               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0365n.06

                                      Case No. 13-3845

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT




ROBERT M. KRUTKO,                                 )
                                                                           FILED
                                                  )                   May 15, 2014
       Plaintiff-Appellee,                        )               DEBORAH S. HUNT, Clerk
                                                  )
v.                                                )
                                                  )
FRANKLIN COUNTY, OHIO, et al.,                    )
                                                  )      ON APPEAL FROM THE UNITED
       Defendants,                                )      STATES DISTRICT COURT FOR
                                                  )      THE SOUTHERN DISTRICT OF
and                                               )      OHIO
                                                  )
TERESA HATZER; TERESA LAWLER;                     )
KRISTOPHER           KOLLER;   JEFFREY            )
HARROW;        JOHN     PENIX;   CAROL            )
TURNER, Deputies, in their official and           )
individual capacity,                              )
                                                  )
       Defendants-Appellants.                     )




       BEFORE: GILMAN, COOK, and McKEAGUE, Circuit Judges.


       COOK, Circuit Judge. Six jail guards appeal the district court’s denial of qualified and

state-law immunity on claims by former detainee Robert Krutko relating to the conditions of his
Case No. 13-3845, Krutko v. Franklin Cnty., Ohio, et al.


confinement.    Because the district court failed to assess the individual culpability of each

defendant, we vacate the blanket denial of immunity and remand for that individual assessment.

                                                 I.

       On interlocutory appeal from the denial of summary judgment, we view the evidence and

draw all reasonable inferences in favor of Krutko, the nonmoving party. Bishop v. Hackel,

636 F.3d 757, 765 (6th Cir. 2011). We thus look to Krutko’s Second Amended Complaint and

verifying affidavit, the only evidence offered to support his claims.

       One day during his detention, Krutko slept on the floor of the “hole,” a temporary

holding cell in the corrections center. As he slept, sewage from the cell’s toilet rapidly spewed

onto the wall and floor of the cell. Awakened by his two cellmates’ screams, Krutko found

himself covered in excrement from head-to-toe. The three inmates pounded on the door for help

as the sewage rose to approximately two inches on certain parts of the floor.

       According to Krutko, jail guards Carol Turner, Teresa Hatzer, Kristopher Koller, John

Penix, Jeffrey Harrow, and Teresa Lawler (collectively, the “Deputies”) came to the cell door

several times and laughed, cursed, and insulted the inmates while the room filled with

excrement. The Deputies released them from the cell only after the inmates pushed the sewage

under the door and into the hallway.

       Krutko’s narrative continues in vague terms, employing the passive voice and

collectively referring to “the guards.” Krutko maintains that he “was then transferred” to another

cell that smelled of sewage. There, he “begged the guards for a shower or soap” to no avail. But

“[h]e was . . . brought a new smock to wear.” After the excrement caused Krutko to retch, he

“was transferred to the medical department” where he “was denied soap and showers by the




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Case No. 13-3845, Krutko v. Franklin Cnty., Ohio, et al.


guards.” After several days, he moved back to the general population where he could shower for

the first time.

        Krutko sued the Deputies under 42 U.S.C. § 1983, claiming deliberate indifference in

violation of his constitutional rights and negligence and intentional infliction of emotional

distress in violation of Ohio law.1 The Deputies moved the district court for summary judgment,

asserting that qualified immunity barred the § 1983 claim and Ohio statutory immunity blocked

the state-tort claims. Denying the motion on both grounds, the district court held that the

defendant’s alleged actions violated Krutko’s clearly established rights, see Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982), and constituted reckless conduct, see Ohio Rev. Code

§ 2744.03. The Deputies appeal.

                                                    II.

        Though ordinarily we lack jurisdiction over interlocutory appeals, we may review the

denial of qualified and state-law immunity to government officials.        Mitchell v. Forsyth,

472 U.S. 511, 528-30 (1985); Sabo v. City of Mentor, 657 F.3d 332, 336 (6th Cir. 2011)

(applying Ohio law). This exception ensures that officers entitled to immunity are in fact

immunized from suit, a benefit that they would lose if the case erroneously proceeds to trial.

Scott v. Harris, 550 U.S. 372, 376 n.2 (2007). We review the denial of both qualified and state-

law immunity de novo. Simasko v. Cnty. of St. Clair, 417 F.3d 559, 562 (6th Cir. 2005); Sabo,

657 F.3d at 336-37.

A. Qualified Immunity

        In determining the Deputies’ entitlement to qualified immunity, we ask if the facts,

viewed in the light most favorable to Krutko, show the violation of a clearly established

        1
          Krutko brought these and additional claims against numerous other defendants, but the
district court granted them summary judgment, and Krutko declines to appeal these claims.
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Case No. 13-3845, Krutko v. Franklin Cnty., Ohio, et al.


constitutional right. See Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008).

The burden to make such a showing falls upon Krutko. See Rodriguez v. Passinault, 637 F.3d

675, 689 (6th Cir. 2011).

       Krutko argues that the Deputies violated his clearly established constitutional rights by

being deliberately indifferent to his conditions of confinement. To succeed, he must show that

each Deputy “subjectively perceived facts from which to infer substantial risk [to Krutko], . . . in

fact dr[e]w the inference, and . . . then disregarded that risk.” Phillips, 534 F.3d at 540. The

district court therefore “should consider whether each individual defendant had a sufficiently

culpable state of mind.” Id. at 542.

       Here, the district court failed to conduct such an individualized inquiry. See Bishop,

636 F.3d at 767 (holding that the district court erred by failing to evaluate the liability of each

defendant individually).    Instead, it denied qualified immunity to the Deputies as a group,

pointing to their collective acts in “allow[ing] [Krutko] to be covered in raw sewage, delay[ing]

[his] remov[al] . . . from the affected area while taunting him, and then prevent[ing] him from

cleaning himself for days.” In doing so, the court neglected to identify evidence showing each

Deputy’s deliberate indifference to Krutko’s condition. Cf. Arnold v. Lexington-Fayette Urban

Cnty. Gov’t, 352 F. App’x 972, 973 (6th Cir. 2009) (“[I]t is inappropriate to assess the care (or

lack thereof) rendered to [the plaintiff] by the detention center staff as a group.”).

       We thus hold that “the best course is to remand for the district court to set forth with

precision the basis for its decision.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 571 (6th

Cir. 2013) (internal quotation marks omitted) (remanding where the district court failed to

“mention any facts in the record that specifically pertained to” the defendant or “make any




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Case No. 13-3845, Krutko v. Franklin Cnty., Ohio, et al.


findings regarding [the defendant’s] knowledge or mental state”); see also Arnold, 352 F. App’x

at 973 (same).

B. State Law Immunity

        The Deputies also challenge the district court’s denial of Ohio statutory immunity

grounded on its view that Krutko’s evidence showed immunity-precluding recklessness by the

Deputies. See Ohio Rev. Code § 2744.03(A)(6)(b). Once again, however, the court provided

only a general conclusion rather than the requisite individualized analysis. It found immunity

inapplicable due to the Deputies’ “delay in removing [Krutko] from a cell filling with raw

sewage and the subsequent refusal to allow [Krutko] to clean himself.” We thus remand for the

district court to address individually each Deputy’s culpability. See Stoudemire, 705 F.3d at 571.

                                                        III.

        We VACATE the district court’s denial of immunity to the Deputies and REMAND to

the district court for reconsideration in light of this opinion.




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