Harvey Pelfrey, Individually v. Kimberly Hughes, as Co-Administrator of the Estate of Clyde Smith, Jr.

RENDERED: OCTOBER 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2021-CA-0741-MR

HARVEY PELFREY,
INDIVIDUALLY; AND UNKNOWN
AGENT EMPLOYEES OF THREE
FORKS REGIONAL JAIL, IN THEIR
INDIVIDUAL CAPACITIES APPELLANTS

APPEAL FROM LEE CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 20-CI-00035

KIMBERLY HUGHES, AS CO-
ADMINISTRATOR OF THE ESTATE
OF CLYDE SMITH, JR.; AND
JENNIFER SMITH, AS CO-
ADMINISTRATOR OF THE ESTATE
OF CLYDE SMITH, JR. APPELLEES

OPINION
AFFIRMING IN PART
AND REVERSING IN PART

** ** ** ** **

BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Harvey Pelfrey (“Pelfrey”) and unknown employees of the

Three Forks Regional Jail (“jail employees”) appeal from the Lee Circuit Court’s

order denying their motion for summary judgment, finding they are not entitled to

qualified official immunity. We affirm in part and reverse in part.

On March 11, 2018, Clyde Smith, Jr. (“Smith”) was arrested on

suspicion of driving under the influence of marijuana and brought to Three Forks

Regional Jail (“jail”) around 5:00 p.m. At 55 years old, Smith suffered from

respiratory and heart conditions which required access to an oxygen tank and

regular medication. Smith arrived at the jail with a bag of medications, which

were collected and logged by the jail employees. He was also asked a series of

medical questions as part of the jail’s standard intake process.

Jail employees noted that Smith was drowsy, had slurred speech, and

had a hard time staying focused during the interview. Smith explained that he had

smoked marijuana earlier that day on the advice of his doctor. When asked

whether he had taken too many drugs, Smith said he had only taken what was

prescribed. Smith answered no to most of the medical questions but did say yes

when asked if he was taking medication for diabetes, heart disease, seizures,

asthma, and/or arthritis. Afterwards, Smith was placed in a cell to “sober up.”

Around 6:50 p.m., Smith’s daughter, Kimberly Hughes, called the jail

and advised the answering employee of Smith’s medical issues, including that

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Smith had chronic obstructive pulmonary disease (COPD) and needed access to

supplemental oxygen. She called again forty minutes later and informed the

answering employee that Smith was diabetic. It does not appear that any action

was taken in response to these phone calls.

Jail employees did visual checks on Smith throughout the evening

which were recorded in the jail’s Booking Cell Log. The first twelve entries, from

around 6:00 p.m. to 12:00 a.m., note that Smith was observed “laying.” It is

unclear from the record whether jail employees did anything to confirm that Smith

was conscious during this period. At around 12:30 a.m., Smith was found

unresponsive and died shortly thereafter. According to the medical examiner,

Smith died from atherosclerotic and hypertensive cardiovascular disease.

However, the estate’s expert witness testified via deposition that the underlying

cause of death was a lack of oxygen.

On September 23, 2019, Smith’s estate (“estate”) filed a wrongful

death suit in Breathitt Circuit Court, which was later transferred to Lee Circuit

Court,1 against Pelfrey and the jail employees.2 Following discovery, Pelfrey and

the jail employees moved for summary judgment, arguing that the estate’s claims

1
Three Forks Regional Jail is in Lee County.
2
An amended complaint was filed on December 13, 2019, naming Pelfrey and the jail
employees in their individual capacities only.

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against them were barred by qualified official immunity. The trial court denied the

motion, finding that “the duty to provide inmates with medical care is not

discretionary, but is mandatory, and therefore ministerial.” The court went on to

hold that “there are genuine issues of material fact whether Jail employees violated

Jail policies and procedures and applicable laws and whether they violated their

duty to provide reasonable and necessary medical treatment to Clyde Smith, Jr.”

This appeal followed.

The sole issue on appeal is whether the trial court erred in holding that

Pelfrey and the jail employees are not entitled to immunity. While an order

denying summary judgment is typically not appealable, an order denying a claim

of immunity is subject to immediate appeal. Breathitt Cnty. Bd. of Educ. v. Prater,

292 S.W.3d 883, 886-87 (Ky. 2009). Whether an individual is entitled to qualified

official immunity is a question of law reviewed de novo. Rowan Cnty. v. Sloas,

201 S.W.3d 469, 475 (Ky. 2006).

Whether a government officer or employee is entitled to qualified

official immunity depends on whether their acts were discretionary or ministerial.

