Williams v. Kenton County, KY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:21-CV-080 (WOB-CJS)

CARY WILLIAMS, PLAINTIFF,

VS. MEMORANDUM OPINION AND ORDER

KENTON COUNTY, KY, ET AL., DEFENDANTS.

This is a lawsuit brought by Cary Williams against Kenton

County and four deputies at the Kenton County Detention Center

stemming from an incident that occurred there in August 2020.

Currently before the Court are Defendants’ Motion for Summary

Judgment, (Doc. 74), Plaintiff’s Motion to Exclude or Limit the

Testimony of Defendants’ Expert, (Doc. 79), and Plaintiff’s Motion

to Strike the New Arguments in Defendants’ Reply or, in the

alternative, for Leave to File a Sur-Reply Instanter, (Doc. 92).

The Court has carefully reviewed this matter and, being

advised, now issues the following Memorandum Opinion and Order.1

Factual and Procedural Background

On August 16, 2020, Plaintiff Cary Williams (“Williams”)

attended a friend’s birthday party in Covington, Kentucky and also

visited a nearby bar. (Doc. 74 at 2; Doc. 88 at 8). After a

bartender called 911 regarding an alleged altercation between

1 The Court will deny Plaintiff’s Motion to Strike but will grant

Plaintiff’s Motion for Leave to File a Sur-Reply Instanter. The Court

has considered all briefing submitted by both parties.

Williams and another patron, Covington Police officers responded

to the scene at 10:05 p.m.2 (Doc. 74 at 2; Doc. 74-3 at 3–4). At

10:10 p.m., the officers arrested Williams for public intoxication

and the arrest was captured by their body-worn cameras.3 (Doc. 74

at 2 n.2; Doc. 76, Cov. BWC; Doc. 88 at 8). At 10:10:50 p.m.,

Williams fell onto the sidewalk while handcuffed. (Doc. 74 at 19;

Doc. 76, Cov. BWC; Doc. 88 at 43 n.14).

Williams was transported to the Kenton County Detention

Center (“KCDC”) and arrived there around 10:40 p.m. (Doc. 74-10 at

1; Doc. 88 at 8). He was assessed at intake and thereafter assigned

to an isolation cell under existing COVID-19 protocols because he

is immunocompromised and because he was placed on suicide watch

based on his answers to the relevant questions during the booking

2 Although the video footage from the body-worn cameras submitted as

evidence in this case uses Coordinated Universal Time (UTC), all time

references herein are to Eastern Daylight Time. (See Doc. 74 at 2 n.2).

3 Several video files were filed conventionally with the Court. (Doc.

76; Doc. 89). The “Cov. BWC” footage was captured by the arresting

officers’ body-worn cameras, the “Williams C 16_T1” and “Williams C

19_T1” footage were captured by surveillance cameras at the Kenton County

Detention Center, and the “Williams,_Cary_disruptive (Slaughter)”

footage was captured by Deputy Leonard Slaughter’s body-worn camera. The

parties do not dispute that the Court may properly consider the video

footage, and both the Plaintiff and the Defendants have discussed it at

length in their briefing. (See Doc. 74 at 4; Doc. 88 at 9–13). Further,

the Supreme Court found that a video may be considered at the summary

judgment stage, particularly where it contradicts a version of the facts

as told by one of the parties. Scott v. Harris, 550 U.S. 372, 380–81

(2007); see also Dunn v. Matatall, 549 F.3d 348, 353 (6th Cir. 2008)

(finding that Scott “instructs us to determine as a matter of law whether

the events depicted on the video, taken in the light most favorable to

[the plaintiff], show that the Officers’ conduct was objectively

reasonable.”).

process.4 (Doc. 74 at 3; Doc. 88 at 8). Deputy Noah Schoultheis

(“Deputy Schoultheis”) and Deputy Leonard Slaughter (“Deputy

Slaughter”) escorted Williams from booking to the medical

isolation unit where Deputy Cory Fleckinger (“Deputy Fleckinger”)

and Deputy Nick Taylor (“Deputy Taylor”) were on post. (Doc. 74 at

3; Doc. 88 at 9). Defendants agree that Williams did not display

any physical aggression toward any deputy or clerk during the

booking process or while being escorted to the isolation unit.

(Doc. 74 at 3).

Once Williams was inside his cell, Deputy Slaughter held open

a property bag and instructed Williams to remove his street clothes

and change into a suicide smock due to his “high watch” status.

(Id.; Doc. 88 at 9). Deputy Slaughter’s body-worn camera and KCDC’s

surveillance cameras captured the incident that followed. (Doc. 74

at 4; Doc. 76, Williams C 16_T1, Williams,_Cary_disruptive

(Slaughter)). As Williams began undressing, Deputy Schoultheis

approached the door and stood to Deputy Slaughter’s left in the

open doorway. (Doc. 76, Williams C 16_T1; Doc. 74 at 3; Doc. 88 at

9). Deputy Fleckinger stood behind Deputies Schoultheis and

Slaughter. (Doc. 76, Williams C 16_T1; Doc. 74 at 3–4; Doc. 88 at

9). At 11:43:01 p.m., as Williams was removing his shorts, Deputy

Slaughter told him, “You’re not going to throw these at me when

4 Williams disputes that he was suicidal at KCDC but agrees that he was

nonetheless placed on suicide watch. (Doc. 88 at 9 n.1).

you take them off.” (Doc. 76, Williams,_Cary_disruptive

(Slaughter); Doc. 88 at 9). Williams handed over his shirt and

shorts without incident. (Doc. 76, Williams,_Cary_disruptive

(Slaughter); Doc. 88 at 9).

At 11:43:27 p.m., the deputies instructed Williams to take

his underwear off. (Doc. 76, Williams,_Cary_disruptive

(Slaughter); Doc. 88 at 9). Williams responded, “Take my underwear

off? Really?” (Doc. 76, Williams,_Cary_disruptive (Slaughter);

Doc. 88 at 9). He then called the deputies “fascists” and “Nazis”

while removing his underwear. (Doc. 76, Williams,_Cary_disruptive

(Slaughter)).

At 11:43:42 p.m., Williams tossed his underwear toward Deputy

Schoultheis. (Id.). Deputy Schoultheis used his right hand to

deflect the underwear and they landed on his right shoulder. (Id.).

One second later, Deputy Slaughter reached forward and removed the

underwear from Deputy Schoultheis’s shoulder. (Id.). At 11:43:44

p.m., Deputy Schoultheis moved forward, making contact with

Williams’s neck using a straight arm and an open hand, and began

pushing him under the chin toward the rear of the cell. (Id.)

Deputy Slaughter entered the cell behind Deputy Schoultheis while

Deputy Fleckinger remained in the cell doorway. (Doc. 76, Williams

C 16_T1). At 11:43:45 p.m., Williams fell backward onto the floor

of the cell. (Doc. 76, Williams,_Cary_disruptive (Slaughter)). His

right arm was blocked from the camera by Deputy Schoultheis’s body,

but his left arm was above him, reaching toward the wall. (Id.).

At the same moment, Deputy Slaughter said “Alright.” (Id.; Doc. 88

at 11).

While Williams remained on the floor of the cell, Deputy

Schoultheis yelled, “Do it again,” to which Williams replied, “Do

what?” and “Yeah. Whatever.” (Doc. 76, Williams,_Cary_disruptive

(Slaughter); Doc. 88 at 11). Thereafter Deputy Schoultheis left

the cell and Deputy Slaughter tossed in the suicide smock. (Doc.

76, Williams,_Cary_disruptive (Slaughter)). At 11:44:08 p.m.,

Deputy Slaughter closed the cell door. (Id.).

