              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0353n.06

                                          No. 16-5487

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                  FILED
KAREN LAWRENCE, Personal Representative )                                    Jun 21, 2017
for the Estate of Charles Hoffman,      )                                DEBORAH S. HUNT, Clerk
                                        )
         Plaintiff-Appellee,            )
                                        )
v.                                      )                 ON APPEAL FROM THE
                                        )                 UNITED STATES DISTRICT
MADISON COUNTY et al.,                  )                 COURT FOR THE EASTERN
                                        )                 DISTRICT OF KENTUCKY
         Defendants,                    )
                                        )
and                                     )                          OPINION
                                        )
DOUG THOMAS,                            )
                                        )
         Defendant-Appellant.           )
                                        )


Before: BOGGS, SILER, and MOORE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Madison County

Jailer Doug Thomas appeals the district court’s judgment denying qualified official immunity as

to Plaintiff-Appellee Karen Lawrence’s state-law negligence claim.       Lawrence, as personal

representative for the estate of her son Charles Hoffman, brought this lawsuit after Hoffman

committed suicide while incarcerated in the Madison County Detention Center (MCDC).

Lawrence sued Madison County and employees of the MCDC in their official and individual

capacities for constitutional and state-law violations. This appeal concerns only Jailer Thomas’s

claim of qualified official immunity from Lawrence’s individual-capacity state-law negligence
No. 16-5487, Lawrence v. Madison County et al.


claim against Thomas.       Lawrence alleged that Thomas was negligent because he failed to

enforce a mandatory policy requiring jail employees to check on inmates in isolated housing

every twenty minutes. The district court held that Thomas did not have qualified official

immunity because Thomas’s duty to enforce the mandatory twenty-minute check-in policy was

ministerial, not discretionary. For the reasons discussed below, we AFFIRM the judgment of

the district court.

                                      I. BACKGROUND

A. Factual Background

        Charles Hoffman was committed to the custody of the MCDC on October 14, 2012.

R. 156-6 (Hoffman Med. Questions Form 10/14/2012) (Page ID #1311); R. 156-1 (Mem. in

Support of Summ. J. at 2) (Page ID #1258). Hoffman was on parole in Michigan until he cut off

his ankle monitor and fled to Kentucky, where he was apprehended and taken to the MCDC.

R. 156-2 (Lawrence Dep. at 46–48) (Page ID #1289–91); R. 156-1 (Mem. in Support of Summ.

J. at 2) (Page ID #1258).

        On November 7, 2012, Hoffman was put into isolated housing (also called “the hole”).

R. 154-13 (Incident Report 11/07/2012 at 1) (Page ID #871). There is a factual dispute as to why

Hoffman was put in isolated housing—it is not entirely clear whether Hoffman threatened to kill

himself, threatened to hurt himself without going so far as to threaten to kill himself, threatened

to hurt others, or some combination. See Opinion & Order at 2–4 (summarizing various parties’

and witnesses’ statements about why Hoffman was moved to isolated housing). Although

potentially relevant to other aspects of Lawrence’s lawsuit, the details of why Hoffman was put


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No. 16-5487, Lawrence v. Madison County et al.


in isolated housing are not relevant to the sole issue in this appeal, which is whether Jailer

Thomas is entitled to qualified official immunity on Lawrence’s state-law negligence claim.

       Hoffman committed suicide on November 10, 2012. R. 179-3 (Med. Exam’r Report at 1)

(Page ID #4045). Hoffman hanged himself using a bedsheet and a plastic bag. Id. (Page ID

#4045); R. 156-20 (Moody Dep. at 20–21) (Page ID #1392–93). Hoffman threaded the plastic

bag through a small hole in the air vent and tied the other end of the bag to the bedsheet, which

he had made into a noose. R. 156-20 (Moody Dep. at 20–21) (Page ID #1392–93). Officer

Christine Greene went to Hoffman’s cell at 8:42 p.m. and found him hanging from the ceiling.

R. 179-3 (Med. Exam’r Report at 1) (Page ID #4045); R. 180 (Keeton Dep. at 21) (Page ID

#4086). Officers unsuccessfully attempted CPR. Id. The coroner pronounced Hoffman dead

shortly after Greene found him. R. 179-3 (Med. Exam’r Report at 1) (Page ID #4045).

