to his—his right side. And after that, um, that
was—that was all the force that was used on that
incident.
In his sworn statement to the Louisville Metro Department of
Corrections Professional Standards Unit (PSU), Morton related a third variation of
the events. Morton admitted giving the inmate an “unnecessary” knee strike (in
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contrast to his unemployment testimony about the strike to the inmate’s right side
being the only force used) because it had ‘“triggered’ something inside of him”
when the inmate used a particularly egregious racial slur. Morton also admitted
administering “two hard empty hand strikes” to the inmate’s head because the
inmate “tried to get up from the floor after being instructed to stay down and to
keep his hands on his head until the officers exited the cell” (which contrasts with
his unemployment hearing testimony that he gave only one strike to the inmate’s
side and his deposition testimony that he gave “a” strike to the inmate’s head).
Other officers took a dim view of Morton’s actions. In a sworn PSU
statement, Officer Evan McIntosh stated that he helped Morton escort a
handcuffed, verbally abusive inmate to a single cell. When McIntosh told the
inmate to go to his knees for the handcuffs to be removed, the inmate said, “what if
I don’t,” after which Morton “delivered a knee strike” to the inmate’s back. When
the inmate still did not get on his knees, Morton “delivered a ‘couple of punches’”
to the inmate’s back. McIntosh “felt the force Ofc. Morton used was inappropriate
and . . . didn’t feel Ofc. Morton’s actions were right.”
Similarly, Officer Kevin Hinton gave a sworn statement to PSU in
which he stated Morton gave the inmate “a knee strike” and “two or three closed
fist strikes[.]” Hinton stated the inmate “never posed a threat to anyone and
[Hinton] wouldn’t have struck” the inmate in that situation.
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Morton also admits he made physical contact with an inmate fifteen
days later, on December 24, 2013.3 Again, however, the precise details of that
encounter are not congruent among Morton and witnesses.
In his sworn statement to PSU, Morton recalled the handcuffed
prisoner speaking vulgarly, including making inappropriate sexual and racial
comments. According to Morton, the inmate complied when told to go to his
knees but “started ‘getting real squirmy’” and kept hurling offensive insults when
officers began to release him from handcuffs. Morton stated that when Officer
Charles Ennis, Jr. removed the inmate’s right hand from the handcuffs, the inmate
“tried to sit himself up some and turn towards him” and, since Morton did not
know what the inmate “was going to do[,]” Morton “put his hand against [the
inmate’s] face because he didn’t want [the inmate] to turn towards him.” Morton
admitted making a fist when he put his hand on the inmate’s face because “he
[Morton] had big hands and he didn’t want [the inmate] to bite or spit on his
hands.” Morton denied striking the inmate more than once and admitted the
inmate “was not a physical threat” which is why Morton “did nothing more than
put his hand on [the inmate’s] face.”
3
As with the previous incident, the PSU report notes that the inmate was not interviewed
because he “was released from custody on December 26, 2013” and subsequently “checked
himself into a mental health facility” where he was “unreachable for an interview.”
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Morton gave roughly similar sworn testimony at a grievance hearing
and an unemployment hearing. In his arbitration testimony, Morton averred that
when the handcuffs were being removed from the inmate he “started thrashing his
body, being squirrely . . . and at that point, you know, from my angle, from my
perspective, he started to kind of raise up and turn towards me. That’s when I
quickly reacted and put my fist to my [sic] face[.]” Similarly, Morton gave sworn
testimony at an unemployment compensation hearing that “when that right
handcuff was removed, that’s when he [the inmate] started to raise his body up and
look towards me. That’s when I quickly put my fist to his face. I did not strike
him multiple times to his face or body.”
Officer Ennis gave a sworn statement to PSU, relaying that he helped
Morton escort a handcuffed prisoner to a cell where Morton told the inmate, whom
Ennis described as being “a little mouthy,” to get on his knees. The inmate
complied and “was not being physically aggressive or resisting in any way.” But
when they were going to remove the handcuffs, the inmate continued to be
“verbally abusive[,]” whereupon Morton “just instantly attacked him [the inmate],
started hitting him in the face” until Ennis pushed “him” (presumably Morton)
back. Ennis stated that Morton struck the inmate “with his left fist at least twice.”
