DUSTAN HALE v. BOYLE COUNTY, KENTUCKY; DEREK ROBBINS; THOMAS PENNINGTON
No. 20-6195
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 10, 2021; Decided and Filed: November 18, 2021
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 21a0265p.06. Before: BOGGS, MOORE, and LARSEN, Circuit Judges.
Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:18-cv-00002—Gregory N. Stivers, District Judge.
COUNSEL
ARGUED: Aaron Bentley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, for Appellant. Lynn Sowards Zellen, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appellees Boyle County and Derek Robbins. Kyle M. Vaughn, VAUGHN PETITT LEGAL GROUP, PLLC, Pewee Valley, Kentucky, for Appellee Thomas Pennington. ON BRIEF: Aaron Bentley, BELZLEY, BATHURST & BENTLEY, Prospect, Kentucky, Samuel Weiss, RIGHTS BEHIND BARS, Washington, D.C., for Appellant. Lynn Sowards Zellen, D. Barry Stilz, KINKEAD & STILZ, PLLC, Lexington, Kentucky, for Appеllees Boyle County and Derek Robbins. Kyle M. Vaughn, Carol Schureck Petitt, VAUGHN PETITT LEGAL GROUP, PLLC, Pewee Valley, Kentucky, for Appellee Thomas Pennington.
PER CURIAM. Dustan Hale was detained at the Marion County Detention Center in Kentucky ahead of her trial in neighboring Boyle County. Court Security Officer Thomas Pennington transported her to and from her monthly court hearings in Boyle County. Hale and Pennington repeatedly performed oral sex on each other and had unprotected penetrative vaginal sex in Pennington‘s van. Before and during the encounters, Pennington showered Hale with perks—she rode cuffless in his van‘s front seat, he bought her sodas, and he allowed her to smoke. He also offered to intervene in Hale‘s pending criminal case. Hale gave birth to their child.
Invoking the
Hale, however, has presented a genuine dispute of material fact about whether the encounters with Pennington were consensual. We thus REVERSE the judgment in part, VACATE in part, and REMAND for further proceedings.
I. BACKGROUND
Dustan Hale was charged with failing a drug test while on pretrial diversion in Boyle County, Kentucky and was detained at the Marion County Detention Center ahead of her trial. R. 55-12 (Release Rep. at 1) (Page ID #389). The Boyle County Sheriff‘s Office trаnsported Hale between
Boyle County Court Security Officer (CSO) Thomas Pennington transported Hale at least six times between January and April 2017.1 When Pennington first drove Hale from Marion County to Boyle County, Hale sat handcuffed in the back. R. 59-3 (Hale Dep. at 86, 92) (Page ID #559, 565). On the way back to Marion County, Pennington pointed out that Hale had four felony warrants and asked how she “got [her]self into so much trouble.” Id. at 94 (Page ID #567). Hale clarified that her marriage hаd fallen apart, she had been using cocaine, and she failed a drug test with three months left on her pretrial diversion program. Id. Pennington commented that his marriage was likewise in trouble, and the two spoke for hours. Id. Hale did not “get to see daylight very much” in prison and “[i]t was a sunny day,” so she asked Pennington to take the long way back to Marion County. Id. at 95 (Page ID #568). Pennington obliged. Id. Instead of driving straight back to Marion County, he detoured to Taylor County to pick up another detained person. Id.
On the way to Tаylor County, Pennington stopped at a gas station to buy soft drinks for himself and Hale. Id. at 92 (Page ID #565). He jumped back in the car, drove to the side of the parking lot, and asked Hale if she would do “anything stupid” if he put her in the front seat. Id. at 92–93 (Page ID #565–66). No, she said. Id. at 93 (Page ID #566). Pennington placed Hale in the front seat, uncuffed her, and said “you‘re in control now.” Id. at 96 (Page ID #569). In Hale‘s words:
I wasn‘t quite sure what that meant, but beings [sic] that he was a man and I was a girl, I kind of insinuated maybe he was insinuating something sexual. . . . [B]ecause I was unsure of what he meant by you‘re in control now . . . I looked at him and said, I‘ll suck your dick if you‘re cool with it. . . . I don‘t know, kind of feel him out, see what that comment meant.
Id. at 96–97 (Page ID #569–70). Pennington smiled, saying nothing. Id. at 97 (Page ID #570). Hale told him to find a back road. Id. Pennington rolled up to a field. Id. The two kissed and Hale performed oral sex on him. Id. at 97–98 (Page ID #570–71). Pennington instructed Hale not to tell anyone. Id. at 102 (Page ID #575). Hale rode cuffless in the front seat until they arrived at Taylor County to pick up the other passenger. Id. at 100 (Page ID #573). Pennington allowed Hale and the other detained person to smoke cigarettes in the van. Id. at 103 (Page ID #576).
