Response to motion for summary judgment - Kentucky.com

ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
CIVIL ACTION NO. 06-129-JBC
DORIS ARNOLD, as Successor Administrator of the
Estate of Gerald Lynn Cornett, Deceased PLAINTIFF
vs:
LEXINGTON FAYETTE URBAN COUNTY
GOVERNMENT, et al
DEFENDANT
______________________________________________________________________________
PLAINTIFF’S RESPONSE TO THE GOVERNMENT DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON EXCESSIVE FORCE COUNT
______________________________________________________________________________
Comes the Plaintiff Doris Arnold, as the Successor Administrator of the Estate of Gerald
Cornett 1 (deceased), and for her Response to the Motion for Summary Judgment filed by the
Government Defendants in this action, hereby states as follows:
INTRODUCTION
Sadly, Gerald Cornett is dead and cannot tell us what happened to him at the Detention
Center while he was laying on the concrete floor of a jail cell in a pool of his own urine. The thrust
f the Defendants’ latest Motion for Summary Judgment, however, is that “dead men tell no tales,”
and that we cannot know what happened to Gerald Cornett that night because Gerald is dead. If this
was true, men could get away with murder simply by lying, because the dead murder victim would
forever be unable to tell the truth.
Gerald Cornett arrived at the Detention Center unharmed, with the possible exception of a
1 We shall alternatively refer to Gerald Cornett herein as “Gerald.”
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few older bruises on his arms and legs. He left the Detention Center with a severe head injury
(caused by a fall), six broken ribs, and numerous bruises, both old and new, all over his body. (See
Photographs, Exhibit 1, Autopsy Report, Exhibit 2, and UK Medical Records, Exhibit 3). Gerald
arrived at the University of Kentucky Emergency Room in such a battered state that a UK police
officer called the Lexington Police Department to report a possible violent crime. While Gerald was
at the Detention Center, two (2) guards, Clarence McCoy and Maria Jones, were, by their own
admission, alone with him for three to five minutes, applying “pain compliance techniques.” This
evidence is more than sufficient for a jury to infer (not speculate) that McCoy and Jones in fact beat
Gerald.
STATEMENT OF FACTS
The Defendants claim that “[i]t is quite probative for purposes of this Motion that after
extended litigation the Amended complaint does not identify the Defendant or Defendants who the
Plaintiff alleges used excessive force on Gerald Cornett.” (Defendants’ Memorandum in Support
of Motion for Summary Judgment at 3). This fact could not be less probative, and, to clear up any
confusion, the Plaintiff alleges that Gerald was beaten, while he lay dying, in P-7 by Clarence
McCoy and Maria Gaines.
Furthermore, the Court can appreciate the difficulty of piecing together the events of August
14 and 15, 2005, when the Defendants are the only eyewitnesses to what happened to Gerald while
he lay dying in P-7, and there is strong evidence that these same Defendants attempted to cover up
the fact that Gerald had even fallen at their facility. However, as the Plaintiff will show, there is
sufficient circumstantial evidence from which a jury can determine that Clarence McCoy and/or
Maria Jones beat Gerald Cornett between 2:40 and 2:45 a.m. on August 15, 2005.
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A. Cover-up by the Detention Center
The Plaintiff’s excessive force claim may require a jury to accept that some or all of the
Detention Center employees conspired to cover up the events of August 15, 2005, and to lie about
what happened to Gerald that night. Although this is ultimately a credibility issue, the Court should
be aware that this scenario is not unlikely at all but is, in fact, exactly what happened. In fact, from
the very moment emergency technicians transported Gerald from the Detention Center to the
University of Kentucky hospital, Detention Center officials attempted to cover up and hide exactly
what had happened that night, even to the emergency room physicians who heroically attempted to
save Gerald’s life.
1. Cover-up to the Press
The Lexington Fayette Urban County Government and the Fayette County Detention Center
tried to cover up this incident immediately after it happened. The Lexington Herald-Leader wrote
about Gerald’s death on August 21, 2005. As the Court can see from the article, attached as Exhibit
4, the LFUCG “[r]eiterated yesterday that Cornett did not enter or leave the detention facility with
any bruises or head injuries. Capt. Edye Dabney, a jail spokeswoman, said there was no indication
that Cornett got into a fight at the jail and that he ‘was very compliant, very cooperative.’” 2
(Emphasis added). 3 In other words, six (6) days after the horrible events that occurred towards
Gerald, LFUCG took the position that Gerald did not enter or leave the Fayette County Detention
Center with any bruises or head injuries. This was at a point in time after its own employees
2 Her statement about Gerald being cooperative and compliant was the only true statement she made.
3 See also, August 22, 2005 Article from the Lexington Herald-Leader (attached as Exhibit 5). This Court has
ruled that these articles are inadmissible in this action for Trial purposes, and Doris will call both the writers of same and
Captain Dabney as witnesses during her case in chief regarding these statements.
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prepared numerous reports and statements clearly indicating these Defendants’ knew of Gerald’s
fall and of Gerald’s condition after he left the Detention Center.
After Stephanie Mogan came forward, and stated that Gerald had in fact fallen that night, and
that Detention Center staff had not sought medical attention for Gerald afterwards, the LFUCG
changed its tune, and owned up to some of the events that occurred that night, including the fact that
Gerald had fallen and sustained a head wound. The Lexington Herald Leader questioned, and again
cited, Captain Dabney in an article appearing on August 23, 2005. (8/23/05 Herald Leader article
attached hereto as Exhibit 6.) There, it was reported:
Dabney had said the ambulance was called after a guard noticed Cornett was
“unresponsive” in a holding cell. When asked why she did not disclose the fall last
week, Dabney said “because we have procedures to follow.” (Emphasis added).
The Defendants, acting through their spokesperson, initially tried to cover up the fact that
Gerald had fallen and suffered a head wound while in their custody. Even more egregiously, at this
point in time, Gerald’s family was desperately attempting to find out what happened to their beloved
son and were stonewalled to the point that they were forced to seek and retain counsel to try and find
out what happened to him.
2. Cover-up to Gerald’s Treating Doctors at the University of Kentucky
Emergency Room
As the Court can see from the initial University of Kentucky Medical records (cited portions
of which are attached hereto as Exhibit 3), the history given to the people that were trying to save
Gerald’s life was:
pt observed by jail staff to be exhibited (sic) sx of “old stroke” (i.e. hemiparesis or
slurred speech ()). Pt had old bruising noted at time also. Pt found in cell [at] 0240
unresponsive, breathing spontaneously.
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The Triage Nursing Care Record from the University of Kentucky Emergency Room (“UKER”)
also fails to mention any such head wound or trauma. Noticeably absent from this record, or any
other record maintained by UKER describing the history provided to them, is the now-undisputed
fact that Gerald fell and struck his head while in the Defendants’ custody.
Robert Williams was the Detention Center employee who escorted Gerald in the ambulance
to the UKER. Mr. Williams testified that he knew that Gerald had fallen and hit his head on the wall
and the floor. (Williams Depo. pg. 33) (Cited portions from Williams’ deposition are attached hereto
as Exhibit 7.) Williams then attempted to testify that he told the ER physician, Dr. Boggs, that
Gerald had fallen and hit his head (Id., p. 35-36). However, there is no such history contained in Dr.
Boggs’ notes nor in any other initial UKER record. These records demonstrate that UKER was
given a history indicating only that Gerald had signs of an old stroke.
Further, Kristine LaFoe admitted at her deposition that she was personally telephoned by Dr.
Boggs after Gerald was taken to the UKER. (Lafoe Depo. pp. 81-82) (Cited portions of Lafoe’s
deposition are attached hereto as Exhibit 8.) According to LaFoe, it was unusual for a physician
to place such a call to the Detention Center. Moreover, Lafoe admitted that Dr. Boggs was asking
questions about Gerald’s arrest and whether there were any special circumstances or incidents.
LaFoe further admitted that, at the time of his call, she knew Gerald had fallen and struck his head.
Incredibly, LaFoe testified that she did not tell Dr. Boggs about the fall and head injury because he
did not directly ask about it. (Id.). This was a man trying to save Gerald’s life! Not only does this
show LaFoe’s attempt to keep this information from the personnel attempting to save Gerald’s life,
and hence demonstrate further evidence of this egregious cover-up, but it also shows that Williams
did not tell Dr. Boggs about the fall and head injury. Indeed, if Williams did so, as he testified, why
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would Dr. Boggs call the Detention Center to ask about special circumstance
William Hayes (hereinafter “Hayes”) was a University of Kentucky (“UK”) Police Officer
assigned to the UKER on the night in question. Hayes testified that, per UK policy, he is required
to notify the police when a patient comes into the ER who appears to be the victim of a “violent
crime,” and that this was precisely what he did when Gerald arrived at the UKER. (Hayes Depo.pp.
7-9.) (Cited portions of Hayes’ deposition are attached hereto as Exhibit 9.). Hayes testified that he
did not recall anyone from the Fayette County Detention Center having any discussions with the
medical staff that evening, and Hayes certainly was not told that Gerald had fallen and hit his head
at the jail. (Id., p. 28). Hayes went on to note that Gerald was brought in to the UKER by the
emergency care (“EC”) staff, and that he did not even recall there being an officer from the jail with
the EC staff when they arrived. (Id., p. 33).
Patty Hatton was the nurse who allegedly treated Gerald at the Detention Center throughout
the night in question. After Gerald was found non-responsive and the EMTs summoned, Hatton
prepared a form known as a “Healthcare/Emergency Room Referral.” (CMS Healthcare/Emergency
Room Referral Form attached hereto as Exhibit 11; Hatton depo. pg. 95.) (Cited portions of
Hatton’s deposition are attached hereto as Exhibit 10.) Hatton testified that this form would have
gone with Gerald when he went to the emergency room. (Hatton depo., p. 96). Even though Hatton
allegedly knew that Gerald fell and struck his head, and even though she testified that she assessed
Gerald after this fall, there is absolutely no mention of the fall or head wound in this Emergency
Room Referral.
Every single witness in this action who has testified regarding this topic indicated that it is
imperative for an emergency room team to get an accurate history, particularly when dealing with
6

