by David M. Reutter

On March 24, 2022, the U.S. Court of Appeals for the Sixth Circuit joined a short list of federal appellate courts so far to say that additional protections provided to pre-trial detainees by the U.S. Supreme Court (SCOTUS) in cases alleging excessive force also extend to claims of deliberate indifference to a serious risk of harm.

At issue is the SCOTUS opinion in Kingsley v. Hendrickson, 576 U.S. 389 (2015), which held a pretrial detainee need prove only that he was subjected to a use of force that was objectively excessive, without having to prove that jail officials also had subjective knowledge it would be excessive as used against a particular detainee in a particular instance.

The Sixth Circuit said that this same test applies in a pretrial detainee’s failure-to-protect claim, holding that if an objective determination is made of a substantial risk of harm, it is sufficient to overcome a jailer’s qualified immunity (QI) defense without also making a subjective determination that he was aware of a risk specific to the detainee.

The case was brought by Bretton Westmoreland, who was booked into Kentucky’s Butler County Jail (BCJ) on May 27, 2018, after his arrest on a bench warrant for failure to appear. At intake, he informed jail officials that another detainee, Jerry St. Clair, posed a threat of retaliatory violence, since St. Clair believed Westmoreland was a government informant providing testimony against him. Westmoreland requested they be separated, and jail officials documented the request and assigned separate housing.

About a week later, Westmoreland called his mother, Tanya Arnold Sublett, to say St. Clair was advising other detainees that Westmoreland “told on him.” The next day, St. Clair was allowed to mop outside Westmoreland’s cell, where he called Westmoreland a “rat” to his cellmates, who then became “rowdied up,” according to the complaint later filed.

Westmoreland conveyed this to Sublett, who called BCJ and spoke with Coordinator Tara McMillin about her concerns for her son’s safety. McMillan in turn completed an incident report and informed jailer Rocky Tyree, who claimed he’d spoken to Westmoreland 15 minutes before the call and that the detainee didn’t want to be moved out of the cell—an account Westmoreland later denied.

But first, on June 4, 2018, Westmoreland again called Sublett, who assured him Tyree would “take care of everything.” Around 6:00 p.m., Westmoreland asked to be moved, but that request was denied. Sometime after midnight, a cellmate struck Westmoreland, knocking him unconscious. He was taken to a hospital and underwent two surgeries for a broken jaw.

With the aid of attorneys Camille A. Bathurst and Gregory A. Belzley of Belzley, Bathurst and Bentley in Prospect, as well as Gary S. Logsdon of Brownsville, Westmoreland filed suit in federal court for the Western District of Kentucky, accusing BCJ and its officials of failing to protect him in violation of the Eighth and Fourteenth Amendments.

At the summary judgement stage, only claims against Tyree and BCJ were still pending. The district court then granted their motion for summary judgment, reasoning that BCJ could not be liable unless Tyree was, and that he was entitled to QI because Sublett’s call expressed only generalized concerns for Westmoreland and did not identify a threat from St. Clair.

Sixth Circuit Adopts Four-Part
Test for “Reckless Disregard”

Westmoreland appealed, arguing under Kingsley that the district court erred in relying on a subjective component to determine that Tyree was protected by QI from the deliberate indifference claim. The Sixth Circuit agreed.

First, the Court noted that sister circuits had split on the question, with the Second, Seventh and Ninth Circuits holding that “Kingsley required modification of the subjective component” for deliberate indifference claims, while the Fifth, Eighth, Tenth and Eleventh Circuits have retained it.

But since the district court’s ruling in February 2021, the Court had weighed in on the question in Brawner v. Scott Cty. in September 2021, holding that the subjective prong of the deliberate indifference test laid out by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994), doesn’t apply to pretrial detainees. [See: PLN, Mar. 2022, p.52.]

In that case, though, the Court had extended Kinglsey’s protections to QI claims made by government entities accused of failure to protect, not individual defendants like Tyree. However, the Court had done so in cases where a plaintiff lodged accusations of deliberate indifference to a serious medical need, most recently in Greene v. Crawford Cty. [See: PLN, July 2022, p.20.]

So, borrowing from a Ninth Circuit ruling in Castro v. Cty. of Los Angeles [See: PLN, Oct. 2018, p.48.], the Court decided there are four requirements to prove a plaintiff’s risk of harm was met by jail officials with “reckless disregard.”

First, there must be “an intentional decision with respect to the conditions under which the plaintiff was confined,” like the decision Tyree allegedly made to leave Westmoreland in his cell after Sublett’s warning.

Second, that decision must also “put the plaintiff at substantial risk … of suffering serious harm,” like what happened to Westmoreland.

Third, it must be shown that “defendant did not take reasonable available measures to abate … even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved.” This, of course, was not clear from the pleadings, since Tyree said Westmoreland refused his offer to be moved and Westmoreland refuted that story.

Finally, it must also be shown that “[b]y not taking such measures, the defendant caused the plaintiff’s injuries,” which was true in this case.

So plaintiff met his burden for all requirements but the third, the Court said, reversing the district court’s order and remanding the case to gather sufficient evidence to resolve the disputed accounts of the conversation between the parties.

In his dissent, Judge John K. Bush said “[t]he majority invites judicial micromanagement of jailers’ daily affairs with a novel test for analyzing pretrial detainees’ Fourteenth Amendment failure-to-protect claims.” He predicted that the “decision will create even more confusion in our circuit and for those working in jails.”

Adding also that the ruling “reaches the wrong result,” Bush agreed with the district court that Plaintiff’s case “at best is that Tyree knew Westmoreland’s mother was concerned generally about her son’s wellbeing because St. Clair told Westmoreland’s cellmates he was a rat.” So “[e]ven under the majority’s test,” he said, “I would affirm the district court’s grant of summary judgment to defendants.” See: Westmoreland v. Butler Cty., 29 F.4th 721 (6th Cir. 2022).

Defendants then asked for a rehearing before the full Sixth Circuit en banc, but that request was denied on June 2, 2022. See: Westmoreland v. Butler Cty., 2022 U.S. App. LEXIS 15184 (6th Cir.).

The case has now returned to the district court, where a settlement conference is currently set for later in 2022. PLN will report further developments as they are available. See: Westmoreland v. Butler Cty., USDC (W.D. Ky.), Case No. 1:19-cv-00073. 

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