MOORE, JUDGE.
Celesa M. Stone was an inmate at the Community Corrections Center (CCC), a facility operated by the Louisville Metro Department of Corrections. At approximately 7 p.m. on Wednesday, February 6, 2008, she returned to the facility from either a work release or an Alcoholics Anonymous meeting. At approximately 7 a.m. on Thursday, February 7, 2008, she was discovered dead in her bunk from a drug overdose.
The above-captioned Appellees (who we refer to collectively as the "Estate") filed an action in Jefferson Circuit Court alleging that Officer Caron Leonhardt of the Louisville Department of Corrections, in her individual capacity, negligently supervised Stone at CCC during this period of time and that Leonhardt's alleged negligence was a proximate cause of Stone's death. Leonhardt moved to dismiss the Estate's action on the basis of qualified official immunity, a defense which immunizes public officers or employees from liability for negligence provided that the negligence in question arises from "(1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority." James v. Wilson, 95 S.W.3d 875, 905 (Ky. App. 2002) (internal citations omitted). "Once the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act [was in bad faith]." Rowan County v. Sloas, 201 S.W.3d 469, 476 (Ky. 2006) (citing Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001)).
With that said, the circuit court denied Leonhardt's motion to dismiss solely upon its determination that Leonhardt's allegedly negligent acts giving rise to liability in this matter were ministerial rather than discretionary; the only arguments offered by the Estate on appeal relate to the issue of whether Leonhardt's duties at issue herein were ministerial; and, therefore, only the first element of Leonhardt's qualified immunity defense is at issue in this appeal.
Leonhardt testified that when Stone returned to CCC at 7 p.m. on Wednesday, February 6, 2008, she strip searched Stone. Pursuant to CCC policy, this strip search did not include a body cavity search. Leonhardt also testified that she escorted Stone back to Stone's assigned dormitory following the strip search and then returned to her duties elsewhere.
CCC houses female inmates in two separate dormitories respectively named "one south one" and "one south two." Stone resided in one south two, along with Christy Brooks who was present in the dormitory when Stone arrived that evening. In a February 7, 2008 sworn statement, Brooks averred that Stone looked "high" when she arrived at one south two. She described that Stone was "sweating profusely" and that when Stone walked in the door, she "took two steps, eyes rolled back and she pretty much fell asleep standing up."
Marie Reeves, another inmate, represented that she was also present at that time. According to her sworn statement, Reeves has worked as a nurse, informed Leonhardt of that fact, and her assessment of Stone's condition was similar to Brooks's assessment:
Assuming Reeves's statement is true, there is nothing in the record demonstrating that Leonhardt acted upon it, documented it, or related it to anyone.
Shortly afterward, Leonhardt was in one south one assisting the on-duty nurse with distributing prescribed medications to inmates, a process she refers to as "sick call," when the "shower incident" occurred. It is difficult to determine the time of this event because Leonhardt's sworn statement recites that it began at 9:05 p.m.; the estimate she later provided in her deposition was that it ended between 8:30 p.m. and 9 p.m.; and, the inmates' estimates, which differ somewhat, are qualified by the fact that their dormitories have no clocks. In relevant part, Leonhardt's sworn statement describes the shower incident as follows:
Leonhardt's account of the shower incident is largely corroborated by the sworn statements and depositions of other witnesses, but a few points of it warrant further discussion. First, according to the record before us, Leonhardt is the only corrections officer who admits any knowledge of Scott's allegation that Stone was smuggling pills into CCC. Goldsmith, who was the only other corrections officer to give any kind of statement in this matter, recalled only that Scott had accused Stone of being intoxicated.
Second, nothing in the record, aside from Leonhardt's testimony, reflects that Leonhardt told anyone about Scott's accusation that Stone was smuggling pills into CCC. In his own deposition, Goldsmith specifically denied that Leonhardt told him anything to this effect.