Qualified official immunity only applies to the negligent performance of a

discretionary act. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Discretionary

acts involve “the exercise of discretion and judgment, or personal deliberation,

decision, and judgment.” Id. Conversely, a ministerial act is “one that requires

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only obedience to the orders of others, or when [a] duty is absolute, certain, and

imperative, involving merely execution of a specific act arising from fixed and

designated facts.” Id.

However, in reality, “few acts are ever purely discretionary or purely

ministerial.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010). Therefore, “our

analysis looks for the dominant nature of the act.” Id. “That a necessity may exist

for the ascertainment of those [fixed and designated] facts does not operate to

convert the [ministerial] act into one discretionary in its nature.” Upchurch v.

Clinton Cnty., 330 S.W.2d 428, 430 (Ky. 1959) (citation omitted). Similarly, “an

act is not necessarily taken out of the class styled ‘ministerial’ because the officer

performing it is vested with a discretion respecting the means or method to be

employed.” Id. (citation omitted).

To determine whether Pelfrey and the jail employees are entitled to

immunity, we must first classify “the particular acts or functions in question” as

either discretionary or ministerial. Haney, 311 S.W.3d at 240. We begin with the

acts of the jail employees. The estate’s allegations can be divided into actions at

the time of Smith’s booking and actions following Hughes’ telephone call to the

jail.

As to the booking employees, the estate’s expert witness, Jeff Eiser,

testified that the booking employees were negligent in failing to notify medical

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when Smith told them of his various medical conditions. However, Eiser conceded

that the jail medical screening form did not require jail employees to contact

medical under the facts of this case and the estate has not alleged any jail policy or

law mandating they do so. Therefore, the booking employees’ decision to not

contact medical was discretionary.

“Under Yanero, public officers and employees are entitled to

‘qualified official immunity’ for negligent conduct when the negligent act or

omissions were (1) discretionary acts or functions, that (2) were made

in good faith (i.e. were not made in ‘bad faith’), and (3) were within the scope of

the employee’s authority.” Rowan Cnty., 201 S.W.3d at 475 (citing Yanero, 65

S.W.3d at 522). “Once the officer or employee has shown prima facie that the act

was performed within the scope of his/her discretionary authority, the burden shifts

to the plaintiff to establish by direct or circumstantial evidence that

the discretionary act was not performed in good faith.” Yanero, 65 S.W.3d at 523.

Here, the estate has not presented evidence or specific argument that the booking

employee’s discretionary decision was in bad faith. Therefore, summary judgment

should have been granted on the issue of immunity as to this act.

As to actions following Hughes’ telephone call to the jail, the estate

alleges the jail employees were negligent in (1) failing to provide an oxygen tank

to Smith after being put on notice of Smith’s feeble condition and (2) violating

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Kentucky Administrative Regulations requiring jails to provide necessary medical

services to inmates. Specifically, the estate points to 501 KAR3 3:140 § 8, which

mandates that “[e]ach prisoner shall be afforded access to necessary medical care.”

Similarly, the jail’s policies and procedures manual states that “[e]mergency

medical . . . care shall be available at all times to all inmates[.]”

Traditionally, under Kentucky law, providing medical care has been

deemed a ministerial duty. See Gould v. O’Bannon, 770 S.W.2d 220, 221-22 (Ky.

1989) (“The administration of medical care is a ministerial function by employees,

including doctors.”). The jail employees argue, however, that while the duty to

provide medical care is ministerial, the determination of whether medical care is

required is discretionary. They contend that Hughes’ phone call did not trigger a

ministerial duty to provide oxygen because “no regulation or [jail] policy requires

an officer to take specific action based on information received from a third party

regarding an inmate.”

First, it should be noted that “the duty compelling the performance of

a ministerial act need not spring from a specific statute, administrative regulation,

or formal policy statement or protocol.” Gaither v. Justice & Pub. Safety Cabinet,

447 S.W.3d 628, 635 (Ky. 2014) (citation omitted). Here, regulations and jail

policy require that emergency medical care be provided to jail inmates. The jail’s

3
Kentucky Administrative Regulations.

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policies and procedures manual lists both unconsciousness and serious breathing

difficulties as emergencies. Therefore, if jail employees know or should know that

an inmate has serious breathing difficulties or is unconscious, they have a

ministerial duty to render emergency medical care.

