# Stein v. Gunkel

> District Court, E.D. Kentucky · November 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10179897

## Case

- **Court:** District Court, E.D. Kentucky
- **Decided:** November 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10179897

## How later opinions describe it (automated extraction)

- noting that an unresolved question of law cannot qualify as “clearly established law” under the qualified immunity test and assuming the Farmer standard applies otherwise

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 19-159-DLB-CJS

CHARLES GEORGE STEIN PLAINTIFF

v. MEMORANDUM OPINON AND ORDER

CHRISTOPHER GUNKEL, et al. DEFENDANTS

*** *** *** ***

I. INTRODUCTION
This matter is before the Court on Defendants Christopher Gunkel and Tabatha
Sterling’s Motion for Summary Judgment. (Doc. # 21). This Motion has been fully briefed,
(Docs. # 31 and 34). For the reasons set forth herein, the Motion for Summary Judgment
is GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
On or about November 7, 2018, Plaintiff Charles George Stein was arrested and
charged with possession of controlled substances and drug paraphernalia. (Doc. # 1 ¶
12). After his arrest, Stein was housed in the Boone County Detention Center (“BCDC”).
(Id. ¶ 11). The booking process is based on BCDC’s classification policy which include
the following relevant classifications: (1) high risk and (2) segregation. After the inmates
are classified initially, their classification is reviewed 72 hours after their booking. (Id. at
5). An inmate is classified as high risk if they “are considered to be suicidal, or require
special medical or mental health needs,” and are placed in single cell housing. (Id. at 7).
Alternatively, an inmate is placed in the segregation classification if they “are considered
assaultive toward staff or other inmates, require protective custody, or are assigned by
disciplinary review.” (Id.). The segregation classification also requires that the inmate be
placed in single cell housing, for at least the 72 hours before the second classification
occurs. (Id. at 8-9). During Stein’s booking, Defendant Tabatha Sterling classified Stein

as high risk due to Stein stating, “I want to die, just kill me, I don’t care about living
anymore.” (Docs. # 1 ¶¶ 16-17 and 21-5 at 1). Stein was temporarily held for
approximately twelve hours before being moved to a detox cell by Defendant Christopher
Gunkel. (Docs. # 1 ¶¶ 17-18 and 21-4 at 1-2). A detox classification is separate from the
original classification determination. (Doc. # 27 at 23). A nurse at BCDC would assess
an inmate who was previously placed in the high risk classification due to suicidal
thoughts and decide if he was cleared to be placed in general population or in a detox
cell. (Id.). An inmate placed in a detox cell is placed with other inmates. (Doc. # 24 at
6). When moving an inmate into a detox cell, the officer assigning them to the new cell

can access the jail management system which provides an inmate’s criminal history,
answers to booking questions, and other relevant information. (Id. at 7).
Around the same time Stein was brought into BCDC, another arrestee, Jordan
Webster, was booked following his arrest for menacing and resisting arrest. (Docs. # 1
¶¶ 19-20 and 31-3). Webster was previously admitted to the Emergency Room at Saint
Elizabeth Florence for a mental health evaluation where he attempted to assault a guard
at the hospital. (Docs. # 1 ¶¶ 21-23 and 31-4 at 1). After charging the guard, Webster
was grabbed by an officer and attempted to resist arrest. (Docs. # 1 ¶ 24 and 31-4 at 1).
When booked into BCDC, Webster was placed in a high risk mental health hold. (Docs.
# 1 ¶ 27 and 31-4 at 1). Defendants had access to the citation accompanying Webster’s
arrest, which described his behavior at Saint Elizabeth, and that Webster had an
outstanding warrant for assault and was known to exhibit violent tendencies. (Docs. # 1
¶¶ 28-29 and 31-4 at 2-3). During Webster’s booking, Defendant Sterling classified him
as high risk, (Doc. # 21-14 at 1), and four hours later, Defendant Gunkel updated

