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Penman v. Correct Care Solutions

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

November 26, 2018

ALICE PENMAN, PLAINTIFF
v.
CORRECT CARE SOLUTIONS, et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This 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).

         BACKGROUND

         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 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 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 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.

         From 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 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. Claims Against Defendant Josh Patton

         Ms. 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.

         Ms. 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.

         1. Deliberate Indifference to a Serious Medical and/or Mental Health Need

         In her 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: ΒΆΒΆ ...


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