someone who has sustained a head wound. While this evidence goes primarily to the issues of
medical negligence and deliberate indifference, the fact remains that these Defendants attempted to
hide the fact that Gerald suffered a head wound at their facility, even when that information was
medically necessary. The attempted cover-up failed only because third party witnesses came
forward. The Detention Center told the newspaper the cover-up occurred because “there are
procedures to follow.”
3. Cover-up to Gerald’s Family
Doris and Bob Arnold, Gerald’s mother and step-father whom Gerald lived with, did not find
out that Gerald had been taken to the emergency room from Detention Center staff. They found out
from a woman who worked with pre-trial services at 4:30 a.m., nearly an hour and a half after the
Detention Center sent Gerald to the emergency room.
Q. How did you find out that Gerald was in the hospital
A. A lady from pretrial called, which I didn’t know that at the time who she was.
She just asked me if I knew Gerald was in jail, and I told her, no, I didn’t, which I
didn’t. And she said he had been arrested for I – EI, I think.
Q. AI maybe
A. AI. And that he was unconscious and they couldn’t get him to come to and
he was on a respirator and he had gone to the hospital and she couldn’t tell me what
hospital.
Q. At the time you said you didn’t know who it was
A. No.
Q. Do you know about what time it was that she called
A. I think it was around 4:30.
Q. Then after you got that call, what did you do
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A. I woke my husband up and told him and he called star 69 and it rang back into who
called and it was pretrial services.
(Doris Arnold Depo. pp. 84-85) (Cited portions of Doris Arnold’s deposition are attached hereto as
Exhibit 12.)
Q. Now, Mrs. Arnold said that she got a phone call about 4:30 the next morning
and that she then woke you up; is that right
A. She woke me up, yes.
Q. Take us through what happened after that.
A. She woke me up somewhere around 4:30, 4:35, by my clock next to the bed. ...
Anyway, she was in tears. You know, she was very distraught. She said some lady just
called and said that they had taken Gerald from the jail. He was arrested for AI, and they had
taken Gerald from the hospital on a respirator. ...
A. Well, then after I got her cooled down, I got my clothes together and got dressed and
then I said, well, if he was taken out in an ambulance on a respirator, didn’t say hospital. I
said, obviously he went to the hospital, but where And I thought, well, if he was in the jail,
possibly it would be some kind of a state-related institution, so I dialed the U.K. medical
center...
A. I called the U.K. hospital and a gentleman answered the phone and I asked if Gerald
Cornett was – had been admitted, and he didn’t say anything. And the next thing I know
there was a doctor on the telephone, it was Dr. Tibbs, and he said Gerald was in there with
a massive brain hemorrhage and he needed to be operated on immediately ...
(Bob Arnold Depo., pp 51-53) (Cited portions of Bob Arnold’s deposition are attached hereto as
Exhibit 13.)
Kristine LaFoe, the third shift commander, did not even want to notify Gerald’s family that
he had been taken to the hospital, purportedly because this posed a “security risk” to her transporting
officer. In fact, she was upset enough at the pre-trial officer for telling Gerald’s family that she told
the pre-trial officer that her actions were a security risk for the transporting officer.
8

