Plaintiff S Opposition to Defendants Motion to Dismiss

DOCKET NO.: CV 02 0821661)SUPERIOR COURT

)

ELAINE WISEMAN, ADMINISTRATOR)

OF THE ESTATE OF BRYANT)JUDICIAL DISTRICT OF

WISEMAN, )

)HARTFORD AT HARTFORD

vs.)

)

JOHN J. ARMSTRONG, ET AL.)JANUARY 17, 2003

PLAINTIFF’S MEMORANDUM OF LAW IN

OPPOSITION TO DEFENDANTS’ AMENDED MOTION TO DISMISS

LEGAL STANDARD

“It is well-established that in ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 326 (2001).

ORAL ARGUMENT REQUESTED

TESTIMONY NOT REQUIRED

FACTS

The Complaint alleges:

On November 17, 1999, 28-year old Bryant Wiseman died while incarcerated at the Garner Correctional Institution. Bryant was mentally ill, and at the time of his death he had been diagnosed as suffering from paranoid schizophrenia. Notwithstanding Bryant’s mental illness and notwithstanding his doctors’ knowledge that Bryant required adequate and proper anti-psychotic medication in order to control his schizophrenia, to enable him to function properly and to prevent his becoming paranoid, aggressive and disruptive, the Department of Correction’s doctors, nurses and other medical workers failed and refused to provide adequate and proper medical care, supervision and medication to him, they allowed his mental illness to go untreated and inadequately treated, and they permitted him to decompensate and to become paranoid and aggressive under circumstances that they knew would lead to violent confrontations with other inmates and correctional staff.

On November 17, 1999, after several days during which his doctors intentionally withheld required anti-psychotic medication, Bryant’s untreated mental illness caused him to become paranoid and disruptive, and as could and should have been expected, he was subsequently violently subdued and restrained by more than eight correctional officers and other Department staff. At approximately 12:45 p.m., in Cell 520 on the Inpatient Medical Unit of the Garner Correctional Institution, more than eight correctional officers and other custodial staff: forced Bryant into a face-down “hog tie” position with his feet up on the bed, his torso down on the floor, and his hands shackled behind his back; placed his legs in leg irons; used extreme and excessive force against him; compromised his respiratory system and asphyxiated him; rendered him unconscious and comatose; and ultimately killed him. After placing Bryant in hand cuffs and leg irons, the defendants continued for several minutes to hold him in the face-down hog tie position, with his feet up on the bed and his face pressed against the floor and with the weight of several correctional officers on him, while they waited for cutting shears to cut his clothes from his body so that they could perform a strip search. At this point, Bryant began to vomit, and the defendants realized that he was unconscious and comatose and had stopped breathing. Following the officer’s restraint, after Bryant had been rendered unconscious and comatose, and after he had vomited and stopped breathing, the officers finally called medical staff for assistance. Bryant’s injuries and death were due to a profound lack of training in how to properly manage and restrain mentally ill inmates.

The guards’ untrained take-down and restraint of Bryant Wiseman and his death at their hands unfortunately is not an isolated incident at the Department of Correction. Seven months before Bryant was killed, another young mentally ill man, Timothy Perry, was killed by two lieutenants and a number of guards under similar circumstances while in custody at a facility of the Department of Correction. As with Bryant Wiseman, Timothy Perry’s schizophrenia caused him to become paranoid and aggressive, and he was killed by guards while being subdued and restrained in a mental health cell. As with Bryant Wiseman, the lieutenants and guards responsible for Timothy Perry’s death held him face down on a mattress in a mental health cell, shackled him with leg irons, used excessive force against him, and, like Bryant Wiseman, asphyxiated him. The take-down and restraint procedures utilized, and the use of force perpetrated, by these lieutenants and guards were essentially identical to the take-down and restraint procedures and the use of force utilized and perpetrated by the guards who killed Bryant Wiseman seven months later.

Following the death of Timothy Perry, not one of the persons responsible for his death was appropriately punished or disciplined. Four months later, defendant Correctional Nurse Storey was actually offered a promotion. Following Timothy Perry’s death, his estate sued defendant Commissioner Armstrong, the Department of Correction, the guards and others responsible for his death. The defendants agreed to settle that lawsuit by paying to Mr. Perry’s estate $2.9 million. Notwithstanding the settlement of the case, and notwithstanding all of the evidence showing that the lieutenants and guards were responsible for killing Timothy Perry, nearly all of those persons continue to be employed by the Department of Correction and continue to hold positions of substantial authority in the Department.

