Bell County Office of Jailer v. Nick J. Epps ( 2023 )

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1145-MR
BELL COUNTY OFFICE OF JAILER;
GARY FERGUSON, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
BELL COUNTY JAILER; TERESA
LEFEVER, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS AN
EMPLOYEE OF THE BELL COUNTY
DETENTION CENTER; AND JASON
MILLER, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS BELL
COUNTY DEPUTY JAILER APPELLANTS
APPEAL FROM BELL CIRCUIT COURT
v. HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 17-CI-00388
NICK J. EPPS APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
KAREM, JUDGE: The Bell County Office of Jailer; Gary Ferguson, individually
and in his official capacity as the Bell County Jailer; Teresa Lefever,1 individually
and in her official capacity as an employee of the Bell County Detention Center;
and Jason Miller, individually and in his official capacity as a Bell County Deputy
Jailer bring this interlocutory appeal from a Bell Circuit Court order denying their
motion for summary judgment. The suit against them was brought by Nick J.
Epps, an inmate whose stroke was untreated for several hours while he was
incarcerated at the Bell County Detention Center. Epps brought state and federal
claims against the appellants, alleging that they failed to follow state regulations
and jail policies which require inmates to be checked regularly and violated his
constitutional rights. Because the trial court’s order held that material issues of
fact remained as to whether Ferguson and Miller were entitled to qualified
immunity, its judgment as to this issue is not final and we are without jurisdiction
to hear this appeal.
Factual and Procedural Background
On the morning of November 23, 2016, Epps was pulled over by two
city policemen in Middlesboro, Kentucky for driving erratically. The officers
administered several field sobriety tests, which Epps failed. He was arrested at
1
This appellant’s surname is spelled inconsistently throughout the record and pleadings. We
have adopted the spelling “Lefever” used in the Notice of Appeal.
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9:32 a.m. and taken to Middlesboro ARH Hospital, where he consented to a blood
draw for an alcohol and drug screen.
At around 10:30 a.m., Epps was booked into the Bell County
Detention Center in Pineville, Kentucky. A supervisor at the jail described Epps as
appearing intoxicated and unsteady on his feet. The jail records show that a deputy
jailer named Annie Nierengarten was Epps’s booking officer, but she denied this.
According to the depositions of the staff who were on duty that day, the identity of
his booking officer is unclear.
Because he was charged with driving under the influence, Epps was
placed in the detox cell. The jail employees explained that an inmate brought in on
drug or alcohol charges would have a “detox sheet.” A guard was required to
check the inmate every 20 to 30 minutes and record it on the detox sheet. The
guard was also required to note any changes in the inmate’s condition and contact
medical personnel if his condition deteriorated. A control log was used to record
the identity of the guard performing the checks and to record each time a check
was performed. No detox sheet was found for Epps nor were there any checks on
him recorded in the control log.
At approximately 4:00 p.m. that afternoon, a jail deputy saw another
inmate in the detox cell flagging the camera to get the control room’s attention.
The deputy found Epps lying on his mat, vomiting. Ferguson, the Jailer, who had
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no direct contact with Epps while he was at the jail, received a phone call from the
jail staff who told him that Epps was ill and would need to be transported to the
hospital. He agreed and told them to go ahead without waiting for an ambulance.
Epps was admitted to the Pineville Community Hospital and then airlifted to the
University of Kentucky Hospital. He was diagnosed with an intraventricular
cerebral hemorrhage or stroke from which he did not fully recover. Epps, who was
54 years of age when he suffered the stroke, will require full-time care for the rest
of his life.
The lab results from the blood draw at the hospital following his arrest
show that Epps was not under the influence of drugs or alcohol. According to
Epps, the symptoms of drug or alcohol impairment he exhibited were due to the
massive stroke he was suffering. Epps retained a medical expert who opined that
his symptoms would have worsened throughout the day, which is inconsistent with
impairment from intoxication, and the failure of the jail personnel to check on him
for over six hours delayed his treatment and hampered his recovery.
Epps filed suit in Bell Circuit Court, naming multiple defendants,
including the City of Middlesboro; the Middlesboro Police Department and the
individual police officers who pulled him over; the Middlesboro ARH Hospital and
one of its employees; and the defendants associated with the Bell County
Detention Center, comprising the “Bell County Office of Jailer,” and the Bell
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County Jailer, Gary Ferguson; and five jail employees: Teresa Lefever; Deputy
Jailers Annie Nierengarten, Jason Miller, and Jerry Allen; and Michelle Hurt, a
nurse practitioner.
In regard to the Bell County Detention Center defendants, the
complaint asserted state law claims of negligence, failure to train and supervise,
and failure to promulgate policies and procedures relevant to inmate care. It also
asserted a claim pursuant to 42 United States Code (U.S.C.) § 1983, alleging that
the Bell County defendants had demonstrated deliberate indifference to the
symptoms of Epps’s stroke while he was incarcerated, in violation of the Fourth,
Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Epps
alleged that in the six and one-half hours which elapsed from the time he was
placed in the detox cell and the time he was discovered lying on his mat vomiting,
there is not a single record showing he was checked by jail personnel, despite
multiple witnesses admitting he was supposed to be checked and the check was
meant to be recorded in two separate logs.
Epps argued that the jail personnel failed to follow internal jail
policies as well as various Kentucky Administrative Regulations (KAR) which are
promulgated by the Department of Corrections pursuant to Kentucky Revised
Statutes (KRS) 441.055. 501 KAR 3:090 § 1(9) requires medical screenings of
prisoners at the time of their admission and 501 KAR 3:060 § 2(2) governs
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surveillance procedures for inmates in detox cell. Epps also contended that the
Jailer, Ferguson, failed to train his staff to observe the appropriate policies and
procedures.