At approximately 0435 I went into Pre-Trial to talk to the Pre-Trial officer (Shameka)
and advise her that when she talks to the Judge regarding Mr. Cornett and if he is
unsure of why we are wanting a judicial release that I would be willing to explain
more to him, she then advised me that she had called Mr. Cornett’s family. When
I asked her why she called that it was a security risk for my transporting officer, she
stated that they should know.
(8/15/05 Memorandum from Kristine LaFoe, attached hereto as Exhibit 14.)
Later that same morning, prior to 8:00 a.m. which is the end of the Detention Center’s third
shift, and while trying to piece together the events of the night before, Bob Arnold went to the
Detention Center to find out what happened. At first, the guard on duty at the reception counter only
told Mr. Arnold that the Detention Center did not have Gerald. Only when Mr. Arnold told the
guard that pre-trial had called him did the guard give any information, and even then he only showed
Mr. Arnold Gerald’s mug shot and told Mr. Arnold Gerald had been “released” at 7:12 a.m. and that
Mr. Arnold “might” try the hospital to find Gerald. Beyond that, the guard specifically informed Mr.
Arnold, “I’m sorry. I cannot tell you any more than that.”
Q. What time did you leave there and go to the jail
A. About 7:25.
..
Q. What did you do when you got to the jail
A. I asked if they – I asked if Gerald Cornett had been arrested. And there was two
gentlemen sitting in kind of in a rotunda shape like that and the person said – asked the name
and he punched it in and said, no, said, we don’t have him.
Q. And anything else that you talked to them about
A. In the jail
Q. Anything else you talked to them about at the jail
A. No, I just asked them, I said, well, why would pretrial services call me, you know,
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about him getting bail And they said, well, pretrial services called you I said, yes. Then
the fellow said, well, let me look again here. Then he punched in some – the keyboard and
it came up on the CRT and he turned it about a quarter way and there was Gerald’s mug shot.
Q. I’m sorry, he did what
A. Gerald’s mug shot.
Q. Oh, he turned the screen around so you could see it Is that what you’re saying
...
Q. Then did anything else happen What did you do after that
A. Just asked him where he might be. If they had his mug shot, where would he be He
said, well, we released him at 7:12.
Q. Anything else
A. I just asked him where I might find him at, whether they had any idea where I might
locate him if they released him, and he said, well, you might try the hospital. I asked them
why would I try a hospital. And they said, well, he was drunk when he came in here, said,
sorry, I can’t tell you any more than that and that was the end of the conversation.
Q. But you knew where he was
A. Of course I knew where he was at.
Q. So, why did you – why – I don’t understand why you would ask them that.
A. I happened to be involved individually in this, I thought. I wanted to find out what’s
happening. I’m not getting any information. I wanted to find out what in the world is really
going on, what happened, you know, was he drunk, was he arrested, where was he arrested
at I don’t have any idea. Only off that mug shot and that arrest sheet did I find out exactly
where he was arrested at. Up to that point I didn’t have a clue except the information we had
from the girl that said he was taken to the hospital.
(Bob Arnold Depo., pp. 59-62). Ultimately, after having been stonewalled by the jail and having
found out from the University of Kentucky Medical Center that he could not get more information
from them without an attorney present or a court order, Bob Arnold retained the undersigned
counsel. (Id., p. 70-71).
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The remainder of this memorandum sets forth the facts the Arnolds have uncovered, as they
relate to the claims of excessive force, since they first started to piece together what happened that
night. Although the evidence is circumstantial, there is certainly sufficient evidence for a jury to
determine that Gerald left the Detention Center with new bruises and six broken ribs because he was
beaten by Clarence McCoy and/or Maria Jones. Since the Detention Center employees have covered
up the events of that night, and have therefore been unable to pose a reasonable explanation for how
Gerald might have broken his ribs at their facility, this case cries for a jury to determine what
happened.
B. Events of August 14 and 15, 2005.
Despite the Defendants’ attempts to argue otherwise, there is uncontradicted testimony in the
record as to what Gerald was doing, and who he was with, prior to being arrested on August 14,
2005. Terry McClanahan 4 testified that Gerald drove over to Terry’s house at around 9:00 a.m. on
August 14, 2005 for the purpose of working on Gerald’s car. (T. McClanahan Depo. p. 17.) (Cited
portions of Terry McClanahan’s deposition are attached hereto as Exhibit 15.) Terry and Gerald
undoubtedly drank beer on the day in question, and around 11:00 p.m. that night, Gerald decided to
leave his car and walk home because he had been drinking. (Id., p. 26). According to Terry, when
Gerald left, he was fine. There was nothing wrong with him. (Id., p. 64). Gerald did not complain
of pain at all that day, and did not indicate that he had been assaulted to Terry. In fact, Terry noted
that if anyone had beaten Gerald up, Gerald would have told Terry about it. Gerald had no bruises
that Terry could see that day. (Id., pp. 54, 68). The uncontradicted testimony from Terry is that
Gerald left his home with no bruises, and certainly no major trauma like that necessary to cause six
4 Terry McClanahan lived in the same neighborhood as Gerald, a mere 6-7 minute walk. (Id., pp. 40-41).
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(6) broken ribs, or the bruising seen in the photographs.
Officer Joseph Greene encountered Gerald sitting in the middle of Ridgepoint Run Road at
approximately 11:20 p.m. on August 14, 2005. (8/14/05 Memorandum from Officer Greene,
attached hereto as Exhibit 16.) Gerald was not visibly bleeding and did not make any complaints
that would have led Officer Greene to believe that he had broken ribs. (Id.; Greene Depo., p. 95-96.)
(Cited portions of Greene’s deposition are attached hereto as Exhibit 17.).
An emergency care unit arrived at approximately 11:23 p.m. (Greene Memorandum). The
unit consisted of Michael Gosper, Roger Hibbits, and Chad Land. By the time the unit arrived,
Officer Greene had moved Gerald from the middle of the road to the curb. (8/20/05 Memorandum
from Gosper, attached hereto as Exhibit 18.) The emergency unit only performed a general
assessment because Gerald was alert and oriented, told them he was not hurt, and refused their help.
(Id.; Gosper Depo. p. 15.) (Cited portions of Gosper’s deposition are attached hereto as Exhibit 19.)
Gerald denied falling and told the emergency crew there was no reason to suspect trauma. (Gosper
Memorandum). Gerald did not have visible bruises or blood on his clothing and did not look like
he had been assaulted. (8/26/05 Memorandum from Hibbits, attached hereto as Exhibit 20; Hibbits
Depo., pp. 58-59.) (Cited portisions of Hibbits’ deposition are attached hereto as Exhibit 21.)
Furthermore, Gerald did not appear to have any signs or symptoms of broken ribs, one of which
would have been difficult, or labored, breathing. (Gosper Depo., p. 41; Hibbits Depo., p. 58). Mr.
Hibbits performed airway and breathing observations by talking to Gerald. Because Gerald was able
to talk to Hibbits and was not out of breath, Hibbits noted that Gerald’s airway was open and that
his breathing was non-labored and regular at about 18 per minute. (Gosper Depo., p. 15, 47-48;
Hibbits Depo., p. 32; Gosper Memorandum).
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Mr. Land checked for signs of blunt trauma that might cause the jail to turn Gerald down.
Mr. Land did not see any lacerations, abrasions, bruising, or any other signs of trauma on Gerald.
Based on Mr. Land’s assessment, he did not see any signs that Gerald might have broken ribs. (Land
Depo. pp. 18-24.) (Cited portions of Land’s deposition are attached hereto as Exhibit 22.) Had
there been any bruising, the emergency crew would have treated Gerald as a trauma patient, as
someone who might have fallen. They would have put him on a stretcher and transported him to the
hospital, not to the Detention Center. (Id. at 24-25).
After the emergency care unit left, Officer Greene talked with Gerald for approximately 45
minutes until the police wagon arrived to transport him to the Detention Center. (Greene
Memorandum). Officer Marvin Washington arrived with the police wagon at 12:04 a.m. on August
15, 2005. (8/14/05 Memo from Washington, attached hereto as Exhibit 23.) When Washington
arrived, Gerald did not appear to be injured, beaten up, or traumatized. (Washington Depo. p. 7, 22-
23.) (Cited portions of Washington’s deposition are attached hereto as Exhibit 24.) Gerald did not
say anything to Officer Washington that indicated he had suffered injuries or broken bones. (Id., p.
24, 41). In fact, Officer Washington did not see any bruises on Gerald at all. (Id., p. 23). Officers
Washington and Greene then transported Gerald to the Detention Center. (8/14/05 Memorandum
from Greene). While Officers Washington and Greene transported him, Gerald was seated upright
and secured by a restraint bar. (Aug. 29, 2005 E-mail from Washington to Kenneth Stuart, attached
hereto as Exhibit 25.) To the best of Officer Washington’s knowledge, there was no indication that
Gerald received any injuries during transport. (Id.).
The Detention Center processed Gerald at approximately 12:42 a.m. (8/15/05 Officer’s
Activity Report, attached hereto as Exhibit 26; 8/15/05 Memorandum from Anthony Estep, attached
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hereto as Exhibit 27; 8/15/05 Incident Report from Anthony Estep, attached hereto as Exhibit 28.)
Defendant Anthony Estep worked at the Triage counter that night and was one of the first detention
center employees to deal with Gerald. (Estep Depo. p. 16.) (Cited portions of Estep’s deposition are
attached hereto as Exhibit 29.) The triage officer performs an initial assessment and looks for
observable issues with a potential inmate, such as cuts, scrapes, bleeding, or signs of painful
symptoms such as those associated with broken ribs. (Id., p. 19-20; 52-53). As triage officer, Estep
would have documented any major bruising. Estep, who saw the photos of Gerald in the newspaper,
did not see any of these bruises when Gerald came to the Detention Center. Assuming Gerald was
wearing shorts, Estep would have at least been able to see the bruising on his thigh and knee. (Id.,
p. 29-36). Gerald also did not exhibit any signs or symptoms of broken ribs, such as painful
breathing and difficulty with mobility, when he came to the Detention Center. Estep would have
recognized these symptoms because he himself had broken his ribs in the past as a result of a training
incident. Had Gerald exhibited these symptoms, Estep would have documented them because they
are the type of observable issues for which he was supposed to look. (Id., p. 52-53, 63).
Ronald Gaunce first saw Gerald when he was walking toward the passive intake area after
triage. (Gaunce Depo. p. 43.) (Cited portions of Gaunce’s deposition are attached hereto as Exhibit
30.) Gaunce had broken his ribs in the past and testified that it was hard to breathe and very painful.
(Id., p. 54). When Gaunce first saw Gerald, Gerald did not have any signs or symptoms that led
Gaunce to believe Gerald had broken ribs. (Id., p. 54).
According to Clarence McCoy, when he first entered the Detention Center, Gerald did not
state that anybody had beat him up and did not complain of any pain. (McCoy Depo. p. 25.) (Cited
portions of McCoy’s deposition are attached hereto as Exhibit 31.) According to McCoy, who had
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prior paramedic training, Gerald did not look like he had been injured. (Id., p. 15, 25). McCoy did
not notice any bruises on Gerald at all. (Id., p. at 28). During this first encounter, Gerald did not
look to McCoy like he might have broken ribs. (Id., p. 46).
According to her medical chart, Nurse Hatton allegedly first assessed Gerald in intake at
12:45 a.m. (Detention Center Progress Notes, p. 1, attached hereto as Exhibit 32.) Gerald walked
down to the nurses’ station for this initial assessment. (Hatton Depo., p. 46-47). Gerald was alert
and oriented and denied any medical problems. (Detention Center Progress Notes, p. 1). Gerald,
who was wearing a short-sleeved shirt and might have been wearing shorts, had several faint, yellow
bruises on his arms and legs. (Id.; Hatton Depo., p. 46, 103-104). During this initial assessment,
Nurse Hatton checked Gerald for physical injuries related to alcohol abuse. (Detention Center
Progress Notes, p. 1; Hatton Depo., p. 46). When Hatton initially assessed Gerald, she did not check
to see if he might have broken ribs. However, this was in part because Gerald did not exhibit any
signs of broken ribs, such as short-windedness, holding his ribs, or complaining of rib pain. (Id., p.
51-52). Nurse Hatton did not see any signs at all of any injury requiring hospital treatment when she
first saw Gerald. (Id., p. 120). In fact, she explicitly testified that she does not believe Gerald had
broken ribs when he got to the Detention Center. (Id., p. 52).
At approximately 1:15 a.m., Gerald fell and hit his head. The circumstances of this fall have
already been described in detail in the Plaintiff’s response to the Governmental Defendants’ prior
motion for summary judgment on Plaintiff’s deliberate indifference claims. The fall is largely
irrelevant to this motion, except that the evidence shows that Gerald did not suffer his broken ribs
as a result of this fall. When Gerald fell, he hit his head, not his side. (Gaunce Depo. p. 55). Nurse
15

