RENDERED: MAY 29, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0498-MR
HARVEY PELFREY; DANIEL SHOEMAKER; DEBBIE ALEXANDER; HARLEY CONKRIGHT; JESSE JONES; JULIE ADAMS; RANDALL ROSS; AND UNKNOWN EMPLOYEES, AGENTS, AND/OR REPRESENTATIVES OF THE THREE FORKS REGIONAL JAIL APPELLANTS
APPEAL FROM LEE CIRCUIT COURT v. HONORABLE MICHAEL DEAN, JUDGE ACTION NO. 19-CI-00124
THE ESTATE OF STEVEN DEWEY MCDOWELL, BY AND THROUGH BRENDA ROBERTS, AS ADMINISTRATRIX APPELLEE
OPINION REVERSING IN PART AND DISMISSING IN PART
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND A. JONES, JUDGES. THOMPSON, CHIEF JUDGE: Harvey Pelfrey, Daniel Shoemaker, Debbie
Alexander, Harley Conkright, Jesse Jones, Julie Adams, Randall Ross, and
Unknown Employees, Agents and/or Representatives of the Three Forks Regional
Jail (Appellants) appeal from an order of the Lee Circuit Court denying their
motion for summary judgment. Some of the Appellants argue that they are entitled
to summary judgment because their use of oleum capsicum (OC) to restrain inmate
Steven Dewey McDowell was discretionary rather than ministerial, thus entitling
them to qualified official immunity. Other Appellants argue that they are entitled
to summary judgment because no evidence was offered supporting the claims
against them. After careful review of the record and the law, we reverse in part the
order on appeal, and dismiss in part certain claims of error which are not properly
before us.
FACTS AND PROCEDURAL HISTORY
On March 27, 2019, Steven Dewey McDowell (McDowell) was
incarcerated at the Three Forks Regional Jail (Three Forks) in Beattyville,
Kentucky. On March 30, 2019, other inmates reported to jail staff that McDowell
was hallucinating, hearing voices, thought someone was trying to hurt him and
“acting crazy.” In response, at about 5:50 p.m., jail staff moved McDowell to a
medical observation cell. McDowell told Officer Shoemaker that he, McDowell,
was withdrawing from Xanax. Shoemaker told his supervisor, Captain Debbie
-2- Alexander, who passed this information on to nurse Julie Adams. Adams told staff
to begin detox procedures. Appellee alleges that McDowell never received a
medical or psychiatric evaluation.
At 11:23 p.m., deputies opened the cell where McDowell was being
held in order to allow another inmate to enter the cell. When the door was opened,
McDowell walked out of the cell. It is disputed whether he suddenly forced his
way out of the cell, or simply walked out without any threats or physical contact.
In either event, McDowell then ignored repeated commands from several staff
members to return to his cell. Over the next few minutes, deputy jailers Randall
Ross, Jesse Jones, and Harley Conkright sprayed McDowell with OC in order to
force his compliance. McDowell was largely unaffected by the OC, and stood or
walked in a hallway and attempted to make a phone call.
McDowell complied with the officers after being told that if he sat
down, he would not be sprayed again. Officers told McDowell to enter a shower to
rinse off the OC spray. McDowell was noncompliant. He stood and moved
toward a door that had been opened to ventilate the area. After continuing to
refuse to sit down, Conkright sprayed McDowell again. McDowell then became
compliant and entered the shower at 11:37 p.m.
After rinsing off the OC spray in the shower, McDowell was returned
by officers to his cell around midnight. Video shows McDowell walking normally
-3- and not acting out or arguing with staff. About 10 minutes later, at 12:10 a.m., an
officer looked into McDowell’s cell and saw him lying on the floor. After
determining that he needed to be resuscitated, staff began CPR on McDowell and
summoned EMS. McDowell was later pronounced deceased at the scene.
On November 22, 2019, the Estate of Steven Dewey McDowell, by
and through Michael McDowell, as Administrator (the Estate), filed the instant
action in Lee Circuit Court alleging negligence; use of excessive force/assault and
battery; negligent hiring, training, and supervision; negligent medical care;
violations of the Kentucky Constitution; and, violations of Kentucky
Administrative Regulations and Kentucky Revised Statutes (KRS) Chapter 441
that proximately resulted in McDowell’s wrongful death. The complaint asserted
among other claims that Three Forks violated its own policies and procedures by
failing to provide a medical evaluation to McDowell after the OC spray was used.
Appellees would later assert that the officers were using OC spray in violation of
Three Forks’ policy, which required written permission for staff to carry and use
OC spray. Three Forks allegedly had not given written permission prior to the
events at issue.