Here, there is evidence the jail employees had notice that Smith

needed supplemental oxygen. After receiving this information, they observed him

“laying” in the cell from 6 p.m. to 12 a.m. during their visual surveillance checks.

The record is unclear whether the jail employees did anything to confirm if he was

conscious or breathing during this time. Therefore, issues of fact remain as to

whether the jail employees knew or should have known that Smith needed medical

care.

Further, 501 KAR 3:060 § 1(3)(g) requires jails to develop written

policies and procedures governing surveillance checks. While parts of the jail’s

policies and procedures manual is in the record, the section pertaining to

surveillance, if it exists, is not. If verifying consciousness or breathing during

surveillance checks was part of jail policy, the jail employees would have a

ministerial duty to do so.

The trial court correctly held that genuine issues of material fact

remain as to whether the jail employees violated jail policies and procedures and

applicable laws and whether they violated their duty to provide reasonable and

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necessary medical care to Smith. See Harrod v. Caney, 547 S.W.3d 536, 542 (Ky.

App. 2018) (internal quotation marks and citation omitted) (“[I]f material factual

issues remain, it cannot be determined whether a particular defendant is protected

by qualified official immunity at the summary judgment stage.”). Accordingly, we

hold that the trial court did not err as a matter of law in denying the jail employees’

motion for summary judgment as to qualified official immunity.

Next, we turn to the acts of Pelfrey. The estate alleges that he was

negligent in creating a policy that oxygen would only be provided if it was

provided by another inmate. Relatedly, the estate’s expert witness, Jeff Eiser, also

criticized Pelfrey for failing to have a jail policy informing employees when and in

what circumstances to contact medical. However, there is no evidence the jail had

a policy that oxygen could only be provided to an inmate by another inmate.

Further, “rule-making is an inherently discretionary function.” Yanero, 65 S.W.3d

at 529 (citation omitted). Therefore, Pelfrey’s decisions as to policy, when not

mandated by law, were discretionary.

As noted above, “[o]nce the officer or employee has shown prima

facie that the act was performed within the scope of his/her discretionary authority,

the burden shifts to the plaintiff to establish by direct or circumstantial evidence

that the discretionary act was not performed in good faith.” Id. at 523. Here, the

estate has not presented evidence or specific argument that Pelfrey’s policy

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decisions were in bad faith. Therefore, Pelfrey is entitled to qualified official

immunity as to these acts.

The estate also alleges that Pelfrey failed to properly supervise and

instruct the jail employees in the jail’s policies. A jail administrator’s duty to

supervise and train his employees on jail policies and procedures is ministerial.

See Hedgepath v. Pelphrey, 520 F. App’x 385, 391-92 (6th Cir. 2013) (citing

Yanero, 65 S.W.3d at 522, 529). Although this argument is somewhat

undeveloped, there is evidence in the record that jail employees were confused as

to the availability of and process for administering oxygen to inmates.

Pelfrey testified that the jail has three canisters of oxygen available for

inmates who need oxygen. However, according to Hughes, when she called the

jail, an employee told her the jail did not keep oxygen on site and that it had to be

provided by the family or could be borrowed from another inmate. Therefore,

there are issues of fact precluding summary judgment as to whether Pelfrey

violated his ministerial duty to properly train and supervise his employees and the

trial court did not err in denying Pelfrey’s motion for summary judgment as to this

issue.

Based on the foregoing, the Lee Circuit Court’s order denying

summary judgment on the issue of qualified official immunity is affirmed in part

and reversed in part. Issues of fact preclude summary judgment as to whether

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Pelfrey violated a ministerial duty to train and supervise jail employees and

whether the employees violated jail policies and procedures, applicable laws, or

their duty to provide reasonable and necessary medical care to Smith. Therefore,

we affirm the trial court’s denial of summary judgment as to these issues.

However, the jail employees were entitled to qualified official immunity for their

discretionary decision to not contact medical at the time of Smith’s booking and

Pelfrey was entitled to qualified official immunity for his discretionary policy

decisions. Accordingly, we reverse the court’s order denying summary judgment

as to these issues and remand with instructions to enter summary judgment in favor

of the jail employees and Pelfrey.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Andrew D. DeSimone Ned Pillersdorf
L. Scott Miller James Tanner Hesterberg
Maureen C. Malles Prestonsburg, Kentucky
Lexington, Kentucky

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