At around 3:40 a.m., Licensed Practical Nurse Angela Miller

(“Nurse Miller”) arrived at Williams’s cell, accompanied by Deputy

Taylor, to do a “diabetic check.” (Doc. 74 at 5; Doc. 88 at 12).

Though this visit was captured on surveillance video, there is no

audio recording of the encounter. (See Doc. 76, Williams C 19_T1).

At 3:42:18, a.m., Williams can be seen gesturing to his right arm.

(Id.). However, he thereafter uses his right arm to sign a

document. (Id.).

The parties agree that, at some point during Nurse Miller’s

visit, Williams complained of arm pain. (Doc. 74 at 5; Doc. 88 at

12–13). However, Nurse Miller documented that she did not observe

visible signs of injury or pain, symptoms suggesting the need for

immediate emergency medical referral, or restricted mobility due

to deformity or injury. (Doc. 74-8 at 1).

Williams was released from KCDC later that morning at 7:19

a.m. (Doc. 74 at 5; Doc. 74-10 at 1; Doc. 88 at 13). He retrieved

his car and then went to the Emergency Department at the Veterans

Affairs Medical Center, where he was diagnosed with a fractured

right ulna. (Doc. 74 at 5; Doc. 87-1 at 1, 3; Doc. 88 at 13).

Williams’s injury was treated by orthopedic specialists for three

months and required multiple braces. (Doc. 74-1, Williams Dep. at

42:4–24, 45:4–10, 45:22–46:5, 46:21–47:8, Doc. 88 at 13).

On June 24, 2021, Williams filed this action. (Doc. 1). In

the operative pleading, the Second Amended Complaint, he alleges

claims for: (1) violation of the Fourth and Fourteenth Amendments

against Kenton County and Deputies Schoultheis, Slaughter,

Fleckinger, and Taylor pursuant to 42 U.S.C. § 1983; (2) assault

and battery against Deputy Schoultheis; and (3) negligence against

Deputies Schoultheis, Slaughter, Fleckinger, and Taylor. (Doc.

36).

Defendants filed a motion for partial judgment on the

pleadings, arguing that the statute of limitations had expired on

Williams’s state law claims. (Doc. 38). The Court denied that

motion without prejudice because the issues it raised were beyond

the scope of the allegations in the Second Amended Complaint and

specifically noted that Defendants may “raise the issue again at

a later date.” (Doc. 56 at 3–4). After discovery, Defendants moved

for sanctions based on an allegedly late expert disclosure, or

alternatively, moved to limit the use of Williams’s expert’s

opinions to rebuttal of the expert opinions offered by Defendants.

(Doc. 68 at 1–2). The Court denied Defendants’ motion without

prejudice, but specifically noted that Williams was only permitted

to use his expert’s opinions to rebut expert opinions offered by

Defendants. (Doc. 73 at 1–2).

Analysis

Summary judgment is proper where the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and the movant is entitled to a judgment as a

matter of law. Fed. R. Civ. P. 56(c). “In determining whether there

exists a genuine issue of material fact, the court must resolve

all ambiguities and draw all factual inferences in favor of the

non-moving party.” See Swallows v. Barnes & Noble Book Stores,

Inc., 128 F.3d 990, 992 (6th Cir. 1997) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986)). Summary judgment is

inappropriate if the evidence would permit a reasonable jury to

return a verdict for the non-moving party. Id.

A. Excessive Force

Williams’s § 1983 claim against Deputy Schoultheis for use of

excessive force must be analyzed under the framework of the

qualified immunity doctrine. The qualified immunity analysis has

“two steps that can be undertaken in any order: (1) whether the

public official’s conduct violated a constitutional right, and (2)

whether that right was clearly established at the time of the

events.” Stewart v. City of Euclid, Ohio, 970 F.3d 667, 672 (6th

Cir. 2020) (citing Godawa v. Byrd, 798 F.3d 457, 462–63 (6th Cir.

2015)).

i. Constitutional Violation

Under the first prong of qualified immunity analysis, the

Court must identify “the specific constitutional right allegedly

infringed by the challenged application of force.” Graham v.

Connor, 490 U.S. 386, 394 (1989). “[A] pretrial detainee’s

excessive force claim brought under the Fourteenth Amendment’s Due

Process Clause is subject to the same objective standard as an

excessive force claim brought under the Fourth Amendment.” Clay v.

Emmi, 797 F.3d 364, 369 (6th Cir. 2015) (citing Kingsley v.

Hendrickson, 576 U.S. 389, 396–97 (2015)). “Under the Fourth

Amendment, [courts] apply an objective reasonableness test,

looking to the reasonableness of the force in light of the totality

of the circumstances confronting the defendants, and not to the

underlying intent or motivation of the defendants.” Burgess v.

Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (internal citations

omitted).

“The inquiry is highly fact-dependent, and must take into

account the ‘perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with the 20/20

vision of hindsight.’” Coley v. Lucas Cnty., 799 F.3d 530, 538

(6th Cir. 2015) (quoting Kingsley, 576 U.S. at 397). The analysis

should also account for the government’s need to manage the

facility and defer when appropriate to practices necessary “‘to

preserve internal order and discipline and to maintain

institutional security.’” Kingsley, 576 U.S. at 397 (quoting Bell

v. Wolfish, 441 U.S. 520, 547 (1979)). In determining the

reasonableness of the force used, courts should consider the

totality of the circumstances, including factors such as the

relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; any effort

made by the defendant to limit the amount of force; the severity

of the problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting. Id.

(citing Graham, 490 U.S. at 396).

Here, although the parties agree that at some point Williams

suffered a broken arm, they disagree as to whether it occurred

when Deputy Schoultheis used force on him or earlier that evening,

when he fell during his arrest. (See Doc. 74 at 19; Doc. 88 at

43). However, this is a genuine issue of material fact and a

reasonable jury could find that Deputy Schoultheis’s use of force

resulted in Williams’s injury, particularly in light of the fact

that the video shows Williams falling forward onto his knees during

his arrest while his hands were handcuffed behind his back, not

backward onto his arm as Defendants have argued.5 (See Doc. 74 at

19; Doc. 76, Cov. BWC; Doc. 88 at 43 n.14).

Regarding the severity of the issue and the threat reasonably

perceived by the officer, Defendants argue that the underwear

blocked Deputy Schoultheis’s vision, “making him vulnerable to

further physical aggression,” that Williams was unrestrained,

completely nude, intoxicated, and physically defiant, and that

Deputy Schoultheis was attempting to push him toward the rear of

the cell away from the open door because he “didn’t know whether

[Williams] was coming toward [him] or not.” (Doc. 74 at 8; Doc.

74-7, Schoultheis Dep. at 138:19–24). However, these arguments are

belied by the video footage.

Defendants have not argued that the underwear could have

injured or did injure anyone. At no point did the underwear block

Deputy Schoultheis’s vision, as they landed on his shoulder and

had been removed from his person entirely by Deputy Slaughter

before he ever made contact with Williams. (See Doc. 76,

Williams,_Cary_disruptive (Slaughter)). Thus, Deputy Schoultheis

could see that Williams was not coming toward him and that Deputy

Slaughter remained directly to his right where he also blocked the

cell door, even if he could not see Deputy Fleckinger behind him.