On January 1, 2020, Appellants filed a partial motion per Kentucky
Rules of Civil Procedure (CR) 12.02 to dismiss the complaint as against Three
Forks and all defendants in their official capacities. On February 10, 2020, the
-4- circuit court granted the motion. As a basis for the ruling, the court ruled that 1)
County governments are cloaked with sovereign immunity; 2) Three Forks is an
arm of County government; and, 3) suits against jail officials acting in their official
capacities were merely another way of suing a County government. The action
continued against the defendants in their individual capacities.
Discovery continued over the next four years. On May 2, 2024,
Appellants in their individual capacities filed a motion for summary judgment
pursuant to CR 56. In support of the motion, they argued that allegations regarding
constitutional violations and Kentucky Administrative Regulations do not provide
a private right of action. Further, they asserted that Appellants were entitled to
qualified official immunity under the excessive use of force and negligent medical
treatment claims because their acts were discretionary.
On August 9, 2024, the Lee Circuit Court entered an order denying
Appellants’ motion for summary judgment. The court ruled that to the extent the
policies and procedures of Three Forks were violated, the jail employees’ actions
in their private capacities were ministerial rather than discretionary; therefore, they
were not protected by qualified immunity. It also found that, though Appellants
argued that the use of OC and lack of treatment were not the cause of McDowell’s
-5- death,1 Appellee’s expert witness disagreed which created an issue of fact as to
causation on the wrongful death claim. This appeal followed.2
STANDARD OF REVIEW
This is an interlocutory appeal from the denial of a motion for
summary judgment. While the denial of a motion for summary judgment is
interlocutory and generally not appealable, Transportation Cabinet, Bureau of
Highways, Commonwealth of Kentucky v. Leneave, 751 S.W.2d 36, 37 (Ky. App.
1988), an exception is found where the basis for the motion is a claim of immunity.
Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009). This is
because immunity entitles its “possessor to be free from the burdens of defending
the action, not merely . . . from liability.” Id. (internal quotation marks and
citations omitted). Therefore, the scope of this review will be limited to the denial
of Appellants’ claims of entitlement to qualified official immunity, with no
consideration of substantive issues. Baker v. Fields, 543 S.W.3d 575, 577-78 (Ky.
2018).
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
1 Dr. Meredith Frame determined that McDowell’s death resulted from atherosclerotic cardiovascular disease and morbid obesity. 2 On May 11, 2026, Brenda Roberts was substituted as Administratrix of the Estate of Steven Dewey McDowell by way of order of this Court.
-6- together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). 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. Id. “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there
is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a
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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
ARGUMENTS AND ANALYSIS
ROSS, JONES, AND CONKRIGHT
Ross, Jones, and Conkright were the only Appellants to use OC
against McDowell. We will first address their claim of entitlement to qualified
official immunity based on their use of OC. They argue that the Lee Circuit Court
committed reversible error in denying their motion for summary judgment as to
-7- their defense of qualified official immunity. Directing our attention to Yanero v.
Davis, 65 S.W.3d 510, 522 (Ky. 2001), they argue that qualified official immunity
protects public officers and employees from tort liability for the negligent
performance of discretionary acts: i.e., those involving the exercise of discretion
and judgment, which are made in good faith and within the scope of the
employees’ authority. Appellants maintain that their attempts to control
McDowell, including their necessary and reasonable use of OC, were made in
good faith and within the scope of their authority; therefore, their acts fall squarely
within the elements of Yanero entitling them to qualified official immunity.
Appellee responds in part by arguing that Appellants’ appeal is untimely.3
Mattingly v. Mitchell, 425 S.W.3d 85 (Ky. App. 2013), is informative
in addressing the denial of summary judgment based on a claim of qualified
official immunity. In Mattingly, William Mattingly was working as an on-duty
Louisville Metro Police Department (LMPD) Officer when he observed a BMW
automobile operated by Gabriel Nelson speeding on the Watterson Expressway.
Mattingly activated the blue lights on his marked police vehicle and a high-speed
pursuit ensued. An off-duty officer in another vehicle observed the pursuit, but did
3 On April 25, 2025, this Court entered an order directing Appellants to show cause as to why this appeal should not be ruled untimely. Appellants responded on May 14, 2025. On July 9, 2025, this Court entered an order finding that sufficient cause was shown for additional time to file the tendered prehearing statement. In their Reply Brief, Appellants direct our attention to the July 9, 2025, order as dispositive of Appellee’s argument on this issue.
-8- not attempt to stop the BMW as he believed the pursuit was against LMPD policy.
After Mattingly disengaged the chase, the BMW crashed into a vehicle operated by
Barbara Cowan, which injured Cowan and killed Cowan’s passenger, Latonia
Mitchell.