Webster’s classification from pre-classification to high risk. (Id. at 2). Webster was placed
in a detox cell with Stein on the evening of November 7, 2018 by a different officer, who
is not a party to this action. (Docs. # 1 ¶ 30 and 21-14 at 3).
Around 8:00 p.m.1 on November 7, 2018, Webster violently assaulted Stein while
he slept. (Docs. # 1 ¶ 33 and # 21-12 at 1-2). Another cellmate alerted guards to stop
the assault. (Docs. # 1 ¶ 34 and 21-12 at 1). Stein was transported to the emergency
room at St. Elizabeth’s and was treated for a traumatic brain injury, orbital wall fracture,
nose fracture, finger fracture, contusions, post-concussion syndrome, emotional distress,
and lacerations. (Id. ¶¶ 36-37). As a result, Stein suffers from memory problems, pain,

and emotional distress. (Id. ¶ 37). After Webster’s assault of Stein, Webster was
reclassified into the segregation classification. (Doc. # 21-14 at 4).
III. ANALYSIS
A. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists where “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

1 The Complaint alleges that the incident occurred at 10:00 p.m., but the incident report
states that the incident occurred at 8:00 p.m. (Doc. # 21-12 at 1).
Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment “bears
the burden of showing the absence of any genuine issues of material fact.” Sigler v.
American Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citing Plant v. Morton Int’l
Inc., 212 F.3d 929, 934 (6th Cir. 2000)). In deciding a motion for summary judgment, the
Court must draw all reasonable inferences in favor of the non-moving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Following the Court’s
review of the record, if a “rational factfinder could not find for the nonmoving party,
summary judgment is appropriate.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 349 (6th Cir. 1998).
B. 42 U.S.C. § 1983 Deliberate Indifference Claim
42 U.S.C. § 1983 states that any “person who, under color of any statute . . .
subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law.” To make out a claim under § 1983, a plaintiff must show: “(1) that he

or she was deprived of a right secured by the Constitution or laws of the United States;
and (2) that the deprivation was caused by a person acting under color of law.” Robertson
v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). Here, Plaintiff asserts that he was deprived
of his Eighth and Fourteenth Amendment rights to be free from cruel and unusual
punishment. (Doc. # 1 ¶¶ 39-40, 44).2 The Supreme Court has recognized that the Eighth

2 A pretrial detainee’s rights, like Stein, are protected by the Fourteenth Amendment’s Due
Process clause, which entitles pretrial detainees “to the same Eighth Amendment rights as other
inmates.” Richko v. Wayne Cty., Mich., 819 F.3d 907, 915 (6th Cir. 2016) (quoting Thompson v.
Cty. Of Medina, Ohio, 29 F.3d 238, 242 (6th Cir. 1994). Therefore, the standard laid out in Farmer
v. Brennan, 511 U.S. 825 (1994), “although rooted in the Eighth Amendment . . . applies with
equal force to a pretrial detainee’s Fourteenth Amendment claims.” Id. (citing Ruiz-Bueno v.
Scott, 639 F. App’x 354, 358 (6th Cir. 2016)).
Amendment requires prison officials, such as those working at BCDC on the night Stein
was attacked, “to protect prisoners from violence at the hands of other prisoners.” Farmer
v. Brennan, 511 U.S. 825, 833 (1994).3 However, not “every injury suffered by one
prisoner at the hands of another [] translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834.

Until September of this year, to sustain a § 1983 claim on a theory of deliberate
indifference, a pretrial detainee had to meet both an objective and subjective component.
Lamb v. Howe, 677 F. App’x 204, 208 (6th Cir. 2017). Under the objective component,
plaintiffs had to show that “the official was deliberately indifferent ‘to a substantial risk of
serious harm’ to the inmate.” Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004)
(quoting Farmer, 511 U.S. at 828). To meet the subjective component, plaintiffs had to
demonstrate “that (1) ‘the official being sued subjectively perceived facts from which to
infer a substantial risk to the prisoner,’ (2) the official ‘did in fact draw the inference,’ and
(3) the official ‘then disregarded that risk.’” Richko v. Wayne Cty., Mich., 819 F.3d 907,

915 (6th Cir. 2016) (quoting Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir.
2014)).
In September of 2021, the Sixth Circuit modified the subjective component. Now,
to sustain a § 1983 claim on a theory of deliberate indifference, the pretrial detainee must
prove either that the official “acted [or failed to act] intentionally to impose the alleged