When the inmate continued hurling racial insults, Morton “hit [the inmate] two
more times in the side” and “put his knee in [the inmate’s] back and he came down
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pretty hard with his weight when he did it.” Ennis deemed Morton’s use of force
to be “both unnecessary and excessive.” Similarly, Officer Christina Easton
McNeese told PSU that Morton “either struck [the inmate] with his knee or he
placed his knee on [the inmate’s] back and applied pressure[,]” which McNeese
did not think “was a necessary use of force” since the inmate “was under control at
the time.” However, another officer on the scene, Morris Ceja, told PSU that the
inmate was making extremely racially derogatory comments, but Ceja did not see
anyone strike the inmate or use excessive/unnecessary force.
In 2014, Morton was terminated. Morton’s union filed a grievance on
his behalf, arguing his termination was not supported by just cause, as required by
the collective bargaining agreement (CBA), and was disproportionately excessive
to the discipline imposed on others. The grievance eventually proceeded to
arbitration, but in March 2016, the arbitrator found the termination did not violate
the CBA.
Morton then filed this action against Louisville, raising two main
issues in his amended complaint: breach of contract (the CBA) and
retaliation/racial discrimination. Louisville eventually moved for summary
judgment. On November 12, 2019, the trial court granted Morton’s motion to file
an amended complaint—the sole purpose of which was to drop his
retaliation/racial discrimination claim. Nonetheless, the very next day, less than a
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week before the trial was set to begin, the trial court issued an order granting
Louisville’s motion for summary judgment, but that order only discussed the
already-dismissed retaliation claim.
Morton then filed a motion to alter, amend or vacate, correctly noting
that the trial court had not addressed the breach of contract claim. In its response
to the motion to alter, amend, or vacate, Louisville argued—apparently for the first
time—that Morton lacked standing to allege a breach of the CBA because he was
not a party to that contract.
In December 2019, the trial court denied Morton’s motion to vacate.
The trial court found that the CBA provided that termination was a permissible
penalty for misconduct. It ruled that “[g]iven the serious nature of the accusation,
dismissal was an appropriate and permissible sanction under the Collective
Bargaining Agreement.” The trial court also found that Morton lacked standing
because “the grievance procedure set forth in the CBA is the exclusive remedy for
deciding any grievance.” Notably, the order does not mention that the trial court
viewed the evidence in the light most favorable to Morton; indeed, it does not
contain any substantive discussion of the facts. Morton then filed this appeal.
The overarching question before us is whether the trial court properly
granted summary judgment to Louisville. But we first must address the trial
court’s conclusion that Morton lacked standing to sue for alleged violations of the
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CBA because he was not a party to that contract since a lack of standing would
inherently doom Morton’s summary judgment arguments. See Commonwealth ex
rel. Beshear v. Commonwealth Office of the Governor ex rel. Bevin, 498 S.W.3d
355, 360 (Ky. 2016).
Standing focuses on whether a party has a legally cognizable,
“personal stake in the outcome of controversy.” Petition Committee by and
Through a Majority of its Members v. Board of Education of Johnson County,
Kentucky, 509 S.W.3d 58, 63 (Ky.App. 2016). And, as a general matter, “the
obligations arising out of a contract are due only to those with whom it is made; a
contract cannot be enforced by a person who is not a party to it or in privity with
it[.]” Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 579
(Ky. 2004) (quotation marks, citation, and footnote omitted). But that general rule
is inapplicable here.
Although not discussed by the trial court, even prior to the Civil War,
Kentucky recognized that “the party for whose sole benefit a contract is evidently
made may sue thereon in his own name, although the engagement be not directly to
or with him.” Allen v. Thomas, 3 Met. 198, 60 Ky. 198, 199 (1860). That
doctrine, which now is usually described as third-party standing, means that “a
third party for whose benefit a contract is made may maintain an action thereon;
however, he must have been a party to the consideration or the contract must have
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been made for his benefit” because “the mere fact that he will be incidently
benefited by the performance of the contract is not sufficient to entitle him to
enforce it.” Ball v. Cecil, 285 Ky. 438, 148 S.W.2d 273, 274 (1941). See also
Olshan Foundation Repair and Waterproofing v. Otto, 276 S.W.3d 827, 831
(Ky.App. 2009) (explaining third parties may seek to enforce the terms of a
contract where they can prove it was intended to benefit them directly).
