Employer Has No Duty To Defend And Indemnify Corrections Officer

On June 13, 2012, corrections officer Connie Sutton was responsible for overseeing the female section of the Portage County Jail in Ohio. She was the only officer on duty at the time of the incident in question, and the unit was overcrowded. It had capacity for 34 inmates but housed 52, resulting in cramped conditions. Inmates reportedly were angry about the overcrowding.

At around 8:00 pm, inmate Holly Anderson was in the prison’s common area. She then walked through an open doorway to Sutton’s desk, to ask permission to attend a church service. Sutton refused, saying church was a privilege and Anderson had been “nasty” all day. Anderson returned to the common area. A few minutes later, she went back to Sutton’s desk to request prison grievance forms for herself and a friend. Sutton gave a form to Anderson, but said the friend would have to request one herself. What happened next was captured on two different video cameras.

Anderson returned to the common area and said something to Sutton. She continued walking away, then turned and said something else. According to Sutton, Anderson called her a “nigger bitch” and vowed to “take her down.” Sutton called Anderson a “bald-headed heifer.” Anderson walked away, towards cell #43. A moment later, Sutton also walked in that direction, holding a grievance form to give to the inmate in that cell. Anderson turned to face Sutton, seeming to impede her progress. At that point, she may have poked Sutton in the chest. The two traded insults, inches apart, until Sutton pushed Anderson away. They then advanced towards each other until Sutton again pushed Anderson away.

A fight ensued. Both Sutton and Anderson threw punches. After about ten seconds, Sutton wrestled Anderson to the ground. While Anderson was on the ground, Sutton got on top of Anderson, put her hands around Anderson’s neck, and repeatedly punched and slapped her in the face. She appeared to choke Anderson, who was squirming beneath her, largely helpless. Anderson eventually managed to crawl a few feet away, at which point she pushed Sutton backward with her feet. She then turned to look at her elbow, which was apparently injured. She made no attempt to get up or otherwise resume the confrontation. While Anderson was lying on the ground, not resisting, Sutton slowly and deliberately walked over and sprayed her in the face with pepper spray. Anderson shook her head back and forth in an attempt to avoid the spray and then sat on her knees, hunched over and exhausted. Again, she made no attempt to get up or otherwise resume the confrontation. Nonetheless, Sutton walked around her and again sprayed her in the face with pepper spray. At that point, the altercation ended. Anderson was hunched over panting, repeatedly saying, “I can’t breathe.”

Anderson sued Sutton, who was fired for her conduct. Sutton demanded that the County defend and indemnify her in the lawsuit, and the matter wound up before a federal appeals court.

The Court rejected Sutton’s claim for defense and indemnification. The Court held that “Sutton is entitled to a paid defense if she acted in good faith and not manifestly outside the scope of her employment. Even assuming that Sutton acted within the scope of her employment and initially acted in good faith during the altercation, our review of the video convinces us that she failed to act in good faith when she twice walked over to Anderson to administer pepper sprays that were clearly unnecessary.

“The video of the incident shows that when Sutton first sprayed Anderson, Anderson was lying on her back, holding her elbow. She was not a threat. When Sutton sprayed Anderson the second time, Anderson was on her knees, hunched over, looking at the ground. Again, she was not a threat. While Sutton was repeatedly administering the pepper spray, several inmates who were present during the incident can be heard pleading with Sutton to stop pepper spraying Anderson – who appeared to be helpless and prostrate.

“We cannot agree that these sprays were attempts to calm Anderson. Rather, we are convinced that Sutton was attempting to punish or retaliate against Anderson for Anderson’s role in the fight. And because we find that Sutton was attempting to inflict gratuitous physical punishment, we conclude that she was not acting in good faith. Therefore, the County had no obligation to defend her.”

Anderson v. Sutton, 2017 WL 5508540 (6th Cir. 2017).