3 Plaintiff advocates for the application of the standard set out in Kingsley v. Hendrickson,
576 U.S. 389 (2015), rather than the one set out in Farmer. (Doc. # 31 at 12-14). In Kingsley,
which involved an excessive force claim by a pre-trial detainee against officers at a jail, the
Supreme Court determined that “a pretrial detainee must show only that the force purposely or
knowingly used against him was objectively unreasonable.” Id. at 396. The Sixth Circuit clarifies
the standard for pretrial detainees in Brawner v. Scott Cty., Tennessee, 14 F.4th 585 (6th Cir.
2021) discussed below.
condition, or recklessly failed to act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee, even though the official knew, or should have
known, that the condition posed an excessive risk to health or safety.” Brawner v. Scott
Cty., Tennessee, 14 F.4th 585, 597 (6th Cir. 2021) (quoting Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017)) (alterations in original). Unlike the Eighth Amendment, an official

can violate a pretrial detainee’s Fourteenth Amendment rights without “meting out any
punishment.” Id. at 596. The “Due Process Clause can be violated when an official does
not have subjective awareness that the official’s acts (or omissions) have subjected the
pretrial detainee to a substantial risk of harm.” Id. (emphasis added). Other district courts
have interpreted the subjective component of the standard to now impose a “knew or
should have known” civil standard of liability. Sowah v. Greenlaw, No. 1:21-CV-218-CEA-
SKL, 2021 WL 4786378, at *3 (E.D. Tenn. Oct. 13, 2021) (“It is a ‘knew or should have
known’ civil standard of liability.”) (citations omitted); Huntley v. Fuller, No. 1:21-CV-350,
2021 WL 4621777, at *6 (W.D. Mich. Oct. 7, 2021) (knew or should have known standard

of disregard). Thus, Brawner stands for the proposition that Defendants must have either
intentionally placed Stein in danger or recklessly disregarded a substantial risk of harm
of which they knew or should have known.
Here, neither Defendant Gunkel nor Sterling acted recklessly in the face of an
unjustifiably high risk of harm to Stein. First, Gunkel did not make any classification
change to Webster’s status since he was on suicide watch; he simply updated the
information listed because another officer forgot to change Webster’s status after his
initial classification. (Doc. # 24 at 8). Further, Gunkel states that in a situation like this,
he would not have reviewed any of Webster’s booking information nor could he change
the classification since he was on suicide watch. (Id.). As such, Gunkel could not have
done anything to mitigate the risk of harm to Stein nor put him in any danger.
Defendant Sterling’s initial classification of Webster was “high risk” because he
made suicidal statements. (Doc. # 27 at 27-28). High risk inmates are placed in single
cell housing with restricted programming and privilege eligibility. (Doc. # 21-1 at 7). Ten

hours after Sterling’s shift, Sergeant Berry reclassified Webster from “high risk” to “detox,”
and placed him in Stein’s cell. (Docs. # 21-9 and 27 at 31). Sterling could not have
recklessly disregarded the risk nor failed to mitigate the risk to Stein when Webster was
reassigned while she was not even at work. Further, her initial classification segregated
Webster from other inmates; she had no control over that classification once she left.
Even when viewing the facts in a light most favorable to Plaintiff, Stein cannot
make out a deliberate indifference claim. Even if he could, qualified immunity shields
Defendants from liability in this case.
C. Qualified Immunity

An official sued under § 1983 is entitled to qualified immunity unless it is shown
that the official violated a statutory or constitutional right that was “‘clearly established’” at
the time of the challenged conduct. Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (citing
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). And a “defendant cannot be said to have
violated a clearly established right unless the right's contours were sufficiently definite
that any reasonable official in the defendant's shoes would have understood that he was
violating it.” Id. (citing al-Kidd, 563 U.S. at 741). If “judges disagree on a constitutional
question, it is unfair to subject police to money damages for picking the losing side of the
controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). “As a matter of public policy,
qualified immunity provides ample protection to all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 335 (1986).
First, neither Gunkel nor Sterling were plainly incompetent or knowingly violated
the law. Gunkel was simply executing an administrative task by updating Webster’s
classification. (Doc. # 24 at 8). If anything, he was remedying the mistake of another