Following Timothy Perry’s death, throughout the course of (a) an internal investigation conducted by the Department, (b) an investigation conducted by the Connecticut State Police, and (c) the subsequent lawsuit brought by Mr. Perry’s estate, not one of the lieutenants or guards or the nurse told the truth about how Mr. Perry was killed; rather, they hid the truth and deliberately lied in order to avoid blame and punishment for his death. Nor did these defendants tell the truth or notify Department officials about their profound lack of skill, experience, training and supervision in the handling of mentally ill and aggressive inmates and in the use of force against, and the restraint of, such inmates. Nor did any of these defendants tell the truth or notify Department officials about the urgent need for Department-wide training for all custodial staff in the proper handling of mentally ill and aggressive inmates and in the use of force against such inmates.

Similarly, at no point following Mr. Perry’s death did defendant Commissioner Armstrong or defendant Deputy Commissioner Tokarz institute meaningful, adequate and effective Department-wide training for custodial staff in the proper handling of mentally ill and aggressive inmates and in the use of force against such inmates, even though, following Mr. Perry’s death, it was known to them, and should have been known to them, that such training was urgently required. Following Timothy Perry’s death, neither the Commissioner nor Deputy Commissioner conducted, or caused to be conducted, an adequate investigation and review of Timothy’s death or of Department procedures to ensure that proper training was provided and to avoid further injury and death to mentally ill inmates such as Bryant Wiseman. As a result of the above failings, no adequate training was conducted, no precautionary procedures were instituted, no required monitoring and supervision of correctional staff was contemplated, and, as could and should have been expected and prevented by these defendants, Bryant Wiseman was killed in a nightmarish reenactment of Timothy Perry’s death only a few months earlier.

The Complaint alleges specifically that the above acts and omissions of the lieutenants, guards and Nurse Storey, and of defendants Armstrong and Tokarz, directly and proximately caused the death of Bryant Wiseman. Complaint ¶ 94.

The Complaint seeks redress from the persons and entities responsible for Bryant Wiseman’s anguish, injuries and death including, as relevant to the defendants’ current motion: (a) Commissioner John Armstrong and Deputy Commissioner Jack Tokarz, who were responsible for the hiring, supervision, training, discipline and control of persons working for the Department; (b) the entities, doctors and other medical workers responsible for diagnosing, observing and treating Bryant Wiseman; and (c) the lieutenants, correctional officers and correctional nurse who were responsible for Timothy Perry’s death, who covered up a profound and urgent need for Department-wide training in the restraint of mentally ill inmates, and whose cover-up, silence and lies are alleged to have directly and proximately caused the death of Bryant Wiseman.

Within each of the Counts that the defendants currently move to dismiss, the Complaint alleges additional facts. Specifically:

In Count Four, alleging deliberate indifference to safety/failure to protect against the lieutenants, correctional officers and nurse responsible for Timothy Perry’s death, the complaint alleges that, at no point after Timothy Perry’s death on April 12, 1999, and up until Bryant Wiseman’s death seven months later, did any of these defendants tell the full truth about how Timothy Perry was killed. In fact, in multiple sworn statements made by these defendants following Mr. Perry’s death, they lied to investigators about their acts, omissions and responsibility, about their failure to properly restrain Mr. Perry, about their failure to summon urgently needed medical care for him and about other relevant facts. By their intentional failure and refusal to honestly report the facts concerning their responsibility for Mr. Perry’s death, these defendants hid information from Department officials and profoundly hindered and interfered with those officials’ ability to prevent similar injuries and deaths in the future, including the death of Bryant Wiseman. The Complaint further alleges that each of these defendants knew: (a) that other correctional officers and medical workers in the Department of Correction had been improperly and inadequately trained to safely and properly restrain inmates, especially mentally ill inmates; (b) that other mentally ill inmates, such as Bryant Wiseman, were in the custody of the Department; (c) that correctional employees are frequently called upon to deal with and restrain mentally ill inmates in situations that require safe and proper techniques and that pose a risk of harm to the inmates; and (d) that the lack of training would inevitably lead to the injury and death of other mentally ill inmates such as Bryant Wiseman.

In Count Five, alleging a supervisory liability claim against defendants Armstrong and Tokarz for deliberate indifference to safety/failure to protect, the Complaint alleges that, following Timothy Perry’s death, and at other times before Bryant Wiseman was killed, these defendants were on actual and constructive notice that inmates, especially mentally ill inmates such as Bryant Wiseman, were at a profound risk of harm and death at the hands of correctional employees who were inadequately and improperly trained to manage, supervise and restrain such inmates. And the Complaint alleges that defendants Armstrong and Tokarz were personally involved in and responsible for the failure to protect Bryant Wiseman in that: (a) They created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the Department are allowed, permitted and/or encouraged to look the other way and to remain silent when excessive force is used against inmates in the correctional system; (b) they created a policy and custom, and they allowed the continuance of a policy and custom, under which correctional officers and other persons employed at the Department are allowed, permitted and/or encouraged to look the other way and to remain silent when it becomes clear that employees have been inadequately or improperly trained to deal with mentally ill and other inmates and when the lack of training increases the risk of harm to inmates in the correctional system; and (c) they were deliberately indifferent in supervising and training subordinates who committed the wrongful acts described in the Complaint. The defendants’ acts and omissions proximately caused Bryant Wiseman’s suffering, injuries and death.