Hatton allegedly 5 assessed Gerald after this fall and did not document any broken ribs. (See 8/15/05
Memorandum from Gaunce, Ex. 33; Detention Center Progress Notes, Ex. 32). Kenneth Isaacs, who
first saw Gerald after the fall, testified that Gerald did not give any indication that he might have six
fractured ribs on his left-hand side. (Isaacs Depo. p.33.) (Cited portions of Isaacs’ deposition are
attached hereto as Exhibit 34.)
After the fall, Kenneth Isaacs escorted Gerald to Cell P-7. (8/15/05 Memo from Gaunce;
Isaacs Depo., p. 44). Gerald took off his shoes and laid down on the floor on his stomach. (Isaacs
Depo., p. 36, 44-47). Isaacs then shut the door to Cell P-7. (Id., p. 47). According to Isaacs, Gerald
did not look like he had undergone any trauma. (Id., p. 35).
At approximately 2:40 a.m., Clarence McCoy entered Cell P-7, allegedly to test Gerald’s
blood alcohol level. (8/15/2005 Incident Report from Maria Jones, attached hereto as Exhibit 35;
8/15/2005 Memorandum from Maria Jones, attached hereto as Exhibit 36.) Although there is a
portable machine for testing BAC, Jones could not recall whether or not McCoy took it in with him.
(Gaines Depo. p. 66.) (Cited portions of Gaines’ deposition are attached hereto as Exhibit 37.)
McCoy was in the cell alone with Gerald for a few seconds, until Maria Jones, hoping to obtain
fingerprints, entered the cell to assist McCoy. (Jones Incident Report; Jones Memorandum; Gaines
Depo., p. 59). When Jones entered the cell, McCoy was “kneeled down beside Mr. Cornett and was
kind of shaking his shoulder a little bit...” (Gaines Depo., p. 60). McCoy told Jones that Gerald
“was not responding to his efforts to wake [Cornett] up.” (Jones Memorandum). According to
Jones, Gerald was not waking up, so McCoy first applied force in the form of a “sternum rub.”
(Gaines Depo., p. 61). A “sternum rub” is where a guard rubs the knuckles of his or her hand,
5 As the Court may recall, there is evidence that Nurse Hatton never medically assessed Gerald at any point.
16

sometimes hard, across the sternum, or the center of the chest. (Gaines Depo., p. 43). Jones and
McCoy then applied additional force to Gerald, described by Jones as a “clavicle notch.” (Jones
Memorandum; Gaines Depo., p. 61). A “clavicle notch” is “a pressure-point technique where you
use your thumb, and up by the collarbone you press, and it causes a pain reflex.” (Maria Gaines
Depo., p. 42-43). According to Gaines, after these techniques failed, either she or McCoy notified
other guards to call medical. (Id., p. 61).
McCoy’s narrative of what happened differs slightly from Jones’:
On the listed date and time [August 15, 2007 at 2:42 a.m.], this officer entered P7 to
test the listed subject on the BA for an AI charge. The subject was un-responsive to
verbal commands to stand up and exit the cell. Cpl. Jones arrived and the subject
was raised to a seated position by both officers, where he was still un-responsive, the
subject was laid back down. A sternum rub was preformed [sic] by this officer with
no response from the subject. At that time (0245) I informed Lt. Lafoe to have a
nurse responded [sic]. ...
(8/15/2005 Incident Report from McCoy, attached hereto as Exhibit 38.) McCoy’s August 15, 2005,
memorandum stated essentially the same thing, except it added that McCoy performed a pressure
point to Gerald’s clavicle notch on the right side, and that Jones performed the same technique on
Gerald’s right side. (8/15/2005 Memorandum from McCoy, attached hereto as Exhibit 39.)
According to McCoy, a clavicle notch is a “pain compliance” technique. “Pain compliance is to
get someone to do something that you’re wanting them to do and they’re refusing...” (McCoy
Depo. p. 39.) (Cited portions of McCoy’s deposition are attached hereto as Exhibit 31.) 6
A pain
compliance technique is something a guard would use on someone who was not obeying his or her
commands. (Id.). The sternum rub is also a pain compliance technique, used mostly for
6 Even McCoy was unwilling to testify that Gerald was refusing to do what McCoy wanted. Indeed, there has
not been a single witness who has come forward in this case who was willing to testify that Gerald was non-cooperative,
or non-complaint in any way, or that Gerald somehow deserved being subjected to “pain compliance” techniques.
17

unresponsive subjects. (Id., p. at 43-45). The clavicle is the bone at the lower part of the neck that
goes to the shoulder. McCoy claims he performed a clavicle notch by “poking” his finger beside the
collarbone and applying pressure on the inside of the collarbone. He would apply pressure on the
inmate until he got compliance. (Id., p. 40-43). When he performed this pain compliance technique
on Gerald, McCoy applied “enough pressure that [he thinks Gerald] should have responded.” (Id.).
Both Gaines and McCoy testified that they were trained in these pain compliance techniques
by the Detention Center. (Gaines Depo., p. 43; McCoy Depo., p. 41). Kenneth Isaacs, on the other
hand, testified that, although he knew how to do a sternum rub, he was not trained to do so by the
Detention Center. (Isaacs Depo., p. 70-71). Furthermore, although McCoy claims he was trained
to use the clavicle notch on an unresponsive inmate, he also testified that he was not trained to
perform this technique as part of his life-saving efforts when he was trained as an EMT. (McCoy
Depo., p. 41). This raises some question, then, as to whether the clavicle notch is an effective or
appropriate technique to use on a person who is supposedly unresponsive.
Either Gaines or McCoy advised Kristine LaFoe, commander of the third-shift intake, that
Gerald was unresponsive at 2:45 a.m. (McCoy Memorandum; McCoy Incident Report; 8/15/2005
Incident Report from LaFoe, Ex. 40; 8/15/2005 Memorandum from LaFoe, Ex. 14; LaFoe Depo.,
Ex. 8, p. 15, 51). Therefore, based on their testimony, McCoy and Gaines were alone with Gerald,
unseen by others, and applying “pain compliance” techniques for approximately three to five
minutes. After LaFoe learned that Gerald was un-responsive, Detention Center staff notified Nurse
Hatton. (LaFoe Incident Report; LaFoe Memorandum).
According to Nurse Hatton’s progress notes, Gerald was lying on his back with his eyes half
open, unresponsive to voice or ammonia. He had urinated on himself. (Detention Center Progress
18

Notes, Ex. 32, p. 1). According to Nurse Haupt’s progress note, Gerald was “unresponsive to painful
stimuli.” (Id., p. 3). Nurse Hatton testified that, when she entered Cell P7, Gerald was on his back,
and his eyes were half open. He had urinated on himself, and, although he was still breathing, he
would not wake up. (Hatton Depo., Ex. 10, p. 78). When Hatton entered, there were two officers
standing in the cell. (Id.). While treating Gerald at this time, Hatton did not do anything that she
believes would have left a bruise. She did not use any techniques to elicit a pain response, and did
not perform CPR because Gerald was already breathing. (Id., p. 79). Nobody at the jail performed
CPR. (Id.). If the emergency unit performed CPR, they did it outside the jail, while Gerald was in
the ambulance. (Id., p. 80). 7 Hatton did not see anybody do anything that could possibly have left
a bruise on Gerald. (Id.). Maria Jones similarly testified that all she saw Nurse Hatton do was “take
his oxygen level with the machine, and a blood pressure, she used an ammonia capsule, and I saw
her cup her hand over his nose.” (Gaines Depo., p. 44; see also McCoy Depo., p. 72 (testifying that
CPR was not used)).
The Detention Center called a Code 101 at 2:52 a.m. An emergency unit arrived at 2:58 a.m.
and left with Gerald, escorted by Robert Williams, at 3:13 a.m. (LaFoe Incident Report; LaFoe
Memorandum). According to Williams, he recalls the EMTs starting an IV and trying a sternum rub,
pinching Gerald on the chest, and shaking his shoulder to try to wake him up. (Williams Depo., Ex.
7, p. 24-25). Williams was also with Gerald at the UK Hospital, until Gerald was taken in for
surgery to remove blood and relieve pressure from his brain at 5:20 a.m. (8/15/2005 Memorandum
from Williams, attached hereto as Exhibit 41.) Williams does not recall any incident, during the
7 As discussed in the paragraph below, the emergency unit did not perform CPR outside the jail while Cornett
was in the ambulance.
19

