Bell County Office of Jailer v. Nick J. Epps

• Court: Court of Appeals of Kentucky
• Decided: August 17, 2023
• Docket: 2022 CA 001145
• Status: Unknown

Opinion

RENDERED: AUGUST 18, 2023; 10:00 A.M. NOT TO BE PUBLISHED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.

-2- 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

-3- 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

-4- 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

-5- 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.”

-6- 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.

-7- “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

-8- 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

-9- 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

-10-