Third, Goldsmith and Leonhardt both testified that Germane Holley, the nurse who had accompanied Leonhardt on sick call, evaluated Stone at some point during the shower incident. Goldsmith assumed that Holley was evaluating Stone for signs of possible intoxication. Yet, Goldsmith and Leonhardt both admitted that as far as they knew no one had informed Holley that Stone could have been intoxicated or was exhibiting signs of intoxication. Goldsmith admitted that Holley's purpose in evaluating Stone "wasn't as much for the drugs as it was that the nurse is standing there, [Stone] had claimed she had been bleeding; she was a little upset. You've got a medical person standing there; why not have her checked out." And, aside from Leonhardt's testimony that part of Holley's evaluation involved Holley offering Stone some Motrin and a piece of paper to write on (which Leonhardt presumes was for the purpose of documenting Stone's need for tampons or sanitary pads), nothing in the record documents Holley's evaluation or impression of Stone. Moreover, Leonhardt represented in her sworn statement that Holley was "a new nurse and he gets confused[.]"
Fourth, in their depositions and sworn statements, both Goldsmith and Leonhardt each stated that they had an opportunity to evaluate and interact with Stone and that in their opinions Stone gave no appearance of intoxication. Their statements conflict with those given by Brooks and Reeves, who also observed Stone at this time. Brooks stated, "I mean it was obvious by looking at her, I mean you couldn't not know that [Stone] was really messed up." Brooks averred that during the shower incident she also told the responding officers that she believed Stone was "high on something." To the same effect, Reeves stated:
According to Leonhardt, the shower incident lasted approximately 45 minutes from beginning to end. It culminated in Scott's removal from CCC and Stone's return to one south two. Leonhardt remained in the area as the floor supervisor of Stone's dormitory. She testified that she regularly checked on the inmates until about 11:15 p.m. and that she eventually clocked out and went home at about 11:30 p.m. She testified that during that time, she had another opportunity to observe Stone. She testified that she noticed only that Stone "looked worn out, she just, you could tell she had been crying, but I mean she wasn't like still crying or you know, whiney you know or anything like that." She testified that she specifically asked Stone if she was feeling any better and that Stone responded by saying that she was fine. Additionally, Leonhardt's sworn statement provides:
However, this differs significantly from Brooks's and Reeves's recollections. Brooks described that when Stone returned to the dormitory following the shower incident, her breathing was "raspy" and "very, very un-normal." Brooks recalled an inmate telling Leonhardt that Stone was going to fall off of her bunk, and further recalled that Leonhardt had replied by instructing the inmates to "just put a bunch of mats around her in case she falls." Similarly, Reeves stated:
Officer Leonhardt testified that when she clocked out for the night at approximately 11:30 p.m., she was relieved by another corrections officer. There is no indication from the record that any other corrections officer checked on the inmates of one south two for the remainder of the night or was required to do so after Leonhardt left. And, as noted previously, Stone was discovered dead in her bunk at 7 a.m. the next morning from what the record describes as "mixed drug intoxication."
Leonhardt asserted the defense of qualified official immunity by way of a motion to dismiss pursuant to Kentucky Rule(s) of Civil Procedure (CR) 12.02(f), but the trial court considered several matters outside the pleadings in rendering its decision on this motion. As such, Leonhardt's motion to dismiss was converted into a motion for summary judgment. See Cabinet for Human Resources v. Women's Health Services, Inc., 878 S.W.2d 806, 807 (Ky. App. 1994); see also Pearce v. Courier-Journal, 683 S.W.2d 633, 635 (Ky. App. 1985).
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). "`Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky.1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment.") Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted).
On appeal, we must consider the evidence of record in the light most favorable to the non-movant, and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).
The Estate essentially contends that Leonhardt breached her duty to supervise Stone in two different ways. First, the Estate alleges that Leonhardt failed to follow a mandatory reporting policy that CCC has instituted regarding inmate intoxication and withdrawal. Second, it alleges that Leonhardt failed to follow what it asserts is a mandatory contraband search procedure that was triggered when Leonhardt heard Scott accuse Stone of smuggling pills into the facility. The Estate alleges that Leonhardt's failure to follow these procedures was a substantial factor in causing Stone's death. According to the Estate, both of these procedures qualified as ministerial duties, rather than discretionary duties. Therefore, the Estate reasons that if Leonhardt breached either of these duties, Leonhardt is not entitled to assert qualified immunity as a defense against the Estate's wrongful death action.