entire time that he was with Gerald, that would have caused Gerald to suffer six broken ribs on his
left side. (Williams Depo., p. 27-28).
B. UK Hospital
When Gerald arrived at UK Hospital, William Hayes, a UK police officer assigned to the
emergency department, encountered him. (Hayes Depo., p. 6-7). The Lexington fire department
emergency care unit brought Gerald in and took him to the trauma bay, trauma bed D, where Hayes
first saw him. (Id., p. 8). Hayes called the Lexington police department because the emergency
department has a reporting requirement when it appears that someone is the victim of a crime,
particularly a violent crime. (Id., p. 7-8). He most likely did this at the behest of the emergency
department staff. (Id., p. 32). Hayes came to the conclusion that Gerald might have been the victim
of a violent crime because of the bruising on his chest. (Id., p. 9). Although the Defendants rely on
Hayes’ testimony that the bruising appeared to be a day or two old, Hayes admitted that he has not
been trained to identify how old a bruise is. (Id., p. 11). A patrolman from the Lexington police
department came in response to Hayes’ call, but the officer told Hayes he did not know exactly how
to proceed because Gerald was non-responsive at the time. (Id., p. 21).
According to the emergency department’s notes, taken by Dr. Boggs, “[t]here were multiple
bruises on [Gerald’s] arms, chest, back, and thighs with indications of both old and new assaults or
bruising from some kind of trauma.” (Boggs ER Notes, Ex. 3, p. 1). According to Dr. Phillip Tibbs,
the Attending Neurosurgeon at the emergency room, some of the bruises were “purplish” and “the
gold and purple you’ll get from an old bruise, and some of them were fresher bruises, so it looked
like he had some bruises and abrasions of different ages on his body as a whole.” (Tibbs Depo. p.
26.) (Cited portions of Tibbs’ deposition are attached hereto as Exhibit 42.) A CT scan of Gerald’s
20

head showed a marked acute subdural hematoma. (See Medical Records, Exhibit 3.). Emergency
room physicians performed a craniotomy (brain surgery) to evacuate Gerald’s subdural hematoma.
(See Medical Records, Exhibit 3.) The operative report describing the emergency surgery does not
mention anything about any activity performed on Gerald’s chest. (Id.). After the operation,
Gerald’s prognosis was poor. Dr. Phillip Tibbs, the emergency room attending neurosurgeon,
referred Gerald to Neurosurgery ICU. (8/15/05 Neurosurgery Attending Note, Ex. 3). On August
16, 2006, Dr. Tibbs discussed Gerald’s condition with his mother and informed her that Gerald had
a life-threatening condition. After Dr. Tibbs informed them that Gerald’s prognosis was very poor,
if not zero, for good quality survival, Gerald’s family ultimately declined life support and “heroic
measures.” Therefore, the Neurosurgery ICU withdrew Gerald’s ventilator and transferred him to
the Markey Cancer Center. (8/16/05 Neurosurgery Attending Notes, Ex. 3; Tibbs Depo., p. 28-30).
From that point forward, medical staff at the Markey Center provided supportive care and gave
Gerald morphine for occasional agitation until he passed away on August 20, 2005. (UK Medical
Records, Ex. 3). None of the University of Kentucky medical records indicate that any medical staff
at the University of Kentucky ever performed CPR on Gerald.
C. Autopsy Findings
Dr. Gregory J. Davis performed Gerald’s autopsy. In addition to the blunt force injuries to
Gerald’s head, Dr. Davis also discovered evidence of blunt force injuries to Gerald’s chest in the
form of six fractured anterolateral ribs on Gerald’s left side. Although Dr. Davis found that the
cause of death was a blunt force injury to the head consistent with a fall, he also listed the left
anterolateral rib fractures as one of his major findings. (Final Autopsy Report, Ex. 2, 12/7/05).
Dr. Davis ultimately testified that he did not know what caused Gerald’s broken ribs but that
21

they could have resulted from a fall, from CPR, or from something like a “kicking injury.” (Davis
Depo. p. 24-25, 65, 67.) (Cited portions of Davis’ deposition are attached hereto as Exhibit 43.)
After examining the evidence in this case, we can rule out CPR and a fall. Gerald’s broken ribs were
on the side, a different place from where one normally tends to see ribs broken as a result of CPR.
(Id., p. 66-67). We also know from the evidence (a) that Gerald did not have broken ribs before he
arrived at the Detention Center; (b) that nobody from the Detention Center, from the emergency unit,
or from the emergency room performed CPR on Gerald because he never stopped breathing; and (c)
that Gerald did not fall on his side. Therefore, the only remaining possible cause of Gerald’s broken
ribs, based on Dr. Davis’ testimony, is a kicking-type, or assault-related, injury that occurred at the
Detention Center.
Dr. Davis also testified he did not see any physical evidence consistent with an assault.
However, he admitted he was looking for patterned injuries and could not rule out an assault. (Id.,
p. 35). Dr. Davis also testified that, although he did not see any evidence of an intentional injury on
the body in the form of a bruise, a scrape, or a tear in the skin, this was based in part on his
assumption that the bruising on Gerald’s chest was consistent with the bruising on alcoholics who
fall. (Id., p. 35, 64-65). Dr. Davis did not date the bruises, but he believed most of them looked
contemporaneous with around the time of Gerald’s fall. (Id., p. 77-78).
In response to the numerous witnesses who “dated” the bruises as occurring prior to Gerald’s
stay at the Detention Center, Dr. Davis testified, “[D]ating of bruises is extremely problematic. It’s
more the stuff of Hollywood. All I can say is that purple bruises occur sooner, green and yellow and
brown occur later. But beware of any expert that ever tries to date a bruise for you. They are
pretending to know more than they [do].” (Id.).(Emphasis added).
22

D. Additional Expert Testimony
According to Dr. George Nichols, the Defendants’ expert neurologist, at least some of the
bruises on Gerald’s body were caused by the same trauma that caused his rib fractures. (Nichols
Depo. p. 48.) (Cited portions of Nichols’ deposition are attached hereto as Exhibit 44.) The bruises
are a blunt-force injury and are “obviously” produced by one or more objects that have a line-like
or linear surface on them. (Id., p. 47). In Dr. Nichols’ opinion, these rib injuries, especially if
associated with the underlying rib fractures, more likely than not resulted from “the application of
a blunt-force injury due to some type of beating.” (Id., p. 49-50). It is Dr. Nichols’ opinion that
these bruises and rib fractures pre-dated Gerald’s admission to the Detention Center. (Id., p. at 22-
23, 37). However, the undisputed evidence is that Gerald did not complain of or exhibit signs or
symptoms of rib fractures before he was admitted to the Detention Center. Therefore, the ultimate
conclusion to be drawn from Dr. Nichols’ testimony is that Gerald’s rib injuries were most likely
caused by a beating at the Detention Center.
Further, the sole basis for Dr. Nichols’ opinion that the rib fractures predated Gerald’s
admission to the Detention Center was that he did not see any incident that might have caused the
rib fractures documented in the jail materials that he had seen. (Id., p. 24-26). 8
Furthermore, Dr.
Nichols testifies that the word “acute,” as used in the autopsy report, indicated that the rib fractures
happened recently. (Id., p. 48-49). There is no evidence in the medical records of callused formation
8
Q. ...Your opinion that ... these rib fractures predated his admission to the jail ... that’s based
upon the fact that you didn’t see anything in the materials that led you to believe he suffered a trauma
that could have caused those types of injuries; is that fair
A. Yes.
Q. Okay. And you don’t base that opinion on anything else
A. Correct.
(Id. at 25-26).
23

or any form of healing of the fractured ribs. (Id., p. 49). Since there is evidence, from numerous lay
witnesses and from Nurse Hatton, that Gerald did not have rib fractures before he was admitted to
the Detention Center, there is good cause for a jury to doubt Dr. Nichols’ assumption that Gerald’s
rib fractures predated his admission to the Detention Center.
The Defendants represented in their Motion that “the expert testimony [from Dr. Nichols]
will be that the trauma which was the cause of the bruising noted at the time of Cornett’s admission
to the University of Kentucky Medical Center occurred prior to his detention.” (Memorandum in
Support of Motion for Summary Judgment at 23, 28-29). First and foremost, there is a factual
dispute here because Dr. Davis testified that he believed most of Gerald’s bruises looked
contemporaneous with or around the time of his fall. Second, Dr. Nichols did not reach his opinion
regarding the date of the bruises from looking at pictures. He reached his opinion solely based on
“the charting that was present in the emergency department and in the neurosurgery
resident’s note.” (Id., p. 44). Keeping in mind Dr. Davis’ caution that expert testimony dating
bruises to a specific time is, for all intents and purposes, a voodoo science, it is simply preposterous
to accept that Dr. Nichols can accurately date a bruise based solely on written charts without pictures.
Nichols testified that caucasians like Gerald take at least four hours to develop the beginning of a
visible bruise, but that alcoholics bruise faster than most people. (Id., p. 39). Bob Arnold took
pictures of Gerald’s bruises on August 18, 2005, more than three days after Gerald’s stay at the
Detention Center. (B. Arnold Depo., p. 17). When Dr. Nichols reviewed these pictures, he
admitted that he could not say that the bruises depicted in those photographs were caused by injuries
that predated his incarceration. (Nichols Depo., p. 45). Therefore, Dr. Nichols’ testimony that, in
medical probability, all such injuries that caused Gerald’s bruising predated his admission to the jail,
24

