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Penman v. Correct Care Solutions

United States District Court, W.D. Kentucky, Paducah

November 26, 2018




         This matter is before the Court on a Motion to Dismiss filed by Defendants Randy White, Cookie Crews, and Deborah Coleman. (R. 44). Plaintiff Ms. Alice Penman has responded (R. 48), and this matter is now ripe for adjudication. For the reasons that follow, the Court DENIES IN PART AND GRANTS IN PART the Defendants' motion to dismiss. (R. 44).


         The following facts are taken from Plaintiff Alice Penman's Complaint and accepted as true for the purposes of considering the Defendants' Motion to Dismiss.

         A. Inmate Penman's Death

         Marcus Penman was an inmate at Kentucky State Penitentiary (KSP) where he was housed in the Seven Cell House Restrictive Housing Unit, Observation Cell #2. At around 1:50 PM on April 25, 2017, Unit Administrator Josh Patton observed Mr. Penman repeatedly beating on his cell door and running into it with his head and body. Ten minutes later, Lieutenant Kerwyn Walston notified Day Shift Commander Captain Garyth Thompson of Mr. Penman's behavior. At this point no medical or mental health personnel had been notified. Captain Thompson authorized a “Cell Entry Team” to enter Mr. Penman's cell, restrain him, and then place him in the restraint chair. Around 2:05 PM, before the Cell Entry Team assembled at Mr. Penman's cell, Patton retrieved a video camera from the control center, and Officer Robert Harris started recording Mr. Penman. Mr. Penman continued to beat his head against his cell door, causing himself to bleed. He also began punching himself in the face.

         Around 2:12 PM, the Cell Entry Team assembled outside Mr. Penman's cell. The Entry Team included: Lieutenant Walston, Officer Michael Lamb, Officer Steven H. Sargent, Officer James Corley, Officer Jose Bailey, Officer Jason Denny, Steve E. Sargent, and Officer Robert Harris-still equipped with the camera. All the officers were wearing full riot gear. Before entering the cell, Lieutenant Walston opened the cell's tray slot and observed Mr. Penman still throwing his head and body against the cell door. Walston began spraying Mr. Penman in the face with pepper spray through the tray slot. He sprayed Mr. Penman at least three separate times. Walston also shot Mr. Penman with a taser gun, lodging a dart in his skin through which Walston electrocuted Mr. Penman. He held the trigger, thereby electrocuting Mr. Penman, for at least seven seconds. Walston continued to intermittently electrocute Mr. Penman through the dart lodged in his skin. Walston then removed the first dart pack from the taser gun, reloaded it, and shot Mr. Penman again. This time Walston electrocuted Mr. Penman for upwards of 18-20 seconds at a time.

         At around 2:17 PM, the Cell Entry Team entered Mr. Penman's cell. Upon entering the cell, Officer Steven H. Sargent proceeded to electrocute Mr. Penman with an electrified riot shield. Officer Sargent and Officer Denny then shackled Mr. Penman's legs. After restraining Mr. Penman's legs, Walston electrocuted Mr. Penman with his handheld taser. Officer Lamb then shackled Mr. Penman's hands while Officer Corley secured his head. After he was completely restrained, Walston again began to electrocute Mr. Penman with the taser.

         From his cell, Mr. Penman was placed in a restraint chair. After he had been placed in the restraint chair, Walston continued to electrocute Mr. Penman with the handheld taser. Walston then placed a hood over Mr. Penman's head and face. Once Mr. Penman had been hooded, Officer Corely, upon instruction from Walston, cut off Mr. Penman's pants with a seatbelt cutter.

         At this point, Nurse Bruce Bauer of Correct Care Solutions, LLC had arrived on scene. Officer Patton handed Bauer a pitcher of water that Bauer poured over Mr. Penman's hooded head. Around five minutes later, the officers unhood Mr. Penman to find him unconscious. He remained unconscious and was pronounced dead at the scene.

         B. The Kentucky Department of Corrections Subsequent Investigation

         After Mr. Penman's death, Kentucky Department of Corrections began a “Critical Incident Review.” It has been over a year since that investigation began. It remains open. However, on the day of Mr. Penman's death, KSP officials falsely stated to members of the Kentucky media and Penman's family that all evidence pointed to Mr. Penman's death being the result of self-inflicted injuries. No. one has been criminally charged, and only nurse Bauer, a Correct Care Solutions employee, has been fired in connection with the incident.

         C. Kentucky State Penitentiary's Systemic Failures

         Plaintiff Alice Penman, the administrator of Marcus Penman's estate, alleges in her Complaint that “[f]or years, the KSP has operated under a culture of indifference to inmates' safety and mental health needs, ” and that “Mr. Penman's suffering and death occurred as a result of systemic failures at KSP.” She alleges that “[i]naddequate and unconstitutional mental health policies, practices, training, and supervision were at the heart of [Mr. Penman's death].” To support these claims, Ms. Penman cites the recent death of two other KSP inmates with mental health and medical conditions-Clifford Warfield and James Embry.

         While incarcerated at KSP, Clifford Warfield, who had a history of bowel obstructions, stopped eating and drinking. He was deemed by a KSP physician to be malingering, determined to be on “hunger strike, ” and placed in disciplinary segregation. Warfield starved for five days, until eventually he turned gangrenous and became terminal. Warfield, in fact, had a bowel obstruction. In 2011, high-ranking Kentucky Department of Corrections officials were made aware of Warfield's case.

         More recently, in January of 2014, James Embry-another KSP inmate-starved to death over 45 days. According to the Ms. Penman, KSP medical and mental health staff “flatly refused to provide Mr. Embry with medically necessary mental health medication and treatment, despite his pleas for help and blatant need.” Embry's untreated mental health disorder caused Embry to lose his appetite. At the time of his death Embry had missed 35 of his last 36 meals. KSP staff did nothing as Embry starved to death.

         Just as they did after Mr. Penman's death, The Kentucky Department of Corrections began a Critical Incident Review after Embry starved to death. At its conclusion, it was determined that “the death of inmate James Embry occurred as the result of a systemic failure at the [KSP] . . .”

         D. Claims Against Defendants Randy White, Cookie Crews, and Deborah Coleman

         Ms. Penman's Complaint identifies Randy White as being KSP's Warden currently and at all times pertinent to this litigation. According to Penman's Complaint White is “responsible for ensuring the safety and well-being of inmates detained and housed at KSP, including the provision of appropriate medical and mental health care and treatment to inmates in need of such care.” Warden White is also “responsible for creating, adopting, approving, ratifying, and enforcing the rules, regulations, policies, practices, procedures, and/or customs of KSP, including the policies, practices, procedures, and/or customs that violated Mr. Penman's rights.”

         According to Penman's Complaint, Cookie Crews is, and at all times pertinent to this litigation was, the Health Services Administrator of the Kentucky Department of Corrections. Penman's Complaint describes her as being responsible “for all operations of institutions within the Kentucky Department of Corrections; the promulgation, implementation and enforcement of all of the Kentucky Department of Corrections's policies, procedures, protocols, customs, and practices; and the employment, training and supervision of employees ...

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