The Estate of Latonia Mitchell filed a lawsuit against Mattingly
alleging negligence and substantive due process violations under 42 U.S.C.4 §
1983. Mattingly defended in part based on qualified official immunity. The
Jefferson Circuit Court found that Mattingly’s operation of his police vehicle
during the pursuit was ministerial in nature; therefore, he was not entitled to
qualified official immunity. Specifically, it determined that Mattingly violated
LMPD policy by conducting a pursuit in wet conditions with a minimal ability to
apprehend Nelson. It also ruled that a material issue of fact remained regarding
whether Mattingly’s pursuit was the proximate cause of the collision.
Mattingly appealed to this Court. A panel of this Court agreed with
the circuit court in finding that Mattingly violated LMPD policy in failing to
terminate his pursuit of Nelson. As such, Mattingly was not entitled to qualified
official immunity. On the issues of summary judgment, it again agreed with the
circuit court that a genuine issue of material fact remained as to whether
Mattingly’s actions were the proximate cause of Mitchell’s death. We will address
4 United States Code.
-9- the issues before us in a similar manner: first, whether the Lee Circuit Court
correctly determined that Appellants were not entitled to qualified official
immunity; and, second, whether they were entitled to summary judgment.
“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. Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity. . . . Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled . . . . But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. Qualified official immunity 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. An act is not necessarily “discretionary” just because the officer performing it has some discretion with respect to the means or method to be employed. Qualified official immunity is an affirmative defense that must be specifically pled.
Yanero, 65 S.W.3d at 521-22 (citations omitted).
Thus, to determine if Appellants Ross, Jones, and Conkright were
entitled to qualified official immunity, we must consider whether 1) their acts of
-10- using OC to control McDowell were discretionary; 2) those acts were made in
good faith; and 3) the acts were within the scope of their employment. Id.
Because immunity is a question of law, we will examine it de novo. Rowan Cnty.
v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), as corrected (Sep. 26, 2006). We will
now consider each element in turn.
1 - DISCRETIONARY ACTS
“Categorizing actions as either the performance of a discretionary
duty or the performance of a ministerial duty is vexing to litigants and courts
alike.” Patton v. Bickford, 529 S.W.3d 717, 724 (Ky. 2016). “A somewhat
rudimentary expression of the distinction between discretionary and ministerial
acts provides that [p]romulgation of rules is a discretionary function; enforcement
of those rules is a ministerial function.” Id. (internal quotation marks and citation
omitted). Yanero defines discretionary acts as “those involving the exercise of
discretion and judgment, or personal deliberation, decision, and judgment[.]”
Yanero, 65 S.W.3d at 522 (citation omitted). In contrast, a “ministerial duty is one
that requires only obedience to the orders of others.” Patton, 529 S.W.3d at 724
(internal quotation marks and citation omitted). And to further demonstrate the
vexing nature of this distinction, “[e]ven a ministerial act requires some
discretion.” Id.
-11- Guidance in applying this distinction to jail officials is found in
Rowan County, 201 S.W.3d 469. In Rowan County, a prisoner brought a
negligence action against Rowan County and two jailers after he was struck by a
falling tree during a voluntary roadside clearing project. In considering whether
the jailers’ acts in supervising the prisoners were discretionary or ministerial, the
Kentucky Supreme Court examined many cases holding that certain acts were
discretionary while others were found to be ministerial. The Supreme Court
determined that jailers’ supervisory authority over prisoners falls “within the scope
of their discretionary authority,” Rowan County, 201 S.W.3d at 491, and was “as
discretionary a task as one could envision.” Id. at 480.
Turning to the matter before us, Appellants Ross, Jones, and
Conkright were vested with discretion in how to control McDowell, who left his
cell without permission, walked toward a door that had been opened to ventilate
the area, failed to go to the shower area, and was otherwise noncompliant. Rather
than going “hands on,” Ross, Jones, and Conkright issued repeated verbal
commands which McDowell ignored. They then used OC to gain McDowell’s
compliance. These acts fall squarely within their authority to supervise and control
inmate behavior. Based on Yanero, Patton, and Rowan County, we conclude that
the use of OC by Appellants Ross, Jones, and Conkright was discretionary rather
than ministerial.
-12- 2 - GOOD FAITH
The next element required for a finding of qualified official immunity
is whether Appellants Ross, Jones, and Conkright acted in good faith. Good faith
is not so much an element to be proven, but is found where there is an absence of
proof of bad faith. “Once the officer or employee has shown prima facie that the
act was performed within the scope of his/her discretionary authority, the burden
shifts to the plaintiff to establish by direct or circumstantial evidence that the
discretionary act was not performed in good faith.” Rowan Cnty., 201 S.W.3d at
481 (quoting Yanero, 65 S.W.3d at 523). “Thus, the proof required necessarily
focuses on ‘bad faith,’ rather than ‘good faith.’” Id.