officer who failed to adequately label Webster’s current status in the tracking system.
Gunkel did not violate any established law by updating the status of an inmate from a
previous classification because he did not and could not alter it. (Id.). Likewise, Sterling
was not incompetent nor knowingly violating the law when she classified Webster as high
risk. (Doc. # 27 at 27-28). Sterling was ensuring that Webster was not a danger to himself
or others when she placed him on suicide watch. (Id.). Accordingly, qualified immunity
would shield Defendants’ actions from § 1983 liability.
Even so, Stein must prove that both Gunkel and Sterling’s actions violated clearly
established law at the time of his classification in 2018. While it is clearly established that

prison officials have a duty “to protect prisoners from violence at the hands of other
prisoners,” not “every injury suffered by one prisoner at the hands of another [] translates
into constitutional liability for prison officials.” Farmer, 511 U.S. at 833-34 (citations
omitted). The defendant must show that he is “incarcerated under conditions posing a
substantial risk of serious harm.” Id. at 834 (citations omitted). The mental state
requirement to hold an official liable is deliberate indifference. Id. As noted above,
Brawner has now established that the defendant must have acted either intentionally or
recklessly failed to act with reasonable care to mitigate the risk even though the defendant
knew or should have known of the risk to the detainee. 14 F.4th at 597 (quoting Darnell,
849 F.3d at 35).
However, Brawner was decided in 2021, three years after the incident that gave
rise to this matter. 14 F.4th at 585; (Doc. # 1 ¶¶ 11-12). Therefore, either (1) the law was
not clearly established or (2) Brawner cannot control in this case. See Beck v. Hamblen
Cty., Tennessee, 969 F.3d 592, 601 (6th Cir. 2020) (noting that an unresolved question

of law cannot qualify as “clearly established law” under the qualified immunity test and
assuming the Farmer standard applies otherwise).
If the law was not clearly established, then neither Gunkel nor Sterling could have
violated Stein’s rights and qualified immunity bars Stein’s claims against them. If Brawner
does not control, then the Farmer test would apply to this case.
1. Farmer Analysis
Under Farmer, to sustain a § 1983 claim on a theory of deliberate indifference, the
plaintiff must meet both an objective and subjective component. Lamb, 677 F. App’x at
208. Under the objective component, the plaintiff must show that “the official was

deliberately indifferent ‘to a substantial risk of serious harm’ to the inmate.” Greene, 361
F.3d at 294 (quoting Farmer, 511 U.S. at 828)). To meet the subjective component, the
plaintiff must demonstrate “that (1) ‘the official being sued subjectively perceived facts
from which to infer a substantial risk to the prisoner,’ (2) the official ‘did in fact draw the
inference,’ and (3) the official ‘then disregarded that risk.’” Richko, 819 F.3d at 915
(quoting Rouster, 749 F.3d at 446).
A. Objective Component
To succeed on the first component of the Farmer standard, Plaintiff must show that
Defendants were deliberately indifferent to a substantial risk of harm to Stein. Greene,
361 F.3d at 294. This risk of harm “caused by the conditions of confinement must have
been, objectively, sufficiently serious to require constitutional protection.” Lamb, 677 F.
App’x at 208 (citing Farmer, 511 U.S. at 834). This risk has been found in a variety of
situations, including being beaten without cause by a prison guard, Curry v. Scott, 249
F.3d 493, 506 (6th Cir. 2001), and more similarly to the case at hand, being housed with

an inmate who has previously demonstrated a proclivity for violence and a history of
mental illness, Richko, 819 F.3d at 916.
However, in Richko the plaintiff was housed with an inmate, not temporarily placed
in holding with the other inmate like Stein was with Webster. 819 F.3d at 911-12. Once
Webster was at BCDC, he did nothing to indicate that he posed a substantial risk of
serious harm to the other inmates. As both Sterling and transporting officer Vaske noted,
Webster was calm when he was booked, there was no indication that he was assaultive,
and “he didn’t really talk the whole way to jail.” (Docs. # 27 at 25 and 26 at 8). However,
Sterling did find that Webster was suicidal during booking and in fact classified him as

