United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on a Motion to Dismiss filed by
Defendant Josh Patton. (R. 45). Plaintiff Ms. Alice Penman
has responded (R. 49), 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. 45).
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 shocked
Mr. Penman. He held the trigger, thereby electrocuting Mr.
Penman, for at least seven seconds. Walston continued to
intermittently shock 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 shocked Mr. Penman for upwards of 18-20 seconds at a
around 2:17 PM, the Cell Entry Team entered Mr. Penman's
cell. Upon entering the cell, Officer Steven H. Sargent
proceeded to shock 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 shocked 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 shock 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 shock 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.
Claims Against Defendant Josh Patton
Penman's Complaint identifies Defendant Josh Patton as
being a Correctional Unit Administrator (CUA) at KSP during
all times pertinent to this litigation. According to Ms.
Penman's Complaint, as a CUA, Patton was responsible for
Mr. Penman's safety, as well as being responsible for the
promulgation and enforcement of KSP policies, procedures,
protocols, customs, and practices particular to his Unit.
Penman brings four claims against Patton-deliberate
indifference to serious medical and/or mental health need in
violation of the Eighth Amendment, failure to intervene under
42 U.S.C. § 1983, negligence, and intentional infliction
of emotional distress or outrage under Kentucky common law.
Deliberate Indifference to a Serious Medical and/or Mental
deliberate indifference to a serious medical and/or mental
health need claim, Ms. Penman alleges the following:
69. Lieutenant Walston, Nurse Bauer, Lamb, S. E. Sargent, S.
H. Sargent, Corley, Bailey, Harris, Denny and Patton knew
there was a strong likelihood that Mr. Penman was in danger
of serious personal harm, including death. Mr. Penman had
obvious, serious and emergent mental health and medical
issues that were known or obvious to these Defendants prior
to his death.
70. Nonetheless, Lieutenant Walston, Nurse Bauer, Lamb, S. E.
Sargent, S. H. Sargent, Corley, Bailey, Harris, Denny and
Patton repeatedly disregarded the known and obvious risks to
Mr. Penman's health and safety. As documented herein,
these Defendants did nothing to secure medical assistance for
Mr. Penman despite his obvious need for emergent mental
health and medical evaluation, assessment and treatment.
(Pl's Am. Compl., p. 17: ¶¶ ...