United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE
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).
following facts are taken from Plaintiff Alice Penman's
Complaint and accepted as true for the purposes of
considering the Defendants' Motion to Dismiss.
Inmate Penman's Death
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.
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.
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.
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
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.
Kentucky Department of Corrections Subsequent Investigation
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.
Kentucky State Penitentiary's Systemic Failures
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.
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
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.
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] . .
Claims Against Defendants Randy White, Cookie Crews, and
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.”
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 ...