After lengthy discovery, Epps agreed to dismiss his claims against one
of the Middlesboro deputies; the City of Middlesboro; and the Middlesboro ARH
hospital and its employee.
The remaining defendants moved for summary judgment. Following
a hearing, the circuit court dismissed all claims against the remaining Middlesboro
police officer and the City of Middlesboro. It further found that Jerry Allen and
Annie Nierengarten were entitled to qualified immunity in their individual and
official capacities and ordered all claims against them dismissed with prejudice.
The order concluded by stating that the motions for summary judgment of the
remaining defendants were overruled.
The remaining Bell County defendants filed a motion to alter, amend,
or vacate, seeking clarification as to the identity of the remaining defendants and
the basis for denying their motion for summary judgment. In regard to the
availability of immunity, the motion states: “Though not explicit in the order, it is
assumed the Court found that there was a material question of fact as to whether
the remaining parties were entitled to qualified immunity and that there is evidence
of record to support claims against these same parties in their official capacity.”
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Following a hearing, the circuit court issued an order in response to the
motion which stated in relevant part as follows:
This Court finds that there are material issues of
fact as to whether the Bell County Office of Jails acted
with deliberate indifference toward Plaintiff Nick Epps
along with Gary Ferguson, both individually and in his
official capacity, as well as Teresa Lefevers both
individually and in her official capacity, and Jason Miller
both individually and in his official capacity.
The Court further finds that there are material
issues of fact as to whether these Defendants are entitled
to the protections of qualified immunity, both
individually and in their official capacities.
This appeal followed.
Analysis
As a preliminary matter, we note that Epps’s response to the motion
for summary judgment stated that the claims against Lefever could be dismissed
because she had no involvement with, or responsibility for, his supervision or care
while he was at the jail. The response also asserted that the state law claims
against all the Bell County defendants in their official capacities were barred by
sovereign immunity because they are claims against Bell County. Therefore, the
only remaining claims to be addressed in this appeal are the availability of
immunity for (1) the state law claims brought against Miller and Ferguson in their
individual capacities; and (2) the federal law claims brought against Miller and
Ferguson, individually and officially.
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“Typically, only final judgments are appealable.” Upper Pond Creek
Volunteer Fire Department, Inc. v. Kinser, 617 S.W.3d 328, 333 (Ky. 2020) (citing
Kentucky Rules of Civil Procedure (CR) 54.01). “But in rare cases, Kentucky
affords a party the opportunity to appeal certain issues in a case before final
judgment has been issued, termed an interlocutory appeal.” Baker v. Fields, 543
S.W.3d 575, 577 (Ky. 2018). An immediate interlocutory appeal may be taken
from “an order denying a substantial claim of absolute immunity or qualified
official immunity[.]” Harrod v. Caney, 547 S.W.3d 536, 540 (Ky. App. 2018).
The scope of our review in this type of appeal is strictly limited. “[A]n appellate
court reviewing an interlocutory appeal of a trial court’s determination of a
defendant’s immunity from suit is limited to the specific issue of whether
immunity was properly denied, nothing more.” Baker, 543 S.W.3d at 578.
The Kentucky Supreme Court recently cautioned, however, that “a
trial court’s order is not immediately appealable simply because immunity is at
issue.” Kinser, 617 S.W.3d at 333. “If the trial court’s decision leaves the
immunity question unresolved, that order is not immediately appealable.” Id. To
illustrate this point, Kinser cited a Court of Appeals opinion, Chen v. Lowe, 521
S.W.3d 587 (Ky. App. 2017), which involved a former student suing a dean in his
individual and official capacities. The dean filed a motion to dismiss the suit on
the basis of qualified official immunity. The trial court denied the motion, finding
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that genuine issues of material fact remained regarding the dean’s entitlement to
qualified immunity. The Court of Appeals held that the appeal must be dismissed,
because
[i]n denying [the dean’s] motion to dismiss . . . the
circuit court did not make a final ruling on the issue of
qualified immunity. Rather, the court found that there
were disputed issues of material fact regarding [the
dean’s] entitlement to qualified immunity. Therefore, the
issue of [the dean’s] immunity remains unresolved, and
the order denying his motion to dismiss is not
immediately appealable.
Kinser, 617 S.W.3d at 334 (quoting Chen, 521 S.W.3d at 590-91).
A great deal of discovery has already occurred in the case at bar,
including depositions of all the defendants, which presumably would have
provided the court with an adequate factual basis for undertaking the analysis
required to determine the availability of immunity. In this way, the case differs
significantly from Kinser, in which the record was not highly developed. Kinser at
335. But “[a] court speaks only through its written orders[.]” Sidebottom v.
Watershed Equine, LLC, 564 S.W.3d 331, 334 (Ky. App. 2018). The Bell Circuit
Court’s order plainly states that material issues of fact remain as to whether the
defendants are entitled to qualified immunity. We must follow the directive of the
Kinser Court not to “undertake a fact-finding mission to resolve questions that the
circuit court has not yet fully addressed.” Kinser, 617 S.W.3d at 335. When, as in
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this case, an order is interlocutory rather than final, an appellate court is without
the jurisdiction necessary to review the order. Id. at 333.
Conclusion
For the foregoing reasons, this appeal is dismissed for lack of
jurisdiction.
ALL CONCUR.
ENTERED: _______________
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jason E. Williams Adrian Mendiondo
John F. Kelley, Jr. Lexington, Kentucky
London, Kentucky
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