In the Ninth, Tenth and Eleventh Counts, alleging violations of the Connecticut Patients Bill of Rights against the persons and entities responsible for diagnosing, treating and observing Bryant Wiseman, the Complaint alleges that Bryant Wiseman was a “Patient” within the meaning of the Act, that the facilities of the Department of Correction, including Garner Correctional Institution (where Bryant died), are “Facilities” within the meaning of the Act, and that the defendants intentionally failed to provide humane and dignified treatment to him, intentionally failed to treat and monitor him in accordance with a specialized treatment plan suited to his disorders, and intentionally failed to conduct, or to ensure Bryant’s receipt of, proper psychiatric examinations, all of which directly and proximately caused Bryant Wiseman’s mental illness to be improperly and inadequately treated, and all of which caused him to suffer extreme fear, agitation, and death. The Complaint specifically alleges that the named doctors and medical workers “each acted with reckless or callous indifference to Bryant Wiseman’s dignity as a human being and to his constitutional and statutory rights.” Complaint ¶ 95.

For purposes of this motion, all of the above facts must be taken as true.

ARGUMENT

A.The Fourth Count of the Complaint Properly Alleges that the Acts and Omissions of the Perry Correctional Employee Defendants Directly and Proximately Caused the Death of Bryant Wiseman.

In moving to dismiss the Fourth Count, the defendants mischaracterize the Complaint, attack claims that are not actually made, and ignore decades of governing case law concerning the personal responsibility of State actor defendants in prisoner civil rights litigation.

First, the defendants mischaracterize the substance of the Fourth Count by arguing that it concerns merely their failure to “tell the full truth about how Timothy Perry was killed.” Defendants’ Memorandum (Defs’ Mem.) at 8. They then argue that Plaintiff has no standing to assert such a claim because only Timothy Perry’s rights were violated by the defendants’ failure to tell the truth, and “[o]ne does not have standing to assert a violation of rights belonging to another.” Defs’ Mem. at 7.

This clever attack on the Complaint might have some merit if the Fourth Count were limited merely to the allegation that these defendants lied about how Mr. Perry was killed. However, the Fourth Count alleges much more than that. In fact, it asserts:

4.By their intentional failure and refusal to honestly report the facts concerning their responsibility for Mr. Perry’s death, the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS hid information from DEPARTMENT OF CORRECTIONS officials and profoundly hindered and interfered with those officials’ ability to prevent similar injuries and deaths in the future, including the death of Bryant Wiseman.

5.For example, the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS intentionally failed and refused to put DEPARTMENT officials on notice of serious deficiencies in the DEPARTMENTS’ training of correctional officers to deal with mentally ill inmates and to safely restrain inmates.

6.Each of the PERRY CORRECTIONAL EMPLOYEE DEFENDANTS knew: (a) that other correctional officers and medical workers in the DEPARTMENT OF CORRECTION had been improperly and inadequately trained to safely and properly restrain inmates, especially mentally ill inmates; (b) that other mentally ill inmates, such as Bryant Wiseman, were in the custody of the DEPARTMENT; (c) that correctional employees are frequently called upon to deal with and restrain mentally ill inmates in situations that require safe and proper techniques and that pose a risk of harm to the inmates; and (d) that the lack of training would inevitably lead to the injury and death of other inmates and mentally ill inmates such as Bryant Wiseman.

7.The defendants’ failure and refusal to tell the truth about their responsibility for Mr. Perry’s death, and to otherwise put DEPARTMENT officials on notice of the urgent need to provide proper and adequate training to correctional employees concerning how to safely restrain inmates and how to otherwise safely and properly deal with mentally ill inmates, proximately caused Bryant Wiseman’s injuries and death and violated his Fourth, Eighth and Fourteenth Amendments rights under the United States Constitution.

Complaint, Fourth Count.

Thus, while the defendants are correct that “the plaintiff ‘must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct,’” (Defs’ Mem. at 7, quoting Allen v. Wright, 468 U.S. 737, 751 (1984)), the Fourth Count more than adequately satisfies that requirement. Plaintiff does not merely allege that these defendants lied; she alleges that the defendants knew there existed a severe and imminent risk of harm and death to all mentally ill inmates in the custody of the Department of Correction, and that their lies and cover-up directly caused Bryant Wiseman’s death. The plaintiff has thus made “a colorable claim of direct injury,” Connecticut Associated Builders & Contrs. v. City of Hartford, 251 Conn. 169, 178 (1999), she has a “personal stake in the outcome of the controversy,” Maloney v. Pac, 183 Conn. 313, 320 (1981), and she clearly is the “proper party to request adjudication of the issues.” Community Collaborative v. Ganim, 241 Conn. 546, 553 (1997).