We begin with the Estate's argument and the circuit court's conclusion that Leonhardt's alleged failure to follow a mandatory reporting policy that CCC has instituted regarding inmate intoxication and withdrawal qualified as a breach of a ministerial duty. In relevant part, that policy provides:
The language of this policy describes a mandatory duty (i.e., notifying "medical"). This duty is triggered by an assessment of whether an inmate is exhibiting "signs" of withdrawal or intoxication. The policy's apparent use of "withdrawal" and "intoxication" as interchangeable terms is somewhat confusing, as is its institutional use of passive voice (see, e.g., provision IV(B): "Once medical is notified that an inmate has been observed exhibiting signs of alcohol or drug withdrawal . . ."). However, provision "I" clearly places the onus of following and enforcing this policy—and thus assessing whether symptoms of intoxication are present—upon LDMC staff. The circuit court specifically determined that this policy applied to Leonhardt's supervision of Stone, and there was no contrary argument offered below.
The circuit court's conclusion that that this policy implicated a ministerial duty was based in part upon Goldsmith's deposition testimony:
On appeal, Leonhardt argues that the assessment of whether an inmate is exhibiting signs of withdrawal or intoxication, pursuant to the above policy, is a discretionary rather than ministerial act and that it entitled her to assert qualified immunity. We disagree.
The general duty that corrections officers owe to inmates "undoubtedly includes summoning necessary medical care or assistance for instances of serious medical need." Webb v. Jessamine County Fiscal Court, 802 F.Supp.2d 870, 888 (E.D. Ky. 2011) (discussing Kentucky Revised Statute(s) (KRS) 71.040). CCC policy and Leonhardt's training specified Leonhardt's duty under the circumstances of this case. While the policy did not authorize Leonhardt to diagnose intoxication or withdrawal, it mandated that she use her training to recognize, anticipate, and report specific signs and symptoms of intoxication and withdrawal in inmates in order to prevent them from sustaining injuries due to intoxication and withdrawal. And, "[m]inisterial training is where you are mandated to train to avoid the event that occurred." Sloas, 201 S.W.3d at 481.
Obviously, some subjective determinations need to be made in deciding whether an inmate is exhibiting symptoms of withdrawal or intoxication necessitating transport to a medical facility. Nevertheless, "[t]he administration of medical care is a ministerial function by employees, including doctors." Gould v. O'Bannon, 770 S.W.2d 220, 222 (Ky. 1989).
Taking the evidence of record in the light most favorable to the Estate, we will paraphrase the reasoning of Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky. 2003): a reasonable jury could conclude that Leonhardt should have been aware, following the shower incident, that Stone was exhibiting signs of intoxication; the obvious danger to Stone from that fact should have been foreseen, thus triggering Leonhardt's affirmative duty to contact medical, as mandated by CCC policy; and, a reasonable jury could further conclude that Leonhardt's failure to follow the CCC policy was a substantial factor in causing Stone's death. Whether Leonhardt was negligent in assessing Stone's condition, with due regard being given to all the facts and circumstances, is a question for resolution by the trier of fact. Therefore, we agree with the circuit court's decision to deny Leonhardt qualified immunity on this point.
The summary judgment evidence shows that Officer Leonhardt strip searched Stone when Stone returned to CCC. The evidence also shows that at the time of Stone's death, Stone had ingested drugs qualifying as contraband. The Estate argues that Officer Leonhardt's failure to find the contraband prior to Stone's ingesting it violated a ministerial duty because LDMC had a policy requiring that any contraband in the possession of an inmate be seized by the corrections officers. It argues that because the officer has no discretion as to whether to seize the contraband, Officer Leonhardt violated her ministerial duty by not seizing the contraband. While we agree that if Officer Leonhardt had found the contraband when she strip searched Stone she would have had a ministerial duty to seize it, the record establishes that Officer Leonhardt was not aware that Stone was hiding any drugs when she strip searched Stone upon Stone's return to CCC. No party alleges that Leonhardt should have been aware at that time, or that Leonhardt's search of Stone was otherwise negligent. Thus, Leonhardt's ministerial duty to seize the drugs could not have arisen at that point.