       The MCDC policy in effect on the day of Hoffman’s suicide required officers to check

every twenty minutes on inmates housed in the hole. R. 180 (Keeton Dep. at 110) (Page ID

#4175). The evidence indicates that on the evening Hoffman committed suicide, no one checked

on him for over three hours. Greene checked on Hoffman at 5:11 p.m. and found him dead at

8:42 p.m., but no one checked on him between 5:11 p.m. and 8:42 p.m. Id. at 22 (Page ID

#4087). Greene initially disputed that she did not check on Hoffman between 5:11 p.m. and 8:42

p.m. During an investigation into Hoffman’s death, Greene told detective Michael Keeton that

she had checked on Hoffman between 5:30 p.m. and 6:00 p.m. and at approximately 7:30 p.m.

Id. at 21 (Page ID #4086). Greene said that, at 7:30 p.m., Hoffman waved at her and told her he

was fine. Id. (Page ID #4086). Greene also filled out a log indicating that she had checked on


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No. 16-5487, Lawrence v. Madison County et al.


Hoffman several times. Id. at 24 (Page ID #4089). However, the MCDC’s surveillance video

contradicts the logs and Greene’s statements to Keeton, and shows that in fact Greene did not

check on Hoffman between 5:11 p.m. and 8:42 p.m. Id. at 22 (Page ID #4087). Keeton

concluded that Greene was lying when she said she checked on Hoffman between 5:11 p.m. and

8:42 p.m. and concluded that she had altered the logs. Id. at 22–23 (Page ID #4087–88).

       Keeton asked Thomas about the altered logs. Thomas acknowledged that he knew his

staff falsified the logs and that he previously had to talk to his staff about not altering the logs.

R. 180 (Keeton Dep. at 37) (Page ID #4102). Keeton found that there was “a history [and]

practice” of MCDC staff failing to check on inmates housed in the hole. Id.

B. Procedural History

       Lawrence filed suit in the United States District Court for the Eastern District of

Kentucky on November 8, 2013. She brought constitutional and state-law claims against several

defendants, including Thomas, Greene, and other officers who were on duty at the jail on the

night Hoffman committed suicide. R. 1 (Compl. at 1, 7–15) (Page ID #1, 7–15). The sole claim

at issue in this appeal is an individual-capacity state-law negligence claim against Thomas.

Appellant Br. at 3; Appellee Br. at 3. The district court denied Thomas’s motion for summary

judgment with respect to the individual-capacity state-law negligence claim against him.

Opinion & Order at 41. The district court held that Thomas did not have qualified official

immunity. It determined that the twenty-minute check-in policy “unambiguously imposed a duty

to perform a concrete act at a fixed interval, with no built-in discretion to deviate from that duty.

Substantial evidence also supports . . . that Thomas failed to take reasonable steps to enforce the


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No. 16-5487, Lawrence v. Madison County et al.


requirement. The check-in requirement thus imposed a ministerial duty.” Id. (footnote omitted).

It determined that Thomas was “not entitled to qualified immunity for allegedly breaching that

duty.” Id. Thomas timely appealed.

                                         II. DISCUSSION

       We have jurisdiction over an interlocutory appeal of the denial of qualified official

immunity. Hedgepath v. Pelphrey, 520 F. App’x 385, 388–89 (6th Cir. 2013) (citing Berryman

v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)); cf. Marson v. Thomason, 438 S.W.3d 292, 296

(Ky. 2014). The defendant is entitled to summary judgment on the basis of qualified official

immunity only if the undisputed facts (or, if there are disputed facts, the evidence viewed in the

light most favorable to the plaintiff) establish that the requirements for qualified official

immunity are satisfied. Hedgepath, 520 F. App’x at 388–89; cf. Rowan Cty. v. Sloas, 201

S.W.3d 469, 474 (Ky. 2006). We review the district court’s judgment de novo. See Finn v.

Warren Cty., 768 F.3d 441, 448 (6th Cir. 2014).

       Reviewing de novo, we reach the same conclusion as the district court. Enforcing the

mandatory twenty-minute check-in policy is a ministerial function, and Thomas is not entitled to

qualified official immunity for his failure to discharge this ministerial function.

       “Qualified official immunity applies to the negligent performance by a public officer or

employee of (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.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)

(citation omitted). Qualified official immunity does not apply to “the negligent performance of a


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No. 16-5487, Lawrence v. Madison County et al.


ministerial act, i.e., one that requires 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.” Id. (citation omitted); see also Sloas, 201 S.W.3d at 477–79

(providing examples of discretionary and ministerial duties). “Whether the employee’s act is

discretionary, and not ministerial, is the qualifier that must be determined before qualified

immunity is granted to the governmental employee.” Marson, 438 S.W.3d at 296.