5 Defendants’ causation arguments are addressed separately below.

Although Williams was unrestrained, he never stepped forward

or attempted to exit the cell and did not make any verbal threats6

or use any threatening gestures, such as clenched fists. That

Williams was completely nude at that point also weighs against

Defendants’ argument that Williams posed a threat because he had

nothing left to throw outside the cell. The undisputed fact that

Williams was intoxicated does not indicate that he posed a threat,

particularly in light of Defendants’ acknowledgement that Williams

had not displayed any physical aggression up to that point. See

Lawler v. City of Taylor, 268 F. App’x 384, 387 (6th Cir. 2008)

(finding that, despite verbal insults and "drunken resistance,” a

reasonable jury could conclude that an officer used excessive force

when he threw an inmate to the floor). As such, a reasonable jury

could find that Williams did not pose a threat to Deputy

Schoultheis’s safety at the time he applied force.

While Defendants argue that an officer cannot be liable when

they had no chance to recognize that a dangerous situation had

become safe or when an alternative response seems more reasonable

only in hindsight, such is not the case here, as a reasonable jury

could conclude that Deputy Schoultheis, whose vision was not

restricted, had the ability to perceive the lack of dangerousness

6 Deputy Schoultheis agrees that Williams’s “fascist” and “Nazi” insults

toward the deputies were not imminent physical threats and that at no

point did Williams make a verbal threat against him. (See Doc. 74-7,

Schoultheis Dep. at 103:14–19).

posed by the situation and therefore could have reacted differently

in that moment.

Defendants correctly argue that the use of force was very

brief, as Deputy Schoultheis only pushed Williams back for a total

of three seconds, that Deputy Schoultheis did not use a chokehold,

vascular restraint, or hypoglossal pressure technique to restrict

Williams’s blood or airflow or cause him to lose consciousness,

and that, although Deputy Schoultheis originally intended to

handcuff Williams, he opted not to after Williams fell and it was

clear that he did not pose a threat. (Doc. 74 at 8–10; Doc. 74-7,

Schoultheis Dep. at 84:8–20). However, it is not clear as a matter

of law that Deputy Schoultheis attempted to limit the amount of

force used because a reasonable jury could conclude that no force

was necessary to resolve the issue or to maintain institutional

order and security because Defendants could have simply shut the

door to the cell where Williams remained, completely nude.

Although Defendants argue that there is no genuine dispute of

material fact as to whether Williams engaged in active resistance,

(Doc. 74 at 8), that argument also fails. Defendants contend that

Williams “defied Slaughter’s instruction to place his underwear in

the property bag,” (Id.), but such an instruction was not captured

on the video. On the contrary, Deputy Slaughter directed Williams

to take his underwear off, which he undisputedly complied with. As

Plaintiff points out, context is crucial, and it is not clear that

Williams’s decision to fling the underwear toward Deputy

Schoultheis instead of merely passing them over constitutes

resistance at all, let alone active resistance, in light of the

fact that Williams complied with Deputy Slaughter’s ultimate

demand to hand over his clothes. Indeed, Deputy Schoultheis

testified that, if someone tossed underwear to him, rather than at

him, he would consider that person to be following his orders.

(Doc. 74-7, Schoultheis Dep. at 137:21–138:4).

“Active resistance typically involves ‘a series of

consciously-resistive acts’ that ‘unfolds in a manner where the

suspect causes the officers to be exposed to volatility, hostility,

and danger in a way that increases with the passage of time, thus

justifying (and often requiring) the use of force.’” Degolia v.

Kenton Cnty., 381 F. Supp. 3d 740, 762 (E.D. Ky. 2019) (quoting

Eldridge v. City of Warren, 533 F. App’x 529, 534–35 (6th Cir.

2013)). Such a “series of consciously-resistive acts” undisputedly

did not take place in this case because Williams complied with the

directive to remove and hand over his clothes and was not given

any additional commands after throwing the underwear.

The Sixth Circuit has also held that “[a]ctive resistance

includes ‘physically struggling with, threatening, or disobeying

officers.’” Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015)

(quoting Cockrell v. City of Cincinnati, 468 F. App’x 491, 495

(6th Cir. 2012)). It is undisputed that Williams did not struggle

with or threaten the deputies and there is a genuine dispute of

material fact as to whether his conduct constitutes disobedience.

Indeed, the cases cited by Defendants in support of their

argument that Deputy Schoultheis used objectively reasonable force

all involve either conscious refusal to obey an officer’s direct

command or clearly threatening conduct, neither of which occurred

in this case. See id. at 642 (finding active resistance where an

individual admittedly told a deputy that he wasn’t going to comply,

swung his arms in the deputy’s direction, and tried to prevent the

deputy from handcuffing him); Hanson v. Madison Cnty. Det. Ctr.,

736 F. App’x 521, 530–31 (6th Cir. 2018) (finding that a shove did

not cross the constitutional line where an inmate slammed items on

a table, verbally refused to obey an officer’s command, and turned

toward an officer with an item in his hand that he had refused to

hand over while yelling); Scott v. Kent Cnty., 679 F. App’x 435,

440–41 (6th Cir. 2017) (affirming summary judgment on the basis of

qualified immunity where the plaintiff engaged in unruly behavior,

exited his cell with clenched fists, and stepped toward an

officer); Bruck v. Petry, No. 5:21-152-DCR, 2022 WL 2109187, at *6

(E.D. Ky. June 10, 2022) (finding that a use of force was

objectively reasonable where the plaintiff posed a threat to his

own safety and the safety of others, was verbally defiant, was

moving unsecured about a scene involving multiple bystanders,

homes, and vehicles, and began to walk away which could have been

perceived as an attempt to flee); Foote v. Degenhardt, No. 2:18-

141-WOB, 2018 WL 6769325, at *1, *4 (E.D. Ky. Dec. 21, 2018)

(finding active resistance where an officer’s incident report

reflected that he only took an inmate to the ground after he

refused a direct order to face away from him and place his hands

above his head so he could be handcuffed and the inmate continued

to move his arms and legs while on the ground).

Although an officer need not “use the best technique in every

circumstance,” they must not violate an inmate’s constitutional

rights by using objectively unreasonable force. See Fultz v.

Whittaker, 261 F. Supp. 2d 767, 775–77 (W.D. Ky. 2003). Because

the evidence viewed in a light most favorable to Williams shows

that Deputy Schoultheis’s use of force broke his arm, he did not

threaten the deputies’ safety, and he was not actively resisting,

a reasonable jury could find that Deputy Schoultheis violated

Williams’s constitutional right to be free from excessive force.

ii. Clearly Established

Under the second prong of the qualified immunity doctrine, a

right is “clearly established” if “[t]he contours of the right

[are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). One method of showing that an

officer violated clearly established law is to “identify a case

that put [the officer] on notice that his specific conduct was

unlawful.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021)

(per curiam). Accordingly, the plaintiff must identify a “case

that addresses facts like the ones at issue here.” Id.

Williams has satisfied this burden by identifying several

cases in which courts have held that individuals who are not

resisting and who pose no threat to others have a clearly

established right to be free from a disproportionate use of force.

See Crawford v. Geiger, 656 F. App’x 190, 204 (6th Cir. 2016)

(denying qualified immunity where an officer shoved the

plaintiff’s chest and caused her to fall backward because “her

right to be free from force while compliant, non-resistant, and

non-violent was clearly established prior to [2012]”); Jennings v.

Fuller, 659 F. App’x 867, 870 (6th Cir. 2016) (finding that a

forceful takedown was not reasonable where there was no “real form

of resistance or danger” when an inmate briefly and non-

threateningly lowered their hand contrary to an instruction);

Lawler, 268 F. App’x at 387 (finding that a deputy’s use of force

was excessive where it was disproportionate to any threat he faced

from an inmate); Fultz, 261 F. Supp. 2d at 775–76 (finding that

“the application of some compression or force to the neck” was not

justified where the plaintiff presented “no active level of

threat”); see also Eldridge, 533 F. App’x at 535 (holding that

there is a clearly established right to be free from the use of

physical force when a suspect is not resisting police efforts to

apprehend him) (collecting cases); Kijowski v. City of Niles, 372

F. App’x 595, 601 (6th Cir. 2010) (“[T]he right to be free from

physical force when one is not resisting the police is a clearly

established right.”) (internal citation and quotation marks

omitted).