Here, the CBA was intended to benefit employees such as Morton.
That conclusion is inescapable since Louisville Ordinance No. 095, Series 2012,
which approved the 2012-2015 CBA at issue here, stated in relevant part that the
CBA is “for and on behalf of bargaining unit employees within the Louisville
Metro Corrections Department concerning . . . terms of employment, benefits and
other matters[.]” Therefore, since the CBA was explicitly intended to benefit
employees such as Morton, he has third-party standing.
Our conclusion is not swayed by Brown v. Sterling Aluminum
Products Corporation, 365 F.2d 651 (8th Cir. 1966), the lone federal case cited by
the trial court for its contrary conclusion. First, as a lower federal court decision
(indeed, an extraterritorial one) it is not binding. Bell v. Commonwealth, 566
S.W.2d 785, 788 (Ky.App. 1978). Second, Brown actually supports Morton’s
position.
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In Brown, the issue was whether a company violated a CBA by
moving the location of the plant where the plaintiff-employees worked. The
Eighth Circuit held that the employees lacked standing because they were
attempting to enforce collective rights, but an individual could bring an action
“seeking to enforce a right that is personal to him and vested in him at the time of
the suit.” Brown, 365 F.2d at 656-57. Since Morton is seeking to enforce his
individual rights, his claims are not barred under Brown.
We further disagree that the CBA provides for arbitration to be “the
exclusive remedy for deciding any grievance.” The CBA neither states this, nor
has Louisville or the trial court cited any authority in support of such a
construction of its terms. Although factually distinguishable, we have issued at
least one opinion on the merits of breach of contract claims regarding a CBA
between Louisville and its employees (firefighters, in that case). Metro
Louisville/Jefferson County Government v. Abma, 326 S.W.3d 1 (Ky.App. 2009).
We cannot conclude the CBA bars Morton from exercising his otherwise
constitutionally guaranteed right to access the courts to seek redress if not
disciplined for “just cause.”
Having determined that Morton has standing, we turn to whether
summary judgment on the merits was proper. When we review a trial court’s
decision to grant summary judgment, the question is:
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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. 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 word impossible . . . is meant to be used in a
practical sense, not in an absolute sense. 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.
Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010)
(internal quotation marks and citations omitted).
As Morton notes, the trial court’s decision on the breach of contract
claim does not state that it examined the evidence according to the exacting
summary judgment standards. In fact, it does not contain any discussion of the
record. When we view the record in the light most favorable to Morton
considering all material factual disputes in his favor, it is plain that summary
judgment is precluded. Although it may be unlikely that Morton would prevail at
trial (given the damning testimony of other officers and the inconsistencies in some
of Morton’s own testimony of events), such a result is not impossible.
As to the December 9 incident, Morton stated under oath that the
inmate had resisted and was not following commands, including taking his hands
off his head and trying to get up from the floor. Morton also alluded to the inmate
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not being handcuffed when struck by Morton. On the other hand, Morton also
gave sworn testimony which could be construed as stating that the inmate was still
handcuffed when Morton struck him, and that Morton did so because the inmate
called Morton a disgusting racial epithet. Morton was not consistent in stating how
many times he struck the inmate, and at least once admitted he gave the inmate an
unnecessary knee strike. Other officers also testified that Morton used
unnecessary, inappropriate force against the inmate and made physical contact with
the inmate more than once.
The record regarding the December 24 incident is similarly mixed.
Morton testified that the partially handcuffed inmate was raising up and turning
toward him, so Morton put his fist against the inmate’s face once; other officers
testified that Morton put his knee in the handcuffed inmate’s back and struck the
inmate’s face more than once.