A month later, Pennington once agаin picked up Hale from her detention center. Id. at 104 (Page ID #577). He immediately uncuffed her and asked if she “was ready to go for a ride.” Id. Yes, Hale affirmed. Id. Instead of driving straight to Boyle County, Pennington veered to Pulaski County. Id. He imparted that he would talk to the prosecutors in Hale‘s case to help her avoid ten years in prison. R. 59-7 (Hale Aff. at 2) (Page ID #760). Halting at
When Pennington picked Hale up the third time, he “wasn‘t very friendly” and was “pissed off.” Id. at 118 (Page ID #591). He left Hale handcuffed in the back of the van and said nothing. Id. Speeding along a back road, he confronted Hale: “Why in the hell did [you] tell[?]” Id. Hale, still handcuffed, was scared. Id. at 119 (Page ID #592). She explained that someone must hаve overheard her conversation with her friend. Id. Pennington asked Hale to take a pregnancy test, which he had in the glove box, and she assented. Id. at 120 (Page ID #593). The test came back negative. Id. Afterwards, Pennington and Hale kissed, performed oral sex on each other, and had unprotected vaginal intercourse in the driver‘s seat. Id. at 120–22 (Page ID #593–95). Hale promised that she would not tell anyone else about their encounters and would deny everything if asked. Id. at 120 (Page ID #593). Pennington drove Hale to court at least thrеe more times in March and April. Id. at 121–23 (Page ID #594–96). On each trip, they had unprotected vaginal intercourse. Id.
At the time, Hale thought that her relationship with Pennington was “more than sex,” even though she knew that Pennington was married. Id. at 115 (Page ID #588). Pennington “expressed concern for [Hale] and interest in [her] . . . so [she] was very comfortable with him and [] trusted him.” Id. To Hale, Pennington was her boyfriend. Id. And she wanted Pennington to transport her because he let her have more freedom than other officers did. Id. at 104–05 (Page ID #577–78). Pennington never forced her to do anything, she relished his company, and she enjoyed their sexual contact. Id. at 115 (Page ID #588). Pennington also gave Hale his phone number, which allowed her to call him several times. Id. at 123–24 (Page ID #596–97).
Based on a confidential informant‘s tip, Boyle County Sheriff Derek Robbins learned on April 5, 2017 that Hale and Pennington might be having sex. R. 55-18 (4/5/17 Mem.) (Page ID #432); R. 59-5 (Robbins Dep. at 66) (Page ID #680). Robbins reviewed security camera footage and the “body receipt” that Pennington had filed for his trip on April 3, 2017. R. 59-5 (Robbins Deр. at 76–80) (Page ID #4682–83). The sheriff discovered that Pennington picked up Hale at 2:45 AM on April 3 and arrived at the Casey County Detention Center to get another detainee at 4:13 AM. Id. at 76–78 (Page ID #4682–83). Robbins determined that the drive should have taken half that time. Id. at 78 (Page ID #4683). The sheriff summoned Pennington to be interviewed, suspended Pennington without pay, and alerted the police. R. 55-19 (4/6/17 Not.) (Page ID #433); R. 55-20 (4/7/17 Letter) (Page ID #434); R. 59-5 (Robbins Dep. at 87–88) (Page ID #685). Pennington resigned. R. 55-21 (4/12/17 Resignation) (Page ID #435).
Hale sued Boyle County, Pennington, and Robbins. R. 1 (Compl. at 1) (Page ID #1); R. 39 (Am. Compl. at 1) (Page ID #205); R. 65 (8/27/19 Order) (Page ID #938).2 She raised three
The district court found that Hale‘s
II. ANALYSIS
A. Jurisdiction
A grant of summary judgment is a final order that we may review under
B. Standard of Review
We review de novo a grant of summary judgment. Jones v. Clark County, 959 F.3d 748, 756 (6th Cir. 2020). To be entitled to summary judgment, a party must show that there is no genuine dispute of any material fact and that the party is entitled to judgment as a matter of law. Id.