is simply not worthy of belief. (See id., p. 43).
Dr. Michael G. Balko, the Plaintiff’s expert neuropathologist testified that his only opinion
about the timing of the rib fractures is “that it’s not part of the fall or his head injury, and it’s acute.”
(Balko Depo. p. 110.) (Cited portions of Dr. Balko’s deposition are attached hereto as Exhibit 45.)
Acute means “they’re not healing rib fractures. He didn’t have them a week ago or a month ago.”
(Id.). In addition, Dr. Balko testified that Gerald’s rib fractures seriously interfered with Gerald’s
respiration and ultimately contributed to his death:
Well, we have multiple rib fractures. And that number of rib fractures seriously
interferes with normal respiration. If you’ve broken one rib, you know how painful
it is. And if you’ve got multiple rib fractures, it destabilizes that part of your chest
cavity and interferes with normal respiration. So it is a pathologic condition that
certainly contributes to death. Is it the cause of death No. It’s a contributing cause
of death.
(Id., p. 118). In Gerald’s case, the rib fractures contributed to his death because they interfered with
his normal respiration. (Id.). Balko also testified that he would expect, if Gerald had rib fractures
that were fairly new, that Gerald would either complain of pain or appear to be in respiratory distress.
“A broken rib is a painful condition.” (Id., p. 119-20). When asked whether there was any evidence
of Gerald having difficulty breathing at the Detention Center, Balko testified that he had read the
eyewitness reports and reports in general and did not have a clear picture as to what transpired in the
jail. (Id., p. 119). When asked whether CPR could have caused Gerald’s rib fractures, Balko
testified, “CPR can cause rib fractures, but usually not in that distribution. That appears to be
traumatic as opposed to resuscitative. We see resuscitative rib fractures. This didn’t look
resuscitative to me.” (Id., p. 121).
Dr. Nichols and Dr. Balko both agree Gerald Cornett’s fall at the Detention Center did not
25

cause his rib fractures. According to Dr. Nichols, he knows of no structure that was described when
Gerald fell that would have caused rib fractures. (Nichols Depo., p. 23). According to Dr. Balko,
“[t]he rib fractures are the result of blunt chest impact not related to the fall.” (Balko Expert Report,
attached hereto as Exhibit 46.) According to Dr. Balko, they are not likely the same event because
a person cannot fall back and hit their head where Gerald did, while at the same time hitting the ribs
where Gerald suffered the fractures. (Balko Depo., p. 62).
E. Stephanie Mogan’s Testimony
The Defendants seem to argue that Stephanie Mogan’s testimony that she did not see any
guards enter Cell P-7 prior to “the incident” somehow prevents the Plaintiff from arguing that a
Detention Center guard or guards did in fact enter Cell P-7 and beat Gerald Cornett. This is simply
untrue. Even now, more than three and a half years after the fact, the Defendants have not explained
how Gerald Cornett possibly came to the Detention Center relatively unharmed and left with six
broken ribs. In her affidavit, Mogan testified (a) that she could not see into cell P-7 once staff
entered into it; (b) that a female Detention Center employee entered P-7 to take Gerald’s fingerprints;
(c) that no one entered Cell P-7 prior to this incident; and (d) that, when the female Detention Center
employee left Cell P-7, she stated that Cornett did not even respond to pain. (Mogan Affidavit,
attached hereto as Exhibit 47, 14, 15, 18). Mogan elaborated on the events of that night during
her deposition. Although it was right in front of her, she could not see into Cell P-7 at any point.
(Mogan Depo. p. 44-45, 48.) (Cited portions of Mogan’s deposition are attached hereto as Exhibit
48.) After Gerald fell, he had his picture taken, and the guards then had him take off his shoes and
put him in cell P-7. (Id., p. 73-75). After Cornett was placed into Cell P-7, Mogan sat and watched
the entrance to the cell, which was right in front of her. (Id., p. 76). “[N]obody went in any of those
26

cells after he was put in there until they called for him to have his fingerprints done.” (Id.). To
the best of Mogan’s recollection, a female officer went in there momentarily the final time and came
out hollering for assistance. (Id., p. 77-78).
As discussed above, Maria Jones claims that she entered Gerald’s cell at approximately 2:40
a.m. to take his fingerprints and reported that Gerald was un-responsive at 2:45 a.m. She also
testified that Clarence McCoy was already in the cell at that time. Assuming Stephanie Mogan is
correct, and only Maria Jones entered the cell, this is still sufficient, combined with every other piece
of evidence, for the excessive force claim to go to the jury against Maria Jones. Frankly, however,
it does not matter. McCoy and Jones both claim they went into Cell P-7, meaning McCoy’s presence
or lack thereof is a swearing contest and therefore a question for the jury. As stated above, the fact
that both McCoy and Jones testified that they were in Cell P-7 and that they applied force to Gerald
is sufficient evidence to preclude summary judgment on this issue.
F. Brian Rice’s Testimony
As the Defendants acknowledge, Brian Rice testified that he left the Passive Intake area
shortly after Gerald was placed in Cell P-7. (Rice Depo., p. 68, 82-83.) (Cited portions of Rice’s
deposition are attached hereto as Exhibit 49.) Therefore, Rice’s testimony that he did not see Gerald
mistreated is meaningless, seeing as how the excessive force occurred between approximately 2:40
a.m. and 2:45 a.m. Furthermore, Rice’s testimony that he personally has never been mistreated by
Detention Center staff is not relevant to this particular motion.
G. Criminal Excessive Force Charges Against McCoy and LaFoe
At first blush, it may seem improbable, even shocking, that government employees would
attempt to cover-up the events leading to a man’s death while in their care. However, on June 12,
27

2008, a grand jury in the Eastern District of Kentucky indicted Defendants LaFoe, Estep, and McCoy
(and two other Detention Center employees not parties to this action but who also worked on the
third shift in the Intake area of the Detention Center) for, inter alia, one count of conspiracy to
violate pre-trial detainees’ right to be free from excessive force. Although these alleged incidents
occurred between January 1, 2006 and October 1, 2006, if McCoy, Estep, and/or LaFoe are
ultimately convicted, their conviction will be relevant evidence of a common scheme or plan, in that,
in this case, McCoy used force on Gerald Cornett; wrote a false and misleading incident report; and
included “code” language describing the use of that force to make it sound innocuous and justifiable
rather than violent and unjustified. The indictment states:
Plan and Purpose of the Conspiracy
It was the plan and purpose of the conspiracy that officers working the third
shift in the Intake Area at the LFCDC would assault, injure, inflict pain upon, and
otherwise physically punish restrained or compliant pre-trial detainees at the LFCDC.
It was further part of the plan and purpose of the conspiracy that third shift
Intake officers at the LFCDC would falsely justify uses of force against detainees by
writing false and misleading incident reports in which they would falsely state that
the detainee had attacked or threatened the officers, thereby provoking the uses of
force.
It was further part of the plan and purpose of the conspiracy that third shift
Intake officers at the LFCDC created “code” language to describe uses of force that
made the incidents sound innocuous and justifiable rather than violent and
unjustified.
It was further part of the plan and purpose of the conspiracy that third shift
Intake supervisors at the LFCDC would review incident reports to ensure that officers
were employing the “code” language.
It was further part of the plan and purpose of the conspiracy that third shift
Intake supervisors at the LFCDC would sometimes participate in, watch, and/or
refuse to intervene in, unjustified uses of force against detainees, thereby
perpetuating an atmosphere at the LFCDC in which unlawful uses of force against
28

detainees were allowed to continue indefinitely and with impunity.
...
Overt Acts
(g) On or about May 19, 2006, defendant McCoy and persons known to
the grand jury wrote false official reports in which they created a false justification
for the assault on B.P.B.;
...
(j) On or about June 10, 2006, defendant McCoy and persons known to
the grand jury wrote false official reports in which they created a false justification
for the assault on B.P.;
...
(q) On or about September 13, 2006, defendants McCoy and Tyree,
along with persons known to the grand jury, wrote false official reports containing
the false justification they had agreed to before the assault of B.M. ...
(Indictment, attached hereto as Exhibit 50, p. 3-7). This Indictment is particularly troublesome
inasmuch as the Defendants now ask this Court to rely on their Incident Reports and Memoranda as
truthful and accurate statements of the events of August 15, 2005.
H. Various Red Herrings and Factual Inaccuracies Contained in the Defendants’ Papers
The Defendants argue that Mogan testified that once Gerald sat down in the passive intake
area, no Detention Center employee came to where he was sitting until he was called to have his
picture taken. (Defendants’ Memorandum in Support of Motion for Summary Judgment, pp. 15-16).
This argument is factually false. Mogan swore in her Affidavit (Exhibit 47 hereto) as follows:
“Mr. Cornett was seated in the row behind me, third seat from the right. Mr. Cornett
fell asleep slouched over in the chair next to him. A detention center female
employee came over to Mr. Cornett’s chair, and I heard her kick his chair. She then
yelled at Mr. Cornett that he better get back into his chair, and that he was not
allowed to be slouching over into the next chair.” ( 7, Mogan Affidavit).
29