Here, and per Rowan County and the related authority, Appellants
Ross, Jones, and Conkright made a prima facie showing that their supervision of
McDowell and use of OC were within the scope of their discretionary authority.
As such, the burden shifted to Appellee to establish by direct or circumstantial
evidence that these discretionary acts were not performed in good faith. Id.
Appellee has not met this burden. Though Appellee argues that Ross, Jones, and
Conkright used too much OC and for too long, no persuasive evidence was
adduced that Ross, Jones, and Conkright acted in bad faith. Again, the uncontested
facts are that McDowell left his cell without permission and repeatedly failed to
comply with verbal commands. It was only then that Ross, Jones, and Conkright
-13- used OC to gain McDowell’s compliance. They stopped using OC when
McDowell became compliant.
In attempting to demonstrate that jail officials acted in bad faith,
Appellee argues that jail policy did not permit deputy jailers to carry OC spray in
the jail unless they had written authorization from Administrator Pelfrey. Appellee
contends that no such written authorization exists, thus demonstrating Appellants’
bad faith in their use of OC. Pelfrey, however, stated in deposition that Ross,
Jones, and Conkright were certified in the use of OC and that he, as Administrator,
considered this certification to satisfy the requirement of written authorization.
Because Ross, Jones, and Conkright were certified in the use of OC, and as they
carried OC in the jail with the knowledge and consent of Pelfrey, we do not
conclude that Appellee’s argument rebuts Appellants’ prima facie showing that
their supervision of McDowell and use of OC were within the scope of their
discretionary authority.
Appellee also asserts that Appellants’ use of OC was excessive, thus
demonstrating Appellants’ bad faith. The uncontested evidence, however, is that
Appellants stopped using OC when McDowell became compliant with their
commands. Appellee has not rebutted Appellants’ prima facie showing that their
use of OC was within the scope of their discretionary authority and thus made in
good faith.
-14- Appellee goes on to argue that Appellants’ failure to provide a
medical evaluation to McDowell after he was sprayed with OC, and in violation of
jail policy, constitutes additional proof that they were acting in bad faith. The
record demonstrates, however, that only 10 minutes elapsed between the time that
McDowell was returned to his cell around midnight and when a deputy jailer
looked into McDowell’s cell and saw him lying on the floor. Staff immediately
began CPR and summoned EMS. We do not conclude that the approximately 10-
minute lapse between McDowell’s return to his cell, and the observation that he
was lying on the floor, constitute a showing of bad faith for purposes of Yanero.
3 - ACTS MADE WITHIN THE SCOPE OF THEIR AUTHORITY
Appellee does not contest that Appellants’ acts were made within the
scope of their authority. The record amply demonstrates that Ross, Jones, and
Conkright’s use of OC fell within the scope of their discretionary authority to
supervise and control the inmate population.
Ross, Jones, and Conkright’s use of OC to control McDowell was 1) a
discretionary act; 2) which was made in good faith; and, 3) within the scope of
their authority. Yanero, 65 S.W.3d at 521-22. Accordingly, they are entitled to
qualified official immunity.5
5 We agree with Appellants that after concluding that they are entitled to qualified official immunity, McDowell’s cause of death is immaterial for purposes of the claims against them. See Wilson v. England, 705 S.W.3d 35, 40 (Ky. App. 2024), disc. rev. denied (Feb. 13, 2025).
-15- ADMINISTRATOR PELFREY
We next turn to whether Administrator Pelfrey is entitled to qualified
official immunity. Pelfrey was not working when the incident occurred.
Appellants argue that it appears the only reason he is part of this litigation is that
he was Jail Administrator at Three Forks at the time of these events. Appellee
argues that Pelfrey, as Jail Administrator, is not entitled to qualified official
immunity because he breached his ministerial duty to adequately train jail staff on
jail policies and procedures regarding the use of OC spray and medical evaluations
by medical professionals after the use of OC spray.
Again, we must consider the question of whether Pelfrey engaged in
1) a discretionary act; 2) which was made in good faith; and, 3) within the scope of
his authority. Yanero, 65 S.W.3d at 521-22. Appellee asserts that Pelfrey
breached a duty to make and enforce rules regarding use of OC and medical
evaluations. “[R]ule-making is an inherently discretionary function.” Rowan
Cnty., 201 S.W.3d at 478 (citing Yanero, 65 S.W.3d at 529). “As an intermediate
appellate court, this Court is bound by published decisions of the Kentucky
Supreme Court.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 829 (Ky.