Because a reasonable jury could conclude that Williams did

not pose a threat and was not resisting the deputies’ orders, such

a conclusion would also dictate that when Deputy Schoultheis used

force against Williams, he violated Williams’s clearly established

constitutional right.

B. Failure to Intervene

An officer’s “mere presence” during an altercation cannot

suffice to subject them to liability. Burgess, 735 F.3d at 475

(citing Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010).

However, an “officer who fails to act to prevent the use of

excessive force may be held liable when (1) the officer observed

or had reason to know that excessive force would be or was being

used, and (2) the officer had both the opportunity and the means

to prevent the harm from occurring.” Turner v. Scott, 119 F.3d

425, 429 (6th Cir. 1997) (internal citation omitted).

Assuming that Williams has presented evidence from which a

reasonable jury could conclude that Deputies Slaughter and

Fleckinger had reason to know that Deputy Schoultheis’s use of

force was excessive,7 he has failed to show that either had the

opportunity and means to stop Deputy Schoultheis’s actions.

Undisputedly, the use of force lasted for only three seconds and

Williams has failed to demonstrate that such a short period of

time was long enough for anyone to perceive what was going on and

react to stop it. See Pelton v. Perdue, 731 F. App’x 418, 426 (6th

Cir. 2018) (“[T]he Sixth Circuit has repeatedly held that officers

are not liable under failure-to-intervene claims when the

ostensible opportunity and means to intervene does not last long

enough for the officer to both perceive what was going on and

intercede to stop it.”) (internal citations and quotation marks

omitted).

In Burgess, the Sixth Circuit found that a takedown that

lasted no more than ten seconds was not long enough for two other

officers to perceive the incident and intervene. 735 F.3d at 476.

Similarly, in Kowolonek v. Moore, a “rapid sequence of events”

lasting only “minutes” did not provide officers with the

opportunity to intervene and prevent any harm from occurring. 463

F. App’x 531, 539 (6th Cir. 2012). An incident lasting only “six

to seven seconds” was also not long enough to impose a duty to

intervene on officers. Ontha v. Rutherford Cnty., 222 F. App’x

7 Deputy Taylor was not present for that incident and Williams does not

argue that he should be liable for failing to intervene regarding Deputy

Schoultheis’s actions. (See Doc. 88 at 27).

498, 506 (6th Cir. 2007); see also Fultz, 261 F. Supp. 2d at 780

(dismissing a failure to intervene claim where it was undisputed

that “the events happened in a matter of seconds”).

The lone case cited by Williams, Kent v. Oakland County, is

distinguishable, as the officers in that case had been

communicating as the events unfolded and, critically, the officer

who tased the suspect gave a verbal warning that he would do so.

See 810 F.3d 384, 397 (6th Cir. 2016). Here, Deputy Schoultheis

gave no indication, verbal or otherwise, that he was going to use

force before he did so. Thus, Deputies Slaughter and Fleckinger

had no opportunity, other than the three-second-long period while

Deputy Schoultheis was pushing Williams, to process what was

happening and step in. This is insufficient as a matter of law.

Williams’s arguments that the deputies were standing in close

proximity, that Deputy Slaughter reached out and grabbed the

underwear from Deputy Schoultheis’s shoulder, and that Deputy

Slaughter was able to say “Alright” during the incident, (Doc. 88

at 28), similarly fail because none of these facts indicate that

either Deputy Slaughter or Deputy Fleckinger had any reason to

anticipate what Deputy Schoultheis was going to do or that it would

result in Williams falling on the floor. See Burgess, 735 F.3d at

476 (affirming dismissal of a failure to intervene claim where the

defendants “had no reason to anticipate the takedown or its

result”). Indeed, by the time Deputy Slaughter reached Williams

and Deputy Schoultheis inside the cell at 11:43:47 p.m., three

seconds after the initial contact was made, Deputy Schoultheis had

removed his hand from Williams’s neck. (Doc. 76,

Williams,_Cary_disruptive (Slaughter)). Deputy Fleckinger, who was

standing at least a few feet behind the other deputies, necessarily

could not have caught up to Deputy Schoultheis any faster than

Deputy Slaughter did. (See id. Williams C 16_T1).

Because there is no evidence from which a reasonable jury

could conclude that Deputies Slaughter and Fleckinger had time to

perceive Deputy Schoultheis’s use of force and intercede to stop

it, Williams’s failure to intervene claim fails as a matter of

law.

C. Deliberate Indifference to a Serious Medical Need

A pretrial detainee, like Williams, must satisfy two elements

for a claim based on deliberate indifference to a medical need

under the Fourteenth Amendment: (1) he had a sufficiently serious

medical need and (2) each defendant acted deliberately, not

accidentally, and recklessly in the face of an unjustifiably high

risk of harm that is either known or so obvious that it should be

known. See Helphenstine v. Lewis Cnty., --- F.4th ---, No. 22-

5407, 2023 WL 1859890, at *5–6 (6th Cir. Feb. 9, 2023) (citing

Brawner v. Scott Cnty., 14 F.4th 585, 596 (6th Cir. 2021)).8

8 Although the Sixth Circuit issued its opinion in Helphenstine after

this matter was fully briefed, the parties sufficiently addressed the

Williams’s broken arm, which Defendants do not dispute he had

during his incarceration at KCDC, satisfies the first element, as

it was a sufficiently serious medical need. See Durham v. Nu’Man,

97 F.3d 862, 869 (6th Cir. 1996) (finding that a broken arm was

“clearly a ‘serious medical need’”).

i. Deputies Schoultheis, Slaughter, and Fleckinger9

Williams has failed to establish the second element as to

Deputies Schoultheis, Slaughter, Fleckinger because he has not

introduced evidence that they knew or should have known that

Williams had a serious medical need or that any medical needs he

did have subjected him to an unjustifiably high risk of harm. At

no point during the video footage of the use of force incident can

Williams be heard to complain of pain, even by merely saying

“ouch,” or be seen to exhibit any visible symptoms of a broken

arm, such as swelling or a deformity. (See Doc. 76,

Williams,_Cary_disruptive (Slaughter)). Indeed, Williams

testified that he did not experience pain or see swelling in his

arm until he was woken up for his “diabetic check” several hours

after the incident. (Doc. 87-3, Williams. Aff. ¶¶ 21–22). Williams

does not allege that he had any contact with Deputies Schoultheis,

underlying facts such that the Court can apply the Brawner test without

further input.

9 Williams contends that Defendants have not argued that the deliberate

indifference claims against Deputies Schoultheis and Slaughter should

be dismissed, (Doc. 88 at 29), but that ignores Defendants’ claim that

Williams has not met “his burden to show that any deputies’ conduct was

deliberately indifferent . . . .” (See Doc. 74 at 17) (emphasis added).

Slaughter, or Fleckinger after he became aware of his arm injury

and, thus, he necessarily could not have reported such symptoms to

any of them.

Although an officer may be held liable despite a lack of

subjective awareness of risks to the detainee, the situation must

be such that a reasonable officer in their position would know of

the risks. See Brawner, 14 F.4th at 596–97 (collecting cases). An

officer does not act with deliberate indifference, where, as here,

they had no reason to appreciate the seriousness of the plaintiff’s

condition. See Helphenstine, 2023 WL 1859890, at *10 (citing Speers

v. Cnty. of Berrien, 196 F. App’x 390, 396 (6th Cir. 2006)). That

each deputy was aware that force had been used against Williams

does not mean that they should have automatically also been aware

that he was subjected to an unjustifiably high risk of harm,

particularly in light of the fact that Williams himself did not

even realize he had been injured until several hours later.

