United States District Court, E.D. Kentucky, Northern Division, Covington
JESSICA BARBERICK, AS ADMINISTRATRIX OF ESTATE OF FRANK BARBERICK JESSICA BARBERICK, AS MOTHER AND NEXT FRIEND OF L.B., A MINOR PLAINTIFFS
ROGER ALLEN BRETT DOVER JOSHUA ELLISON PAUL HILMER MIKE STEWARD DEFENDANTS
William O. Bertelsman United States District Judge
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.
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 went to an apartment Barberick shared with
his mother and assisted Barberick after he attempted to
intentionally overdose on prescription pills. (Id.
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.).
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,  as his doctor prescribed. (Id.).
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.
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.).
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).
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.).
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.).
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.).
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.).
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.
and the EMTs found Barberick lying face-down on a couch in
handcuffs. (Id.). One of the EMTs 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.).
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
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.).