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Barberick v. Allen

United States District Court, E.D. Kentucky, Northern Division, Covington

June 27, 2017

JESSICA BARBERICK, AS ADMINISTRATRIX OF ESTATE OF FRANK BARBERICK JESSICA BARBERICK, AS MOTHER AND NEXT FRIEND OF L.B., A MINOR PLAINTIFFS
v.
ROGER ALLEN BRETT DOVER JOSHUA ELLISON PAUL HILMER MIKE STEWARD DEFENDANTS

          ORDER

          William O. Bertelsman United States District Judge

         This is a civil rights action, in which Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 for claims under the Eighth Amendment through the Fourteenth Amendment's Due Process Clause. The case also includes pendant state law claims. The matter now comes before the Court on Defendants' Motions to Dismiss. (Docs. 20, 23, 24). Having reviewed the matter, and being sufficiently advised, the Court now issues this Memorandum Opinion and Order.

         I. Facts [1]

         In the fall of 2015, Frank Barberick was 45 years old, divorced, and had at least two daughters. (Doc. 16). On approximately November 4, 2015, Florence Police and Florence Fire Department paramedics[2] went to an apartment Barberick shared with his mother and assisted Barberick after he attempted to intentionally overdose on prescription pills. (Id. at 126).

         Twelve days later, on November 16, 2015, dispatch received a 911 hang-up call from the same apartment. (Id.). The dispatcher informed those on the radio about the suicide attempt at that residence 12 days earlier. (Id.).

         Boone County Sheriff's Deputy Defendant Brett Dover was the first to arrive at the apartment. (Id.). Barberick's mother immediately informed Dover that her son had swallowed two handfuls of pills. (Id.). Dover then asked Barberick what he had taken. Barberick said he had taken Elavil, [3] as his doctor prescribed. (Id.).

         Barberick's mother then brought out two pills she had found on the floor, which Barberick identified as a muscle relaxer and the generic name for Elavil. (Id. at 127). Dover noticed Barberick slurring his speech, appearing “extremely intoxicated, ” and unable to make sense. (Id. at 128-31). He spoke with Barberick's mother again, and she reiterated that her son “had taken a handful of the pills about half an hour to forty-five minutes” before Dover arrived. (Id. at 127). This prompted Dover to radio dispatch for the first time, informing dispatch of Barberick's name and identification information. (Id.).

         After radioing dispatch, Dover went back to speaking with Barberick. While Dover and Barberick spoke, Barberick's mother was nearby calling Barberick's ex-wife. (Id.). Barberick had spoken with his ex-wife earlier that day, and Barberick's mother wanted to know whether Barberick said goodbye. (Id.). As he heard his mother speaking to his ex-wife, Barberick requested the opportunity to call his daughter. (Id.).

         The conversation turned back to the pills Barberick allegedly consumed. After initially refusing to say how many pills he had taken, Barberick admitted he had taken “maybe two or three” Elavil. (Id. at 128).

         After this admission, Barberick called his daughter. (Id.). As Barberick spoke to his daughter nearby, his mother told Dover about her son's November 4 suicide attempt and said she believed “the same thing” was happening at the moment. (Id.).

         This prompted Dover to radio dispatch for the second time. (Id.). He told dispatch that Barberick had attempted suicide on November 4, and that Barberick's mother believed her son was doing the same thing now and appeared “extremely intoxicated.” (Id.).

         Dover ended the dispatch call and went back to speaking with Barberick. This time they discussed alcohol consumption. Barberick said he had consumed two or three beers. (Id.). Barberick's mother supplemented this admission by saying Barberick drank vodka. (Id.).

         Once again, the conversation returned to pill consumption. Barberick now admitted that he had taken some Xanax, which he had not previously mentioned. (Id. at 129). Dover asked how long it had been since Barberick took these pills. Barberick said it was approximately two hours, but his mother said it was at most an hour. (Id.).

         The ambulance containing Florence Fire Department EMTs Defendants Paul Hilmer and Joshua Ellison (EMTs) had arrived by this point, and Dover asked Barberick to come downstairs to have the EMTs examine him. (Id.). Barberick refused. (Id.). So Dover arrested Barberick on an unrelated outstanding warrant and placed him in handcuffs. (Id.). Even after he was in handcuffs, Barberick still refused to go downstairs, and attempted to remain on a couch. (Id. at 129-30). The EMTs thus came upstairs to examine Barberick. (Id. at 130). Florence Police Department Officer Defendant Mike Steward accompanied them. (Id.).

         Steward and the EMTs found Barberick lying face-down on a couch in handcuffs. (Id.). One of the EMTs[4] borrowed a flashlight from Dover and shone it directly into Barberick's eyes for a total of seven seconds. (Id.). The EMT then stood up and reported to the room that now contained the other EMT, Dover, a layperson who was accompanying Dover, Steward, and Barberick's mother that, “His pupils, I mean he's nothing, no narcotics.” (Id.) This meant the EMTs thought Barberick was merely drunk. (Id.). They decided not to provide any further treatment. (Id.).

         Barberick could not walk under his own power at this point, so one of the EMTs, Steward, and Dover helped Barberick down the stairs and into Dover's cruiser. (Id.). Once Barberick was in the back of the cruiser, Dover and Steward briefly discussed whether the Boone County Detention Center would accept Barberick in his current condition. (Id.). They determined that it would be best if Steward took Barberick to the jail, since the arrest was within Florence city limits, and Steward was a Florence Police Officer. (Id. at 130-31). Steward, Dover, and Florence Police Department Lieutenant Defendant Roger Allen then moved Barberick from Dover's cruiser to Steward's cruiser. (Id. at 131). Since Barberick had lost most of his motor function by this point, the officers had to place him across the back seat of Steward's cruiser, with his feet draped into the front passenger seat. (Id.). As Steward drove, he claims he heard Barberick “snoring or snoozing.” (Id.).

         Steward arrived at the jail and requested assistance moving Barberick because he was “intoxicated.” (Id.). When Steward and jail personnel opened the cruiser door, they immediately realized that Barberick was unresponsive. (Id.). Jail personnel attempted CPR and requested paramedics. (Id.). Some paramedics did arrive, and noted that there was an earlier dispatch call because Barberick “was drunk and had taken a handful of pills.” (Id.). Ultimately, though, the paramedics were unable to resuscitate Barberick and he died. (Id. at 132). The autopsy listed the cause of death as “combined drug intoxication.” (Id.).

         II. ...


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