App. 2014); SCR6 1.030(8)(a). We conclude therefore that Pelfrey’s rule-making
and enforcement functions are discretionary acts for purposes of Yanero.
6 Rules of the Supreme Court of Kentucky.
-16- As to the second element of Yanero, i.e., good faith, and as noted
above, “[o]nce the officer or employee has shown prima facie that the act was
performed within the scope of his/her discretionary authority, the burden shifts to
the plaintiff to establish by direct or circumstantial evidence that the discretionary
act was not performed in good faith.” Rowan Cnty., 201 S.W.3d at 481. Appellee
has not met this burden. “[A] single tragic incident involving jail personnel is not
sufficient to establish a claim of inadequate training[.]” Rowan Cnty., 201 S.W.3d
at 479 (quoting Franklin County, Ky. v. Malone, 957 S.W.2d 195, 200 (Ky. 1997),
reversed on other grounds by Yanero, 65 S.W.3d 510). Further, we find no basis
for concluding that jail personnel improperly failed to provide medical care to
McDowell during the brief period after which he was returned to his cell and
before being found on the floor. There simply was not enough time for jail
personnel to act.
The last issue with respect to Pelfrey is whether the acts complained
of were within the scope of his authority. Yanero, 65 S.W.3d at 521-22. The
record amply demonstrates that Pelfrey, as Administrator, had rule-making
authority with respect to both the conduct of jail employees and inmates. We
conclude from the foregoing that Pelfrey’s rule-making authority as to the use of
OC by prison staff, and their required medical response to the use of OC, were
-17- discretionary acts made in good faith and within the scope of his authority. Id. As
such, we hold that Pelfrey is entitled to qualified official immunity.
ALEXANDER, SHOEMAKER, AND ADAMS
Next, we will consider Appellants’ claims that Alexander, Shoemaker,
and Adams are entitled to summary judgment. Alexander was the shift
commander during the events described in the amended complaint. Shoemaker
was a deputy to whom McDowell stated that he was withdrawing from Xanax.
When McDowell told Shoemaker that he was experiencing withdrawal symptoms,
Shoemaker alerted Alexander, who in turn told nurse Adams. According to
Alexander’s deposition, Adams then directed staff to initiate detox protocols.
In their motion for summary judgment at p.12, Appellants argued that
Alexander, Shoemaker, and Adams were not negligent in their conduct as it relates
to McDowell. They asserted that Alexander did not use any force on McDowell
and left the area when the incident started; that Shoemaker never touched
McDowell and never used OC; and, that nurse Adams was not working when
McDowell was sprayed with OC. As such, Appellants argued in their motion for
summary judgment that Appellee could not prevail if the matter proceeded to trial
as the record was insufficient to support a claim of negligence. Based on this, they
argued that Alexander, Shoemaker, and Adams were entitled to summary
judgment.
-18- As addressed above, while the denial of a motion for summary
judgment is interlocutory and generally not appealable, Leneave, 751 S.W.2d at
37, an exception is found where the basis for the motion is a claim of immunity.
Prater, 292 S.W.3d at 886. We may not consider substantive issues on an
interlocutory appeal from summary judgment. Baker, 543 S.W.3d at 577-78.
Here, Alexander, Shoemaker, and Adams are arguing that the record
does not support a claim of negligence. This is a substantive argument outside the
scope of the exception; therefore, we are without authority to consider these
arguments on an interlocutory appeal from the denial of summary judgment. Id.
CONCLUSION
Appellants Ross, Jones, Conkright, and Pelfrey engaged in
discretionary acts in good faith and within the scope of their authority, and are
entitled to qualified official immunity. We may not consider the negligence claims
of Alexander, Shoemaker, and Adams as these are substantive arguments outside
the narrow exception to the general prohibition against interlocutory appeals from
summary judgment. For these reasons, we reverse the order of the Lee Circuit
Court as to Ross, Jones, Conkright, and Pelfrey, and hold that they are entitled to
qualified official immunity. They are entitled to summary judgment. Steelvest,
Inc., 807 S.W.2d at 480. We dismiss that portion of the appeal addressing the
-19- substantive claims of Alexander, Shoemaker, and Adams, and remand the matter to
the Lee Circuit Court for further proceedings.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Andrew D. DeSimone L. Dustin Riddle Maureen C. Malles Teddy L. Flynt Jonathan M. Gifford Salyersville, Kentucky Lexington, Kentucky Thomas P. Jones Beattyville, Kentucky
-20-