Response to motion for summary judgment - Kentucky.com

More documents

Recommendations

Info

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). 34
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, 35
Page 1 and 2: ELECTRONICALLY FILED UNITED STATES
Page 3 and 4: A. Cover-up by the Detention Center
Page 5 and 6: The Triage Nursing Care Record from
Page 7 and 8: someone who has sustained a head wo
Page 9 and 10: At approximately 0435 I went into P
Page 11 and 12: The remainder of this memorandum se
Page 13 and 14: Mr. Land checked for signs of blunt
Page 15 and 16: prior paramedic training, Gerald di
Page 17 and 18: sometimes hard, across the sternum,
Page 19 and 20: Notes, Ex. 32, p. 1). According to
Page 21 and 22: head showed a marked acute subdural
Page 23 and 24: D. Additional Expert Testimony Acco
Page 25 and 26: is simply not worthy of belief. (Se
Page 27 and 28: cells after he was put in there unt
Page 29 and 30: detainees were allowed to continue
Page 31 and 32: Furthermore, Gerald did not tell an
Page 33: Because there is not enough evidenc
Page 37 and 38: further stated that there was no si
Page 39: Respectfully submitted, RAMBICURE &

Response to motion for summary judgment - Kentucky.com

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?