Williams has not cited case law for his proposition that a

deputy’s failure to ask an inmate whether they are injured or

contact medical services after a use of force equates to

deliberately ignoring a serious medical need even where no signs

of an injury are present and the inmate has not complained of an

injury. (See Doc. 88 at 30–31, 33–34). Although Deputy Fleckinger

testified that typically, inmates at KCDC would “at least be given

the opportunity to be seen by medical staff” after a use of force,

(Doc. 74-14, Fleckinger Dep. at 71:4–72:2), failure to follow an

internal custom does not give rise to a deliberate indifference

claim. See Helphenstine, 2023 WL 1859890, at *10 (citing Griffith

v. Franklin Cnty., 975 F.3d 554, 578 (6th Cir. 2020)). Neither can

Williams’s claim be supported by the fact that Deputies Slaughter

and Fleckinger failed to create reports regarding the use of force,

in light of the fact that Deputy Schoultheis did. (See Doc. 88 at

30–31, 33–34).

Accordingly, Williams’s deliberate indifference claim against

Deputies Schoultheis, Slaughter, and Fleckinger fails.

ii. Deputy Taylor

Unlike the other deputies, Deputy Taylor was present when

Williams complained of arm pain during his assessment with Nurse

Miller.10 (Doc. 74 at 5; Doc. 87-3, Williams Aff. ¶¶ 22–23).

However, the Sixth Circuit has “recognized that a ‘non-medically

trained officer does not act with deliberate indifference to an

inmate’s medical needs when he ‘reasonably deferred to the medical

professionals’ opinions.’” Greene v. Crawford Cnty., 22 F.4th 593,

10 Although Deputy Taylor testified that he does not recall Williams

saying his arm was injured, (see Doc. 74-9, Taylor Dep. at 146:12–

147:10), Defendants admit in their Motion that Williams “complained of

arm pain” during his visit with Nurse Miller. (Doc. 74 at 5).

Nonetheless, the Court must draw all factual inferences in favor of

Williams while analyzing Defendants’ Motion for Summary Judgment and

must resolve the factual dispute in favor of Williams’s testimony that

he told Deputy Taylor and Nurse Miller, “I think you guys broke my arm.”

(See Doc. 87-3, Williams Aff. ¶ 23).

608 (6th Cir. 2022) (quoting McGaw v. Sevier Cnty., 715 F. App’x

495, 498 (6th Cir. 2017)).

Here, Deputy Taylor, who was not medically trained,

reasonably deferred to the opinion of Nurse Miller, a medical

professional, when she determined that, despite Williams’s

complaints, his mobility was not restricted and his symptoms did

not “suggest[] the need for immediate emergency medical referral.”

(See Doc. 74-8 at 1).11 Although Deputy Taylor testified that he

did not remember Williams stating that he was hurt or that he

needed medical attention and that there was nothing about

Williams’s arm that stood out to him as requiring medical

treatment, he testified that, if Williams had raised an issue, he

would have relied on Nurse Miller to “check[] him out” and

“address[] it then.” (Doc. 74-9, Taylor Dep. at 136:24–137:4,

137:17–22).

Where an inmate’s medical condition and need for treatment is

not obvious to trained medical personnel, it would not be obvious

11 Williams cites Greene, 22 F.4th at 608, for the proposition that a

deputy must ask for and follow the advice of a medical professional in

order to avoid liability for deliberate indifference and argues that

because Deputy Taylor has not alleged that he sought Nurse Miller’s

advice, he cannot rely on her judgment. (Doc. 88 at 32). However, this

argument misinterprets Greene, as the issue in that case was whether the

person who issued a judgment was a medical professional, not whether the

deputies could rely on medical opinions that were given without formal

solicitation by a jail official. See 22 F.4th at 608. It is undisputed

that Nurse Miller is a medical professional and that she and Deputy

Taylor were informed of Williams’s pain simultaneously. Thus, the fact

that he did not ask for her opinion before she gave it is not dispositive.

to a lay officer either. See Spears v. Ruth, 589 F.3d 249, 255

(6th Cir. 2009). Because Williams’s need for treatment was not

obvious to Nurse Miller, Williams has failed to establish that it

should have been obvious to Deputy Taylor. Neither has Williams

introduced evidence from which a reasonable jury could conclude

that Williams’s circumstances changed in the hours following Nurse

Miller’s visit such that his medical need should have become

obvious to Deputy Taylor later. Thus, Williams has failed to show

that Deputy Taylor was or should have been aware of an

unjustifiably high risk of harm arising out of his failure to

secure medical treatment for Williams and that he deliberately

acted in spite of such risk.

The Court finds that Deputy Taylor is also entitled to

judgment as a matter of law on Williams’s deliberate indifference

claim.

D. County Liability

Williams has claimed that Kenton County is liable for alleged

violations of his constitutional rights in addition to bringing

claims against Deputies Schoultheis, Slaughter, Fleckinger, and

Taylor in their official capacities. Because “[s]uing a government

employee in his official capacity ‘generally represent[s] only

another way of pleading an action against an entity of which the

officer is an agent,’” the Court will dismiss the official capacity

claims against each deputy, as those claims are duplicative of the

claims against Kenton County. See Barr v. Jefferson Cnty. Bd. of

Educ., 686 F. Supp. 2d 699, 704 (W.D. Ky. 2010) (quoting Kentucky

v. Graham, 473 U.S. 159, 165–66 (1985)) (finding that in the

Eastern and Western Districts of Kentucky courts have “adopted the

practical approach” of dismissing official capacity claims where

the local government entity is also a named defendant).

Congress only intended for counties to be liable when “action

pursuant to official municipal policy of some nature caused a

constitutional tort.” Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978). To show such a policy, the plaintiff “must

point to a municipal ‘policy or custom’ and show that it was the

‘moving force’ behind the constitutional violation.” Crabbs v.

Scott, 800 F. App’x 332, 336 (6th Cir. 2020) (quoting id. at 694).

Thus, a plaintiff must do three things to succeed on a Monell

claim: (1) identify a policy; (2) connect the policy to the

municipality; (2) and show that his injury was caused by the

execution of that policy. Jackson v. City of Cleveland, 925 F.3d

793, 829 (6th Cir. 2019) (citing Garner v. Memphis Police Dep’t,

8 F.3d 358, 364 (6th Cir. 1993)).

However, where “there is no constitutional violation, there

can be no municipal liability.” Cleary v. Cnty. of Macomb, 409 F.

App’x 890, 906 (6th Cir. 2011). Accordingly, because the only

constitutional violation that Williams has sufficiently alleged is

Deputy Schoultheis’s excessive use of force, the Court need only

assess Kenton County’s liability with respect to that claim.12

There are four methods of satisfying the first prong of Monell

and identifying a municipality’s policy or custom: “the plaintiff

may prove ‘(1) the existence of an illegal official policy or

legislative enactment; (2) that an official with final decision

making authority ratified illegal actions; (3) the existence of a

policy of inadequate training or supervision; or (4) the existence

of a custom of tolerance or acquiescence of federal rights

violations.’” Jackson, 925 F.3d at 828 (quoting Burgess, 735 F.3d

at 478).