high risk, where he was housed alone, so even if he was an objectively substantial risk of
harm to others, Sterling did not take any action subjecting any other inmate to that risk.
(Doc. # 27 at 27-28). Again, Gunkel could not have addressed any risk that Webster may
have posed to other inmates as he was on suicide watch and not allowed to be
reclassified per BCDC’s policy. (Doc. # 24 at 8).
B. Subjective Component
“A fact finder may infer” that an official had actual knowledge of the risk through
circumstantial evidence or “may conclude a prison official knew of a substantial risk from
the very fact that the risk was obvious.” Curry, 249 F.3d at 506 (quoting Farmer, 511 U.S.
at 848). Liability can be established by showing that the correctional officer “refused to
verify underlying facts that he strongly suspected to be true, or declined to confirm
inferences of risk that he strongly suspected to exist.” Farmer, 511 U.S. at 843 n.8.
In Richko, the court found that an official was aware of an inmate’s risk of
substantial harm to other inmates when the official (1) was aware of the inmate’s self-

reported history of mental illness, (2) knew that the inmate had not taken his medication
for these conditions for six days, (3) knew that the inmate had been arrested the day
before for attempted assault with a dangerous weapon, (4) knew that the inmate had been
hospitalized six times for his mental illnesses, and (5) discovered that the inmate had
2,334 prior encounters with mental-health services. 819 F.3d at 907. While considering
the subjective awareness of another defendant, the court noted that “the key issue here
is [] whether, during the relevant time period . . . there is any evidence showing that [the
defendant] heard the assault taking place and chose not to respond.” Id. at 919. The
court found that the defendant, who was on duty at the time, likely heard the assault taking

place. Id. at 919-20.
Under either formulation, neither Sterling nor Gunkel could be found to have been
subjectively aware of the risk that Webster may have posed to Stein. First, unlike the
official in Richko who had several categories of information relating to the inmate’s mental
health issues and violent tendencies, Gunkel did not look at, nor was he made aware
through other means, of Webster’s previous assault or difficulty with his arrest. (Doc. #
24 at 8). Gunkel was simply changing Webster’s status because someone else “had
forgot to change it from pre-classification to high risk.” (Id.). Even if Gunkel was aware
of Webster’s previous assault, Gunkel could do nothing to reclassify Webster because he
was on suicide watch so he “could not have made any movement until [Webster] was
cleared from mental health.” (Id.). Further, unlike Richko where one defendant was on
duty during the assault, Gunkel could not have been aware of Webster’s assault on Stein
as Gunkel was off-duty hours before the two inmates were even placed in the same cell.
(Docs. # 24 at 6 and 21-9); Richko, 819 F.3d at 919. Gunkel cannot be held liable for the

actions of the other officer who changed Webster’s classification. Combs v. Wilkinson,
315 F.3d 548, 558 (6th Cir. 2002) (“It is well settled that § 1983 liability will not be imposed
solely on the basis of respondeat superior.”) (citations omitted).
Defendant Sterling was also off duty before Stein and Webster were placed in the
same cell. (Doc. # 27 at 31). Further, Sterling did not see the note that labeled Webster
as someone with “violent tendencies.” (Id. at 25-26). While Sterling was aware that
Webster had been involved in some struggle, she was not aware at the time of booking
that Webster had been involved in a fight with one of the arresting officers. (See id. at
28-29). Even if the risk Webster posed to other inmates was obvious, Sterling was not

responsible for Webster’s movement into a cell with Stein. She originally classified
Webster as high risk and placed him in a cell alone. (Id. at 27-28). The decision to move
Webster from high risk to detox, with Stein, was made by another officer. (Doc. # 21-9).
Therefore, Sterling cannot be held liable for the actions of the non-party officer who placed
the two inmates in the same cell that led to the assault underlying this matter. Combs,
315 F.3d at 558 (citations omitted).
As such, even under the Farmer test for deliberate indifference, Stein’s claims fail.
IV. CONCLUSION
Thus, for the reasons articulated herein, IT IS HEREBY ORDERED as follows:
(1) | Defendants’ Motion for Summary Judgment (Doc. # 21) be, and is hereby
GRANTED;
(2) | This matter is DISMISSED with prejudice and STRICKEN from the Court's
active docket;
(3) Plaintiff's Motion for Leave to File Supplemental Authority in Support of
Response to Motion for Summary Judgment (Doc. # 35) is hereby GRANTED; and
(4) |The Court will enter a corresponding Judgment with this Order.
This 2nd day of November, 2021.
SEER Signed By:
4 Oi jj David L. Bunning Db
“ax”, United States District Judge

KADATA\ORDERS\Cov2019\19-159 Order Granting MSJ.docx

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10179897. Public record. Not legal advice.