C. Excessive Force
Persons in the criminal justice system invoke different constitutional amendments in their
Courts historically applied the
Kingsley‘s objective test applies to Hale‘s claims against Pennington. Both parties have framed Hale‘s claim as an excessive-force claim. See Appellant Br. at 21; Pennington Br. at 8–11. That framing
The parties agree that Hale‘s excessive-forcе claim hinges on consent. In Rafferty v. Trumbull County, 915 F.3d 1087 (6th Cir. 2019), we held that “sexual abuse of inmates” is generally “sufficiently serious” to implicate the objective component of an
In Rafferty, we addressed an imprisoned person‘s allegation that a prison guard sexually abused her. “[The prison guard] . . . argue[d] that he did not violate the
As in Rafferty, we conclude that a genuine issue of material fact remains as to whether Hale consented to the encounters with Pennington. Hale has attested that when Pennington discovered that she had told others about their sexual encounters and confronted her, he scared her. That is akin to the subjective “intimidation” that the incarcerated person felt in Rafferty and is evidence that the encounters were not consensual.
Hale‘s argument relating to a per-se nonconsent rule based on state law fails. Generally speaking, “the violation of a state statute or regulation is insufficient alone to make a claim cognizable under § 1983,” Stanley v. Vining, 602 F.3d 767, 769 (6th Cir. 2010). Indeed, Hаle‘s counsel conceded at oral argument that Kentucky‘s statute alone does not dictate the constitutional contours of her § 1983 claim.
Relatedly, Hale argues that Pennington is estopped from denying that he had nonconsensual sex with Hale because Pennington pleaded guilty to sexual misconduct and bribery of a public servant. See Hale Br. at 38–39. This argument also fails. For estoppel to apply, the issue must be “necessary,” and the party must have bеen “given a full and fair opportunity to litigate” it in state court. See Moore v. Commonwealth of Kentucky, 954 S.W.2d 317, 319 (Ky. 1997). For his guilty plea to sexual misconduct, Pennington had to admit that Hale did not consent to the encounters. See
Most significantly, Hale asserted in an affidavit that Pennington offered to speak to the prosecutors in Hale‘s case аfter Hale had performed oral sex on him.6
Hale also asserted that Pennington exchanged privileges and favors in exchange for sex. Pennington provided Hale with sunshine, detours, cigarettes, sodas, and his mobile number. Each of these gifts, favors, and privileges is indicative of coercion. See Wood, 692 F.3d at 1047 (“Even if the prisoner concedes that the sexual relationship is ‘voluntary,’ because sex is often traded for favors (more phone privileges or increased contact with children) or ‘luxuries’ (shampoo, gum, cigarettes), it is difficult to characterize sexual relationships in prison as truly the product of freе choice.“); see also Chao v. Ballista, 772 F. Supp. 2d 337, 350–51 (D. Mass. 2011) (citing perks such as cigarettes, candy, and food as evidence in rejecting the consent defense as a matter of law).
Defendants maintain that Hale voluntarily had sexual contact and intercourse with Pennington. See Pennington Br. at 1; Boyle Cnty. Br. at 2. Defendants argue in their briefs and asserted at oral argument that Pennington never intimidated or threatened Hale; that Pennington never forced her to have sex; and Hale enjoyed having sex with Pennington. See Pennington Br. at 14, 23; Boyle Cnty. Br. at 20–21; Oral Arg. at 14:20–28. In one sense, Defendants are correct. Per Hale‘s testimony, all sexual contact was the product of Hale‘s agreeing to have sex with Pennington. But as the Ninth Circuit recognized, coercion can make a purportedly “voluntary” act involuntary. See Wood, 692 F.3d at 1047. Defendants minimize the coercive aspects of Pennington‘s gifts, privileges, and offer to intervene in Hale‘s criminal case. Despite Hale‘s testimony, the gifts, рrivileges, and statements by and from Pennington are sufficient evidence of coercion to create a genuine issue of material fact.7
D. Failure to Protect & Municipal Liability
Because the district court found that Hale had consented to sex with Pennington, the district court dismissed Hale‘s failure-to-protect claim against Robbins and municipal-liability claim against Boyle County. Hale, 2020 WL 5646903, at *15. In light of our conclusion that there is a genuine dispute of material fact about whether Pennington used excessive force аgainst Hale, we vacate the district court‘s judgment in favor of Robbins and Boyle County and remand for further consideration consistent with this opinion.
E. Supplemental Jurisdiction
Finding that Hale had failed to create a genuine dispute of material fact about her federal-law claims, the district court declined to exercise supplemental jurisdiction over Hale‘s state-law negligence and intentional-infliction-of-emotional-distress claims. See Hale, 2020 WL 5646903, at *15. Because we conclude that therе is a genuine dispute of material fact about Hale‘s federal-law claims, we remand so that the district court can reconsider its supplemental-jurisdiction decision.
We conclude that the district court should not have granted summary judgment to Pennington on Hale‘s excessive-force claim. We REVERSE in part, VACATE in part, and REMAND for further proceedings consistent with this opinion.