In order to comply with the first method and illustrate that

a municipality has an illegal policy, “the plaintiff must show

that there were ‘formal rules or understandings—often but not

always committed to writing—that [were] intended to, and [did],

establish fixed plans of action to be followed under similar

circumstances consistently and over time.’” Id. at 829 (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986)). Where

policies are not written, they must be “‘so permanent and well

12 Although Williams cites Garner, 8 F.3d at 365, for its holding that a

municipality may still be liable for a § 1983 violation even if the

officer who committed the violation is entitled to qualified immunity,

(Doc. 88 at 35), that argument is inapplicable here, as Williams’s

failure to intervene and deliberate indifference claims do not fail on

qualified immunity grounds, but rather because Williams has not shown

that any Defendant committed those constitutional violations. Thus,

Kenton County cannot be liable for failure to intervene or deliberate

indifference to Williams’s medical needs either.

settled as to constitute a custom or usage with the force of law.’”

Wright v. City of Euclid, Ohio, 962 F.3d 852, 880 (6th Cir. 2020)

(quoting Monell, 436 U.S. at 691).

Williams argues that Kenton County has an unwritten official

policy permitting deputies to use gratuitous and excessive force

in the form of “reflex reactions” or “instant reactions” which can

be performed without assessing the threat posed by an individual

at the time the force is used. (Doc. 88 at 36). As evidence of

this policy, Williams points to the testimony of Captain Trey Smith

(“Captain Smith”), Kenton County’s Rule 30(b)(6) representative,

Lieutenant Michael Carman (“Lieutenant Carman”), the KCDC Use of

Force training instructor, and Sergeant Alexander Kelly (“Sergeant

Kelly”), Deputy Schoultheis’s supervisor.

Captain Smith testified that “throwing soft objects that

[would] not cause harm to [a] deputy,” including clothing, whether

soiled or unsoiled, is considered “active aggression” under KCDC

policy. (Doc. 84, Smith Dep. at 115:16–23). This is the “second to

highest level of resistance that a prisoner can engage in” and

imposes on deputies “the duty to utilize hard, empty hand control

and intermediate weapons.” (Id. at 116:25–117:3, 157:5–15; see

also Doc. 74-12, KCDC Policy 3.1.8 at 21–22). This duty to act is

imposed regardless of whether the fighting act is ongoing and there

is “no obligation by the officer prior to responding with the use

of force to assess after the first strike whether the fight is

ongoing.” (Doc. 84, Smith Dep. at 121:4–8, 121:18–22). Sergeant

Kelly similarly testified that, under KCDC policy, when a prisoner

throws clothing, a deputy is permitted to respond with hard empty

hand control or use an intermediate weapon, such as a baton. (Doc.

85, Kelly Dep. at 27:11–18, 28:10–21). KCDC Policy 3.1.8 defines

hard empty hand control as “[t]echniques that involve striking to

include but not limited to punching, kicking, knee strikes, etc.”

(Doc. 74-12 at 19).

Lieutenant Carman testified that deputies may respond in a

“reactionary” way after clothing is thrown at them, including by

punching, striking, or kicking the inmate or by using an impact

weapon like a baton. (Doc. 74-11, Carman Dep. at 60:18–61:8, 62:2–

11). Lieutenant Carman noted that, for example, if an inmate threw

a sock at a deputy, Kenton County policy permits the deputy to

respond by punching, kicking, or striking the inmate with an impact

weapon. (Id. at 62:12–63:2).

This testimony is evidence from which a reasonable jury could

find that Kenton County had an unwritten official policy to permit

deputies to use gratuitous or excessive force whenever an inmate

throws any object, without assessing whether there is a safety

threat or whether force is necessary to achieve institutional

goals. The fact that three employees of Kenton County, each of

whom hold a supervisory and/or training position, testified to the

same unwritten understanding of the written policy is sufficient

to connect the policy to the County and to allow a reasonable jury

to conclude that their interpretation is so well settled as to

constitute a custom or usage with the force of law. Further, no

witness has testified to a contrary interpretation of the policy.

Williams has also introduced evidence from which a reasonable

jury could find that this policy was the “moving force” that caused

a violation of his constitutional rights. Although Deputy

Schoultheis used less force than he was permitted to under the

policy, as he did not punch, kick, or strike Williams, Williams

has persuasively argued that Deputy Schoultheis used excessive

force against him without assessing whether he posed a threat or

whether the force was necessary to resolve the issue and that, in

doing so, Deputy Schoultheis complied with his “duty” to respond

to Williams’s thrown underwear under Kenton County policy.13

Accordingly, Kenton County is not entitled to summary

judgment on Williams’s Monell claim for excessive use of force.14

13 Defendants’ citation of Thomas v. City of Chattanooga, 398 F.3d 426,

429 (6th Cir. 2005), for the proposition that Williams must show evidence

of a clear and persistent pattern of unconstitutional activity or tacit

approval of it, (Doc. 90 at 7), is misplaced, as those elements pertain

to evidence submitted in support of the fourth method of identifying a

policy, demonstrating the existence of a custom of tolerating federal

rights violations, and Williams has not attempted to use that method to

meet his burden.

14 Because the Court finds that Williams has introduced evidence

sufficient to satisfy the first method of identifying a policy or custom,

it need not address the parties’ arguments regarding the second method,

ratification, or the third method, inadequate training or supervision.

E. Causation

Under Kentucky law,15 “a plaintiff ordinarily must present

expert medical testimony to establish the causal link between an

accident and his injuries.” Roark v. Speedway, LLC, No. 13-139-

ART, 2015 WL 12978822, at *1 (E.D. Ky. Apr. 6, 2015) (citing Jarboe

v. Harting, 397 S.W.2d 775, 778 (Ky. 1965)). However, there is an

exception to this rule and the issue of causation may “go to the

jury without expert testimony only in cases where causation ‘is so

apparent that laymen with general knowledge will have no difficulty

in recognizing it.’” Id. (quoting Jarboe, 397 S.W.2d at 778).16

Defendants argue that Williams cannot demonstrate causation

as to his fractured ulna under this standard because he has not

offered expert testimony on that point. (Doc. 74 at 18–20).

However, this argument fails because Williams’s broken arm

qualifies under the exception to Kentucky’s rule requiring expert

15 Defendants argue that Kentucky’s medical causation requirement applies

to the federal and state law claims in this case, (Doc. 74 at 18), and

that proposition is not contested by Williams. Accordingly, the Court

assumes it applies to Williams’s § 1983 claim in addition to his state

law claims. See Estep v. Combs, 467 F. Supp. 3d 476, 496 n.20 (E.D. Ky.

2020) (applying Kentucky’s medical causation requirement to a § 1983

claim).

16 Defendants argue that “fact witness testimony will not be able to

demonstrate to a lay jury that causation is probable and not merely

possible,” (Doc. 74 at 19), but that standard only applies to expert

medical testimony, not fact testimony under the exception when causation

is apparent to laypeople. See Jarboe, 397 S.W.2d at 778 (“There may, of

course, be situations in which causation is so apparent that laymen with

a general knowledge would have no difficulty in recognizing it. But

excepting those situations we have adhered to the rule that the causal

connection between an accident and an injury must be shown by medical

testimony and the testimony must be that the causation is probable and

not merely possible.”) (internal citations omitted).

medical testimony, as laypeople with general knowledge can view

the evidence and will have no difficulty in understanding the

mechanism of Williams’s injury. Thus, Williams need not introduce

expert testimony to survive summary judgment on the issue of

causation.

In Tatham v. Palmer, the Kentucky Supreme Court concluded

that the causation question could go to the jury where the

plaintiff hit his head on the windshield during a car accident and

then suffered headaches and nervousness, neither of which were

present before the accident, because “it is within the realm of

common knowledge that a severe blow to the head will cause

headaches.” 439 S.W.2d 938, 938–40 (Ky. 1969). Further, in Roark,

a court in this District held that a plaintiff did not have to

present expert medical testimony to establish causation between an

electrical shock and a burn because, that too was “within the realm

of common knowledge.” 2015 WL 12978822, at *2 (citing id. at 939).