Frankly, Louisville’s conclusion that Morton used excessive force
twice within a span of fifteen days is aligned by the testimony of other officers.
And, Morton’s arguments to the contrary notwithstanding, using excessive force
against an inmate twice in such a short time span—especially against a restrained
inmate—would logically provide good cause for termination under the CBA. Even
Morton’s version of the events is not consistent, especially regarding the December
9 incident. But the purpose of summary judgment is not to award victory to
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whichever party the court finds most believable or which has amassed the most
evidence. Instead, a court must grant summary judgment only if it would be
functionally impossible, not merely difficult, for a party to prevail at trial. Ogden
v. Employers Fire Ins. Co., 503 S.W.2d 727, 729 (Ky. 1973); Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Here, a jury could choose to give more credence to Morton’s
statement(s) that the inmate(s) were fully or partially uncuffed and that each had
failed to obey commands and made aggressive or threatening movements.
According to Morton, his responsive use of force was permissible under
Louisville’s use of force policies. Under those circumstances, a reasonable juror
could conclude Morton did not use excessive or unnecessary force one or both
times, meaning there was not good cause for his termination. Since the evidence is
disputed on some key areas, summary judgment is improper.
Finally, our conclusion that there are issues of disputed fact
precluding summary judgment means we need not address the parties’ sundry
additional arguments at length. For example, Morton argues the investigation was
flawed because it was not concluded within sixty days, as contemplated by the
CBA. Morton also argues it was improper under the CBA and/or employee
policies and procedures to terminate him without first using graduated sanctions.
Again, the parties have not cited to where we may locate in the record either the
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entire CBA or the entire policies and procedures for Louisville employees. But it
appears to be undisputed that, as a general matter, graduated sanctions for
misconduct are preferred and investigations of alleged misconduct should be
concluded within sixty days. But, despite the trial court’s statement to the contrary
in its ruling, mere allegations—even serious ones—are insufficient to merit
termination unless they are proven. And there is a dispute here as to whether the
allegations were proven. If proven, however, egregious misconduct may result in
termination, and Morton has not cited to anything mandating that an employee
must be given a lesser sanction before being terminated or that an investigation
lasting more than sixty days is invalid.
We also need not delve deeply into Morton’s related argument that
similarly situated employees were sanctioned less harshly. Morton has provided
only a spreadsheet showing the discipline imposed on other employees but has not
provided a full explanation of the facts and circumstances involved in those
situations such that we can determine whether they truly were similarly situated
(i.e., that Morton was treated differently).
We also decline to accept Louisville’s argument that a correctional
officer may never, under any circumstances, use force against a restrained inmate.
We agree with the unremarkable proposition that, as a general principle, physical
force should not be used against an inmate who poses no danger. See, e.g., Powell
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v. Fugate, 364 F. Supp. 3d 709, 724 (E.D. Ky. 2019) (“Needless to say,
gratuitously punching, macing, and/or tasing a restrained inmate, as described by
Powell, would violate the inmates clearly established constitutional rights.”). But
holding that any use of force against a restrained inmate would always be
excessive and unreasonable takes that general proposition too far. First, there is
some indication in Morton’s testimony that at least one of the inmates was at least
partially unrestrained. Second, even a restrained inmate may still pose dangers to
officers and others by doing things like biting, kicking, spitting, and stomping.
In short, the propriety of force is dependent upon the facts. And only
a trial, not summary judgment, may resolve disputed facts. Our conclusion is
simple: if Morton used excessive force against inmates twice within fifteen days,
Louisville had just cause to terminate him. But there are material, disputed facts
preventing us, or the trial court, from concluding that Morton did so. Accordingly,
Louisville has not shown with the unquestionable clarity necessary to support
summary judgment that it would be impossible for Morton to prevail at trial.
For the foregoing reasons, the Jefferson Circuit Court is reversed, and
the matter is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joshua T. Rose Michael J. O’Connell
Louisville, Kentucky Jefferson County Attorney
Louisville, Kentucky
J. Denis Ogburn
Assistant Jefferson County Attorney
Louisville, Kentucky
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