At page 22 of their papers, the Defendants argue that Plaintiff has “no proof that any amount
of force was used on Gerald Cornett.” However, both McCoy and Gaines have admitted that they
used “pain compliance techniques” on Gerald when, according to them, he was unconscious from
his head wound. A jury would be well-within its rights to determine that these two went too far with
their “pain compliance” techniques.
Finally, these Defendants make unsupported and entirely speculative arguments that Gerald
could have suffered these unbelievably painful injuries some time prior to his incarceration. First,
of course, there is absolutely no proof of any such thing in the record. Terry McClanahan testified
that Gerald was fine when he left Terry’s home, and had no injuries of any kind. Officers Greene and
Washington testified that Gerald was fine, just drunk, and complained of no injuries even when
asked about same. Gerald was checked out by three (3) EMT’s who confirmed these same facts. He
was seen by numerous members of the Detention Center staff, all of whom denied Gerald making
any such complaints or having any symptoms of any such injuries. Gerald spoke to Rice and did not
mention any such injuries .If Hatton is to be believed, Gerald was medically assessed by her on two
(2) separate occasions, and he did not mention or exhibit symptoms of such injuries either time.
As discussed above, the Defendants’ reliance on Officer Hayes’, Brian Rice’s and Dr.
Nichols’ testimony for the proposition that all of Gerald’s bruises pre-dated his incarceration is
misplaced. Dr. Davis already cautioned the parties and the Court as to the voodoo science of
attempting to assign a date to bruises beyond “old” and “new.” Officer Hayes and Brian Rice are
not expert witnesses, and Dr. Nichols did not even review pictures of the bruises. On the other hand,
as stated above, numerous witnesses testified that they did not see bruises, even on Gerald’s arms
and legs, before he entered the Detention Center.
30

Furthermore, Gerald did not tell anybody that he had been assaulted or injured. The
testimony from every single witness in this case was that Gerald was oriented to time and place, and
responsive to questions that were asked of him throughout this entire process. He was non-combative
and he was not uncooperative in any way, shape or form. The argument that Gerald was in this state,
yet was so drunk that he “forgot” that someone beat him senseless and caused these major injuries
is an insult to the intelligence. As testified by numerous medical experts and lay witnesses who have
had broken ribs, broken ribs are an incredibly painful condition and cause difficulty breathing.
However, Gerald did not complain of any pain and did not have any trouble breathing. While Gerald
may have bruised easily, there is no proof that his ribs broke easily, and there is no explanation for
these injuries that makes any sort of sense in this action other than that he was beaten while he lay
dying in P-7 by Gaines and/or McCoy. Viewing the facts in the light most favorable to Plaintiff, and
drawing all reasonable inferences in her favor from the facts, as the Defendants agree must be done
by the Court on this Motion, it is clear that the Motion for Summary Judgment should be denied as
towards McCoy and Gaines. The Court should further reserve ruling as to LaFoe.
ARGUMENT
The Defendants have incorrectly styled this a motion for summary judgment on qualified
immunity, telegraphing their intent to file yet another interlocutory appeal once their motion is
denied. This is not a qualified immunity issue. The inquiries for qualified immunity and excessive
force are distinct. Saucier v. Katz, 533 U.S. 194, 204 (2001) (overruled on other grounds by Pearson
v. Callahan, -- U.S. --, 129 S.Ct. 808 (2009)). Rather, the issue before this Court is the substantive
merit of the Plaintiff’s excessive force claim, in particular whether or not there is a genuine issue as
to whether Detention Center staff used force on Cornett during the night in question.
31