However, that court also held that there was no obvious connection

between a fall and a seizure a few months later or between a fall

and back, shoulder, and wrist injuries where the plaintiff had

similar previous accidents. Id. In Estep, another court in this

District held that a plaintiff’s claim that he sustained bruising

and a wound on his wrist from handcuffs did not require expert

testimony and the defendant’s “speculation regarding other

potential sources for the damage” did not mean that he was entitled

to summary judgment on causation under Kentucky law. 467 F. Supp.

3d at 495–96.

Just as with the headaches in Tatham and the burn in Roark,

the causal relationship between a fall and a broken arm is “within

the realm of common knowledge.” A broken arm, unlike the seizure

in Roark, is not a complicated medical diagnosis and is certainly

one for which lay jurors are capable of determining causation.

Further, Defendants’ argument that Williams fell backwards

while handcuffed less than two hours before Deputy Schoultheis’s

use of force, (Doc. 74 at 19), is plainly contradicted by the

bodycam footage of that fall, which depicts him falling forward

onto his knees and does not show his right arm making contact with

the ground or any other object. (See Doc. 76, Cov. BWC). Contrary

to Defendants’ position, the mechanisms of possible injury are not

identical because Williams did not fall “backwards with an

outstretched arm against a hard surface” during his arrest, which

would certainly have been difficult, if not impossible, to do while

his hands were handcuffed behind his back. (See Doc. 74 at 19).

Thus, that fall was not “just as likely to have caused the

fracture.” (See id.).

Similarly, Defendants have not pointed to any evidence to

support their claim that Williams was “involved in a physical

altercation outside Rosie’s Tavern,” (Doc. 90 at 9), and Williams’s

testimony reflects that the exchange that precipitated the 911

call “was all verbal” and there was no physical altercation prior

to his arrest, (Doc. 74-1, Williams Dep. at 61:10–21).

Defendants’ mere speculation as to other potential causes for

Williams’s injury does not entitle them to summary judgment on

causation, particularly when that speculation is not supported by

any evidence in the record. See Estep, 467 F. Supp. 3d at 496.

Unlike in Roark, where there was undisputed evidence of prior

injury to the plaintiff’s back, shoulders, and wrists, Defendants

have failed to identify evidence of a “history of accidents” that

could explain Williams’s fractured arm. See 2015 WL 12978822, at

*2. Indeed, just as with the burn in that case, Defendants here

have introduced no other viable explanation for Williams’s injury.

See id. Just as in Tatham, here, Williams testified that his arm

was not injured before Deputy Schoultheis’s use of force. (Doc.

87-3, Williams Dep. at ¶¶ 3, 18). That Williams did not make an

expression of pain or claim injury immediately after he fell at

KCDC does not establish that the fall did not cause his injury,

particularly in light of the fact that Defendants do not argue

that Williams broke his arm at any point after that fall.

Reasonable jurors could use their common knowledge to

conclude that Deputy Schoultheis’s use of force caused Williams’s

broken arm, even without expert testimony. Accordingly,

Defendants’ Motion for Summary Judgment with respect to causation

will be denied.17

F. State Law Claims

Defendants also argue that Williams’s state law claims, for

assault and battery against Deputy Schoultheis and for negligence

against all four deputies, fail because they are entitled to

qualified official immunity under Kentucky law and because both

claims are time-barred. (Doc. 74 at 20–24). Each argument is

addressed below.

i. Qualified Official Immunity

Under Kentucky law, “[w]hen a public officer or employee is

sued in his or her individual capacity, that officer or employee

may enjoy qualified official immunity ‘which affords protection

from damages liability for good faith judgment calls made in a

legally uncertain environment.’” Ritchie v. Turner, 559 S.W.3d

822, 831 (Ky. 2018) (quoting Yanero v. Davis, 65 S.W.3d 510, 522

(Ky. 2001)). “Qualified official immunity applies to the negligent

performance by a public officer or employee of (1) discretionary

acts or functions . . . ; (2) in good faith; and (3) within the

scope of the employee’s authority.” Yanero, 65 S.W.3d at 522.

17 Because the Court finds that Plaintiff’s injury falls under the

exception to the rule requiring expert medical testimony, it declines

to address the parties’ arguments regarding the potential exclusion of

any testimony from the physicians who treated Plaintiff’s injury in the

context of Defendants’ Motion for Summary Judgment.

Deputy Schoultheis is not entitled to qualified official

immunity for Williams’s assault and battery claim against him.

Even assuming that Deputy Schoultheis was engaging in a

discretionary act within the scope of his authority when he decided

how much force he should use against Williams, see Scherzinger v.

Bolton, No. 3:11-CV-11-H, 2013 WL 3166163, at *9 (W.D. Ky. June

20, 2013) (finding that “the decision to administer force in an

effort to maintain order and control in [a correctional] facility

is a discretionary act”), Williams has introduced evidence from

which a reasonable jury could conclude that Deputy Schoultheis was

acting in bad faith.

Bad faith “can be predicated on a violation of a

constitutional, statutory, or other clearly established right

which a person in the public employee’s position presumptively

would have known was afforded to a person in the plaintiff’s

position, i.e., objective unreasonableness; or if the officer or

employee willfully or maliciously intended to harm the plaintiff

or acted with a corrupt motive.” Yanero, 65 S.W.3d at 523. Because

the Court concludes, as discussed above, that a reasonable jury

could find that Deputy Schoultheis violated Williams’s clearly

established Fourteenth Amendment right to be free from excessive

force, such a finding would equate to a finding of bad faith for

state law immunity purposes. See Browning v. Edmonson Cnty., Ky.,

18 F.4th 516, 530–31 (6th Cir. 2021) (finding that where a

defendant used excessive and objectively unreasonable force in

violation of the plaintiff’s clearly established constitutional

rights, the defendant did not act in good faith and was thus not

entitled to qualified official immunity under Kentucky law); Mills

v. Owsley County Ky., 483 F. Supp. 3d 435, 476–77 (E.D Ky. 2020)

(finding that allegations that a defendant used excessive and

unreasonable force equated to allegations of bad faith under

Kentucky qualified official immunity law).

However, Williams’s negligence claim against all four

deputies fares differently. Although it is difficult to determine

from the vague allegations in the Second Amended Complaint which

of Defendants’ actions Williams is asserting constituted

violations of their duty of reasonable care, (see Doc. 36 ¶¶ 48–

49), Williams only raises arguments regarding their failure to

notify medical staff of Williams’s need for medical attention in

his Response to Defendants’ Motion for Summary Judgment. (Doc. 88

at 45–46).18 Williams does not dispute that the third element of

qualified official immunity is satisfied because decisions

regarding whether to secure medical care for inmates are within

the scope of each deputy’s authority.

18 Williams’s negligence claim under Kentucky law cannot be based on the

same conduct that forms the basis of his excessive force and battery

claims. See Hart ex rel. Dillon v. Lawson, No. 6:20-147-JMH, 2021 WL

3713052, at *3 (E.D. Ky. Aug. 19, 2021) (collecting cases).

“Discretionary acts or functions are ‘those involving the

exercise of discretion and judgment, or personal deliberation,

decision, and judgment . . . .’” Rowan Cnty. v. Sloas, 201 S.W.3d

469, 477 (Ky. 2006) (quoting Yanero, 65 S.W.3d at 522). On the

other hand, ministerial acts “are those that require ‘only

obedience to the orders of others, or when the officer’s duty is

absolute, certain, and imperative, involving merely execution of

a specific act arising from fixed and designated facts.’” Haney v.

Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (quoting Yanero, 65 S.W.3d

at 522).

The decision of Deputies Schoultheis, Slaughter, and

Fleckinger not to contact medical staff after Deputy Schoultheis’s

use of force required their judgment as to whether Williams needed

medical care and, thus, was discretionary. See Noble v. Three Forks

Reg’l Jail Auth., 995 F. Supp. 2d 736, 744 (E.D. Ky. 2014) (finding

that the decision to provide medicine to an inmate was

discretionary). Further, there is no evidence that any statute,

policy, or order required the deputies to contact medical staff,

where, as here, there were no signs of an injury and Williams did

not complain of an injury. See Pelfrey v. Hughes, No. 2021-CA-

0741-MR, 2022 WL 15526542, at *2 (Ky. Ct. App. Oct. 28, 2022)

(finding that jail employees’ decision not to contact medical staff

was discretionary where the plaintiff had not alleged that there

was a jail policy or law mandating they do so).

Further, Deputy Taylor’s decision not to override Nurse

Miller’s assessment that Williams did not require emergency

medical treatment was also discretionary. See Walker v. S. Health

Partners, 576 F. Supp. 3d 516, 550 (E.D. Ky. 2021) (citing Medley

v. Shelby Cnty., 742 F. App’x 958, 961 (6th Cir. 2018)) (holding

that deputies’ decision not to “second-guess[]” the decisions of

medical staff and call an ambulance was discretionary). As

discussed above, contrary to Williams’s argument, it is immaterial

that Deputy Taylor did not solicit Nurse Miller’s medical opinion

before she offered it, particularly given that he was informed of

William’s arm pain at the same time she was.

Because Defendants have established that they acted within

the scope of their discretionary authority with respect to seeking

medical treatment for Williams, Williams must establish that their

actions were not performed in good faith. See Yanero, 65 S.W.3d at

523 (internal citations omitted). He has failed to meet this

burden. As discussed above, Williams has not shown that Defendants

violated any constitutional right by failing to contact medical

staff and he has not alleged that Defendants violated any of his

statutory rights. Neither has Williams introduced evidence from

which a reasonable jury could conclude that any deputy willfully

or maliciously intended to harm him or acted with a corrupt motive.

Accordingly, each Defendant is entitled to qualified official

immunity from Williams’s negligence claim.

ii. Statute of Limitations

“Kentucky courts have consistently held that whatever statute

of limitations applies, it is not tolled until summons is issued.”

Wm. H. McGee & Co. v. Liebherr Am., Inc., 789 F. Supp. 861, 866

n.1 (E.D. Ky. 1992) (citing Brock v. Turner Fuel Co., 178 S.W.2d

427, 429 (Ky. 1944); Simpson v. Antrobus, 86 S.W.2d 544, 545–46

(Ky. 1935); Whittinghill v. Smith, 562 S.W.2d 649, 650 (Ky. Ct.

App. 1977)). However, the statute of limitations is an affirmative

defense that may be waived. Postal Enterprizes, LLC v. Salas

Enters. Corp., No. 2009-CA-000488-MR, 2009 WL 4723242, at *3 (Ky.

Ct. App. Dec. 11, 2009) (citing Thompson v. Ward, 409 S.W.2d 807,

808–09 (Ky. 1966); Commonwealth Dep’t of Highways v. Chinn, 350

S.W.2d 622, 623 (Ky. 1961)).

In support of their Motion for Summary Judgment, Defendants

renew the argument that they originally made in their Motion for

Partial Judgment on the Pleadings: because it is undisputed that

no summonses have issued to any of them in this case, the statute

of limitations was never tolled on either of Williams’s state law

claims and each has thus expired during the pendency of this

litigation. (Doc. 38 at 1–3; Doc. 74 at 20–21). Because the Court

concludes that Defendants are entitled to qualified official

immunity from Williams’s negligence claim, the Court need only

decide whether his assault and battery claim against Deputy

Schoultheis is barred by the statute of limitations.

Deputy Schoultheis cannot succeed on his statute of

limitations argument because he executed a “WAIVER OF THE SERVICE

OF SUMMONS” in which he “waive[d] any objections to the absence of

a summons or of service.” (Doc. 8 at 2). He cannot now claim that

he only waived service of summons, not the issuance of summons, in

light of the waiver’s clear language barring future objections to

“the absence of a summons.” (See id.) (emphasis added).

Indeed, each case cited by Defendants in support of their

argument is factually inapposite. See Eades v. Clark Distrib. Co.,

70 F.3d 441, 443–44 (6th Cir. 1995) (finding that Federal Rules of

Civil Procedure 3 and 4 do not conflict with state law on the

tolling of statutes of limitation, but not opining on whether a

party could voluntarily waive a state statute of limitations

defense); Corporex Companies, LLC v. Proskauer Rose, LLP, 713 F.

Supp. 2d 678, 688 (E.D. Ky. 2010) (holding that mailing a request

to waive service did not commence an action under Kentucky law but

declining to address whether return of the executed waiver would

suffice to commence the action); Liebherr, 789 F. Supp. at 862

(finding that the summons was issued after the statute of

limitations had expired).

Accordingly, Deputy Schoultheis has waived any defense that

the statute of limitations for the assault and battery claim was

not tolled because a summons did not issue. Thus, the Court finds

that Williams’s claim is timely.19

G. Plaintiff’s Motion to Exclude or Limit the Testimony of

Defendants’ Expert

Finally, Williams has moved to exclude or limit the testimony

of Defendants’ expert, Michael Bosse (“Bosse”), because Bosse has

failed to indicate that he used reliable principles and methods to

draw his conclusions, he offers inadmissible legal conclusions,

and his testimony is likely to be unhelpful to the jury. (Doc. 79

at 1). In response, Defendants assert that Williams’s Motion is

moot because they did not rely on any of Bosse’s opinions in

support of their Motion for Summary Judgment and, if the matter

proceeds to trial, “Bosse will not be an expert witness for any

Defendant.” (Doc. 82 at 1). Based on this representation, the Court

will deny Williams’s Motion to Exclude or Limit Bosse’s Testimony

as moot. However, Defendants may not later choose to void this

commitment and are thus precluded from introducing Bosse’s

opinions during future proceedings in this matter.

Conclusion

Therefore, for the reasons stated above, IT IS ORDERED that:

19 The Court need not address the parties’ equitable estoppel arguments

in light of Deputy Schoultheis’s clear waiver of arguments based on the

absence of a summons.

(1) Defendants’ Motion for Summary Judgment (Doc. 74) be, and

is hereby, GRANTED IN PART and DENIED IN PART consistent with this

opinion;

(2) Plaintiff’s Motion to Exclude or Limit the Testimony of

Defendants’ Expert (Doc. 79) be, and is hereby, DENIED AS MOOT,

but Defendants are precluded from offering Bosse’s opinions in

future proceedings in this matter;

(3) Plaintiff’s Motion to Strike Arguments Raised in

Defendants’ Reply (Doc. 92) be, and is hereby, DENIED;

(4) Plaintiff’s Alternative Motion for Leave to File a Sur-

Reply Instanter (Doc. 92) be, and is hereby, GRANTED and

Plaintiff’s Sur-Reply (Doc. 92-1) is deemed filed concurrently

herewith; and

(5) Defendants Leonard Slaughter, Cory Fleckinger, and Nick

Taylor be, and are hereby, DISMISSED from this matter.

This 16th day of February 2023.

MER _ Signed By:

OS Fy William O. Bertelsman WOR

“Ga —_ United States District Judge

43