       According to the Kentucky Supreme Court, “a ministerial act is ‘one . . . when the

officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act

arising from fixed and designated facts.’” Id. at 297 (quoting Yanero, 65 S.W.3d at 522). “[A]

governmental agent can rightfully be expected to adequately perform the governmental function

required by the type of job he does. To the extent his job requires certain and specific acts, the

governmental function is thwarted when he fails to do or negligently performs the required acts.”

Id. at 296. As such, “failing to properly carry out the government’s commands when the acts are

known and certain can be” a tort. Id. By contrast, “when performance of the job allows for the

governmental employee to make a judgment call, or set a policy, the fact that there is uncertainty

as to what acts will best fulfill the governmental purpose has resulted in immunity being

extended to those acts where the governmental employee must exercise discretion.” Id.

       The key question is whether performing the act is mandatory, not whether the employee

has some discretion about how to perform it: “[A]n act is not necessarily outside the ministerial

realm ‘just because the officer performing it has some discretion with respect to the means or

method to be employed.’” Id. at 297 (quoting Yanero, 65 S.W.3d at 522). Even if an employee


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No. 16-5487, Lawrence v. Madison County et al.


has some discretion about how to do the act, if the employee “has no choice but to do the act, it

is ministerial.” Id.

        In a case similar to this one, we ruled that under “‘well-settled’ Kentucky law . . .

although a supervisor’s decision ‘on the content of policies and training is a discretionary

function, the training of employees to adhere to their duties once that content is decided is a

ministerial function.’” Finn, 768 F.3d at 449 (quoting Hedgepath, 520 F. App’x at 391). To the

extent that “the contents of the policy were decided” and supervisors “simply failed to train the

jailers on how to comply with those policies,” an allegation of failing to train officers to follow a

policy “implicate[d] a ministerial duty.” Id. (quoting Hedgepath, 520 F. App’x at 391–92). Like

training, “the supervision of employees is a ministerial act when it merely involved enforcing

known policies.” Id. (quoting Hedgepath, 520 F. App’x at 391).

        Marson and Finn control the outcome of this case. As in Finn, the content of the policy

at issue was decided. The policy made it mandatory for jail employees to check every twenty

minutes on inmates housed in the hole. Because the policy made checking in every twenty

minutes mandatory, the jail employees had no choice but to check on inmates every twenty

minutes, and Thomas had no choice but to train the jail employees to comply with the policy and

supervise them to ensure they were complying with the policy. Thomas “simply failed to train

the jailers on how to comply with [the] polic[y].” Finn, 768 F.3d at 449 (quoting Hedgepath,

520 F. App’x at 391–92). Training and supervising the jail employees to follow the mandatory

twenty-minute check-in policy “involv[ed] merely execution of a specific act”—namely,

ensuring that jail employees followed the mandatory twenty-minute check-in policy—“arising


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No. 16-5487, Lawrence v. Madison County et al.


from fixed and designated facts”—namely, the existence of the mandatory twenty-minute check-

in policy. Marson, 438 S.W.3d at 297 (quoting Yanero, 65 S.W.3d at 522). Marson makes clear

that just because Thomas had “some discretion with respect to the means or method to be

employed” does not mean that training and supervising jail employees to follow the mandatory

twenty-minute check-in policy was “outside the ministerial realm.” Marson, 438 S.W.3d at 297

(quoting Yanero, 65 S.W.3d at 522). Because he “ha[d] no choice but to do the act” of training

jail employees to follow the twenty-minute check-in policy, the act “is ministerial.” Id.

       Therefore, training jail employees to follow the jail’s mandatory twenty-minute check-in

policy is a ministerial function, not a discretionary function. Thomas is not entitled to qualified

official immunity because he failed to perform a ministerial function.

       Qualified official immunity also does not apply to acts performed in bad faith, which

“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 “willfully or

maliciously intend[ing] to harm the plaintiff or act[ing] with a corrupt motive.” Yanero, 65

S.W.3d at 523 (citation omitted). Nor does qualified official immunity apply to acts performed

outside “the scope of the employee’s authority.” Id. at 522. All three criteria (a discretionary

act, performed in good faith, that is within the scope of the employee’s authority) must be

satisfied for qualified official immunity to apply. Id. Because the first criterion is not met, we

do not address the latter two criteria.




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No. 16-5487, Lawrence v. Madison County et al.


                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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