There is sufficient evidence for a jury to determine that Clarence McCoy and/or Maria Jones
used excessive force on Gerald Cornett on the night in question. The Plaintiff is not asking the jury
to speculate but to infer that this incurred from circumstantial evidence and expert testimony. In this
particular case especially, where several of the eyewitness Defendants have been indicted for
falsifying reports, “‘[c]ircumstantial evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100
(2003).
A. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is only proper
"if 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 that the moving party
is entitled to a judgment as a matter of law." See, e.g. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing a motion for summary judgment, "this Court
must determine whether 'the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Patton v.
Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The evidence, all facts, and any inferences that may
permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving
party, here, the Plaintiff. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
B. Anthony Estep, Kenneth Isaacs, Ronald Gaunce, and Robert Williams are entitled to
summary judgment on Plaintiff’s excessive force claims, and ruling should be reserved
as to LaFoe.
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Because there is not enough evidence for a jury to infer that the above-named individuals are
guilty of excessive force, summary judgment is likely proper as to the claims against them.
To be perfectly frank, although the evidence is weak because she denies knowing anything
at all, Kristine LaFoe in all likelihood knew exactly what happened to Gerald Cornett and
participated fully in the cover-up of the events of that night. It also appears that LaFoe may have
encouraged, participated in, and/or created an environment where excessive force was perfectly
acceptable and easy to get away with. The grand jury indicted LaFoe for her part in the conspiracy
based on the following overt acts:
(r) On several occasions between on or about January 1, 2006 and on or
about October 1, 2006, defendant LaFoe watched officers using unjustified force
against detainees and failed to intervene;
(s) On several occasions between on or about January 1, 2006 and on or
about October 1, 2006, defendant LaFoe watched officers using force against
detainees and failed to write incident reports required by LFCDC policy;
(t) Between on or about January 1, 2006 and on or about October 1,
2006, defendant LaFoe instructed officers known to the grand jury that if they were
going to use unjustified physical force on detainees, they should do so outside the
view of any fixed or handheld video cameras [like in Cell P-7]; and
(u) Between on or about January 1, 2006 and on or about October 1,
2006, defendant LaFoe reviewed incident reports written by officers known to the
grand jury and instructed them to change their reports to include “code” language that
would make unjustified uses of force appear to be justified.
(Indictment, Exhibit 50 hereto, p. 7) (emphasis added). Depending on the evidence revealed during
the trial of this criminal action, the Plaintiff may ask the Court to revisit the potential liability of
LaFoe because a supervisory official can be held liable under Section 1983 for the misconduct of the
individuals she supervises if “the plaintiff demonstrates that ... ‘the official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
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officers.’” Combs v. Wilkinson, 315 F.3d 548, 558 (6 th Cir. 2002). For this reason alone, summary
judgment may still be premature with respect to Kristine LaFoe, especially to the extent the criminal
trial may shed light on how she lied about and covered-up incidents of excessive force. However,
at this stage of the case, LaFoe has testified that she could have seen officers alone with Gerald in
Cell P-7 but does not remember whether she did. (LaFoe Depo., Ex. 8, p. 57-58).
C. Clarence McCoy and Maria Jones are not entitled to summary judgment.
Whenever prison officials stand accused of using excessive physical force, 9 the core judicial
inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).
“Although the maintenance of prison security and discipline may often require that prisoners be
subjected to physical contact which at common law would be actionable as an assault, a violation
of the Eighth Amendment will nevertheless occur if the offending conduct reflects an unnecessary
and wanton infliction of pain.” Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6 th Cir. 1995). In this
case, the question is not whether physical force was necessary, but whether it occurred at all. If the
prison guards used force, there is no question but that this use of force was wanton and unnecessary.
Anthony Estep testified that Gerald Cornett was not uncooperative or combative in any way, and that
Cornett did not say or do anything that deserved any type of physical touching beyond being
pat/frisked. (Estep Depo. at 49). Clarence McCoy also testified that Gerald Cornett did not do
anything to give McCoy a reason to put his hands on him. (McCoy Depo. at 29-30). “‘If a guard
decided to supplement a prisoner’s official punishment by beating him, this would be
9 Although not particularly relevant, it should be noted that Cornett’s claims arise under the Fourteenth
Amendment’s Due Process Clause, as opposed to the Eighth Amendment’s Cruel and Unusual Punishment Clause,
because Cornett was a pre-trial detainee. See Leary v. Livingston County, 528 F.3d 438, 443 (6 th Cir. 2008).
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punishment....’” Pelfrey, 43 F.3d at 1037 (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7 th Cir.
1985)). Since there is sufficient circumstantial evidence from which a jury could infer that McCoy
and/or Gaines beat Cornett, and since Cornett did nothing to deserve a beating, the Plaintiff’s
excessive force claim must go to a jury.
Gerald Cornett arrived at the Detention Center without broken ribs. Three EMTs, a nurse,
and several guards who had prior experiences with broken ribs all testified that they examined
Gerald, and that Gerald did not exhibit any signs or symptoms of broken ribs. Furthermore, several
witnesses testified that they did not see any bruises on Gerald at all, and others testified that they
only saw a few old bruises on his arms and legs. When Gerald arrived at the hospital, however, he
had six fractured ribs and old and new bruises.
The facts of this case are very similar to those that precluded summary judgment in Moore
v. Morales, 445 F.Supp.2d 1000 (N.D. Illinois 2006)(Attached hereto as Exhibit 51.) In Moore,
Frederick Grady was involved in a car accident on April 8, 2003. According to the ambulance
report, Grady refused treatment, and it was not clear whether Grady suffered from bumps and
bruises, or from no injuries at all. Id. at 1002-1003. Later that night, at approximately 8:45 p.m.,
Grady was arrested for criminal trespass when he entered a tow lot and attempted to retrieve tools
from his van. Neither the arresting officers, nor any of the other defendants, noted any injuries on
any report. Id. at 1003-1004. When taken to lockup at approximately 10:30 p.m., Grady was
processed in accordance with procedure, which included asking questions to assess the need for
medical treatment, and was not rejected from lockup for any injuries. Id. at 1004. Grady walked on
his own accord, was cooperative, and did not appear to be in any distress. Id. Another defendant
checked the well-being of all prisoners by walking by each cell approximately every 15 minutes, and,
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as of 1:30 a.m., that defendant noted that Grady was awake and sitting up on the bench in his cell.
Id. at 1004-1005. At approximately 1:50 a.m., that Defendant went to retrieve Grady from his cell
and discovered him unresponsive on the floor. Id. at 1005. According to the paramedics who
arrived at the lock-up, Grady had an abrasion on his forehead and nose, and a bandage on his right
hand. Id. Although the autopsy revealed that Grady’s cause of death was a natural case of coronary
heart disease, it also noted a bloody bandage covering a quarter inch deep laceration between Mr.
Grady’s right hand middle and ring fingers; a .2 inch abrasion on the top of Grady’s right wrist; a
four-by-two inch bruise at the left clavicle; and two abrasions on Grady’s forehead that could have
been caused by falling down or by being struck. Id. at 1005-1006. Based on these facts, the plaintiff
claimed that the three lock-up officers beat Grady while he was in his cell without any justification.
The district court relied on a Seventh Circuit case, Abdullahi v. City of Madison, which stated: “‘The
award of summary judgment to the defense in deadly force cases may be made only with particular
care where the officer defendant is the only witness left alive to testify ... so a court must undertake
a fairly critical assessment of ... the officer’s original reports or statements.’” Id. at 1008 (citing
Abdullahi v. City of Madison, 423 F.3d 763, 772 n.7 (7 th Cir. 2005). The district court held:
Based on the pictures submitted to this Court illustrating the severity of Mr. Grady’s
injuries and the lack of any documentation of Mr. Grady’s injuries by the police, a
reasonable factfinder might conclude that Mr. Grady sustained his injuries while in
police custody. ...
Moreover, the medical evidence presented by Moore raises issues of fact about the
manner in which Mr. Grady was injured and the time at which he actually received
his injuries. Dr. Kaufman, the doctor hired to do the second autopsy on Mr. Grady,
stated that the injuries to Mr. Grady’s head were consistent with blunt force trauma
and the injury to Mr. Grady’s hand was consistent with a defensive wound. Dr.
Patrick Besant-Matthews, a former medical examiner and expert witness for the
Plaintiff, stated that the laceration on Mr. Grady’s hand would have bled significantly
and would have been painful from the moment it occurred. Dr. Besant-Matthews
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further stated that there was no sign of adherent blood clotting, which gives the
impression that the wound occurred much closer to the time of Mr. Grady’s death
rather than seven hours earlier as Defendants allege. Based on this evidence, it is
clear that there is an issue of material fact as to whether the defendants used
excessive force. Accordingly, summary judgment is denied on the excessive force
claim.
Id. at 1009 (internal citations omitted).
Like the district court in Moore, this Court is faced with the following facts. None of the
police officers, detention center guards, or medical care providers who assessed Gerald prior to his
incarceration noted any injuries, with the possible exception of a few old bruises. Pictures taken and
medical and autopsy reports created after Gerald’s death, on the other hand, show extensive injuries,
including old and new bruises and six fractured ribs. Dr. Davis, the doctor who performed the
autopsy, testified that Gerald’s newer bruises seemed to be contemporaneous with his fall. Although
Dr. Davis believed he did not find evidence of an assault, he also testified as to only three possible
causes for the rib fractures: (a) CPR; (b) the fall; or (c) a kicking-type injury. Nobody performed
CPR on Gerald Cornett. Both Dr. Nichols and Dr. Balko testified that the fall did not break Gerald’s
ribs. Therefore, that leaves only a “kicking-type injury.” Furthermore, Dr. Nichols, the Defendants’
expert, testified that Gerald’s broken ribs, in conjunction with his bruises, led him to believe that
Gerald had been assaulted and suffered these injuries as a result of blunt force trauma. Dr. Balko
testified that, although Gerald’s broken ribs did not cause his death, they contributed.
The evidence in this case goes even beyond that in Moore. None of the lock-up staff in
Moore admitted to touching Grady. Here, however, McCoy and Jones admit to applying “pain
compliance techniques” to “wake Gerald up.” We also know, from the recent criminal indictments,
that, for almost a year, McCoy is alleged to have engaged in a common scheme or plan where he
37

conspired with other Detention Center guards to beat prisoners and then to falsify incident reports
by including “code language” justifying those beatings.
In light of this evidence, plaintiff ... is not asking the finder of fact to speculate about
the cause of [Gerald’s broken ribs and bruises] (as the [defendants] have contended)
but rather is asking the fact finder to infer causation, logically, from undisputed facts
and competent evidence. Such inferences are often necessary when the plaintiff’s
sole eyewitness is dead. Similarly, the fact that the available eyewitnesses support
the defendants’ account of things does not preclude the possibility of genuine factual
questions. The sheer number of witnesses mustered by each side is not a relevant
consideration, and cases may always be proven by circumstantial evidence where
direct evidence is unavailable. Were it otherwise, a plaintiff might never prevail on
an excessive force claim where the victim is dead and the defendant ... is the sole
living eyewitness.
Abdullahi, 423 F.3d at 772 (internal citations omitted) (emphasis in original).
CONCLUSION
Plaintiff has set forth sufficient evidence to defeat the Government Defendants’ request for
summary judgment on the excessive force claims against Clarence McCoy and Maria Jones. There
are serious, genuine issues of material fact that require a determination by a jury. Plaintiff is entitled
to a jury trial, and Plaintiff respectfully requests that this Court enter an Order providing Plaintiff
with just that.
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Respectfully submitted,
RAMBICURE & MILLER, P.S.C.
/s/ Christopher D. Miller
Christopher D. Miller
Christopher B. Rambicure
William C. Rambicure
219 East High Street
P.O. Box 34188
Lexington, Kentucky 40588-4188
(859) 253-6713 (Telephone)
(859) 233-7565 (Facsimile)
CERTIFICATE OF SERVICE
I hereby certify that on the 11 th day of March, 2009, I electronically filed the foregoing with
the clerk of the court by using the CM/ECF system which will send notification of such filing to the
following:
Sean Ragland
Phillips, Parker, Orberson & Moore, P.L.C.
716 West Main Street, Suite 300
Louisville, KY 40202
Counsel for Defendants Correctional Medical
Services, Inc. and Patty Hatton
Leslye M. Bowman
Carolyn C. Zerga
Lexington Fayette Urban County Government
200 East Main Street
Lexington, KY 40507
Counsel for LFUCG, et al.
/s/ Christopher D. Miller
39