The Estate further argues, however, that CCC has a policy that mandates an additional contraband search of an inmate if, following the inmate's admission to the facility, any other inmate accuses that inmate of smuggling in contraband. Leonhardt, on the other hand, argues that she had the discretion to ignore Rosemary Scott, the only inmate to accuse Stone of smuggling drugs, because Scott had a history of disciplinary problems and a history of making false accusations after finding herself in trouble (as Scott found herself following the shower incident). Therefore, we focus on whether an additional search that could have led to the discovery of the contraband involved ministerial as opposed to discretionary duties.
If CCC has a written policy specifying a mandatory procedure for conducting contraband searches following admission, that policy is not in the record before us, nor was it relied upon by the circuit court. In concluding that searching inmates for contraband at CCC (after a prior strip search has already been conducted) was a ministerial act for the purpose of qualified immunity, the circuit court instead relied upon its interpretation of three pages of deposition testimony given by Leonhardt and Goldsmith regarding their subjective recollections and understandings of that policy. Goldsmith testified:
This testimony reflects that if a corrections officer becomes "aware" through his own observations that an inmate is carrying contraband, he must take measures to remove that contraband and has no discretion to allow the inmate to keep it. The circuit court further interpreted this testimony to mean that if any inmate told a corrections officer that another inmate had contraband, the corrections officer must instead defer to and immediately act upon the inmate's observations. However, Goldsmith's statement that "It's been a while since I read the policies and procedures" calls the veracity of this interpretation into question, as does the fact that Goldsmith was responding to a series of compound questions that repeatedly referenced the corrections officer's subjective awareness.
Furthermore, Leonhardt's deposition testimony, as cited by the circuit court in its judgment, tends to undermine the conclusion that the contraband search policy implicated a ministerial duty rather than a discretionary one:
We have no doubt that CCC has an explicit, written policy regarding contraband searches; although it was never entered into the record in this matter nor relied upon or analyzed by the circuit court, there are allusions to this policy throughout Goldsmith's and Leonhardt's depositions. Moreover, we have little doubt that a corrections officer's decision to strip search
It is alleged, however, that a mere search of Stone's belongings or a simple pat-down might have uncovered the drugs that Stone ultimately died from ingesting. It is alleged that the mere allegation of an inmate is enough to trigger a specific protocol warranting such a search. And, we do not completely discount this proposition because Goldsmith indicated in his deposition that no reasonable suspicion was necessary for a corrections officer to conduct these cursory types of searches and that they may be done simply as a matter of course. For example, his deposition provides:
The written contraband search policy would qualify as evidence and we could meaningfully review this part of the circuit court's judgment if we had that policy before us. But, we are left to interpret the provisions of that policy based solely upon speculation and supposition—namely, Goldsmith's and Leonhardt's conflicting subjective beliefs, recollections, and hints about that policy —rather than the policy itself. As a basic rule, "speculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." Cave, 202 S.W.3d at 588. It necessarily follows that when a circuit court is called upon to make an ultimate determination of whether a duty specified in a written policy is ministerial or discretionary, and it bases its ultimate determination of that issue solely upon speculation and supposition about the written policy rather than the language of the written policy itself, the circuit court's finding must be reversed and the matter must be remanded. We deem this to be the proper course of action here. Upon remand, the parties shall produce the policy in question, and the circuit court shall rely upon and analyze that policy as it revisits this issue.
For these reasons, the Jefferson Circuit Court's judgment is affirmed in part and reversed in part, and this matter is remanded for further proceedings not inconsistent with this opinion.
ALL CONCUR.
(Emphasis added). Notably, both of these regulations list "reliable information" as one of several bases for a "reasonable suspicion." See 501 KAR 3:120 § 3(1)(b)(2); 501 KAR 7:120 § 3(1)(b)(2).
