IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Transcription

1 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 Joel B. Robbins, Esq. (00) Anne E. Findling, Esq. (00) ROBBINS & CURTIN, p.l.l.c. Tel: 0/-000 Fax: 0/-0 joel@robbinsandcurtin.com anne@robbinsandcurtin.com Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA () Sara Marie Phillippi, an individual, on behalf of herself and the statutory beneficiaries of Joseph Phillippi, deceased; () Angela Phillippi, an individual; and () Estate of Joseph Phillippi, a legal entity, vs. Plaintiffs, () Maricopa County, a political subdivision of the State of Arizona; () Sheriff Joseph Arpaio, in his official capacity as Sheriff of Maricopa County; () Betty Adams, in her official capacity as director of Correctional Health Services; () Registered Nurse McBride, in his individual and official capacities; () Registered Nurse J. Ablett, in her individual and official capacities; () Lt. McGlove, in his individual and official capacities; and (0) Nurse Practitioner Mansan, in her individual and official capacities, Defendants. Page of No. COMPLAINT Jury Trial Demanded

2 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 For their Complaint against Defendants, Plaintiffs Sara Marie Phillippi, Angela Phillippi, and Estate of Joseph Phillippi, allege as follows. PARTIES. Plaintiff Sara Marie Phillippi is a citizen of the United States of America and a resident of Maricopa County and was so at all times relevant to this Complaint. She is a daughter of the decedent, Joseph Phillippi.. For purposes of Plaintiffs state law wrongful death claims, Plaintiff Sara Marie Phillippi brings this matter on behalf of herself and all statutory beneficiaries of Joseph Phillippi.. Plaintiff Angela Phillippi is a citizen of the United States of America and a resident of Maricopa County and was so at all times relevant to this Complaint. She is also a daughter of the decedent, Joseph Phillippi.. Plaintiff Estate of Joseph Phillippi is a legal entity organized under the probate laws of the State of Arizona.. Defendant Maricopa County is a political subdivision of the State of Arizona.. Defendant Sheriff Joseph Arpaio is the duly elected Sheriff of Maricopa County. Defendant Arpaio is named in his official capacity.. Defendant Arpaio is a state actor and is the final policymaker for the Maricopa County Sheriffs Office ( MCSO ) and is permitted to exercise his authority as Sheriff through the use of deputies and detention officers.. Defendant Betty Adams was, at the time of the incident at issue, the director of Correctional Health Services ( CHS ) for Maricopa County. Defendant Adams is named in her official capacity.. Defendant Adams is a state actor and is the final policymaker for CHS and is permitted to exercise her authority through the jail s medical staff. 0. Defendant Registered Nurse McBride is, upon information and belief, a resident of Maricopa County and was so at all times relevant to this Complaint. Page of

3 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. Defendant Registered Nurse McBride was at all times relevant to this complaint an employee of Defendant Maricopa County and/or Defendant Arpaio, and was acting under Defendant Maricopa County and/or Arpaio s authority and control, and with Defendants express or implied permission. He is named herein in both his individual and official capacities, as such terms are used within the jurisprudence of the Civil Rights Act of, U.S.C... Defendant Registered Nurse J. Ablett is, upon information and belief, a resident of Maricopa County and was so at all times relevant to this Complaint.. Defendant Registered Nurse Officer J. Ablett was at all times relevant to this complaint an employee of Defendant Maricopa County and/or Defendant Arpaio, and was acting under Defendant Maricopa County and/or Arpaio s authority and control, and with Defendants express or implied permission. He is named herein in both his individual and official capacities, as such terms are used within the jurisprudence of the Civil Rights Act of, U.S.C... Defendant Lt. McGlove is, upon information and belief, a resident of Maricopa County and was so at all times relevant to this Complaint.. Defendant Lt. McGlove was at all times relevant to this complaint an employee of MCSO and was acting under Defendant Arpaio s authority and control, and with his express or implied permission. He is named herein in both his individual and official capacities, as such terms are used within the jurisprudence of the Civil Rights Act of, U.S.C... Defendant Nurse Practitioner Mansan is, upon information and belief, a resident of Maricopa County and was so at all times relevant to this Complaint.. Defendant Nurse Practitioner Mansan was at all times relevant to this complaint an employee of Defendant Maricopa County and/or Defendant Arpaio, and was acting under Defendant Maricopa County and/or Arpaio s authority and control, and with Defendants express or implied permission. She is named herein in both her Page of

4 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 individual and official capacities, as such terms are used within the jurisprudence of the Civil Rights Act of, U.S.C... Defendant Arpaio is responsible for the actions of his deputies and officers acting within the course and scope of their employment for purpose of Plaintiffs state law claims. Plaintiffs do not assert that Defendant Arpaio is vicariously liability for purposes of their section allegations.. Defendants Arpaio, McBride, Ablett, and McGlove are state actors as that term is used in the jurisprudence of U.S.C.. 0. The identities of other potentially responsible parties, including but not limited to the intake officer who made Mr. Phillippi s housing assignment, shall be added as discovered, consistent with the deadlines established by the Court. JURISDICTION AND VENUE. This action arises under the Constitution of the United States, particularly the Fourth, Eighth and Fourteenth Amendments, and under the laws of the United States, particularly the Civil Rights Act, U.S.C., and under Arizona law.. This Court has jurisdiction over Plaintiff s federal civil rights claim pursuant to U.S.C., U.S.C., and U.S.C... This Court has supplemental jurisdiction over claims arising under the laws of the State of Arizona pursuant to U.S.C. (c).. The acts complained of occurred within Maricopa County, State of Arizona. All defendants currently reside, or resided at relevant times, within the State of Arizona. Thus, venue is proper in the District of Arizona pursuant to U.S.C. (b).. As to Plaintiff s claims under Arizona state law, Plaintiff served a timely notice of claim upon Defendants Arpaio and Defendant Maricopa County pursuant to A.R.S. -.0, which complied in all ways with the statute, was timely served, and deemed denied by operation of statute. Page of

5 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 FACTUAL BACKGROUND. On April, 00, a concerned citizen telephoned Phoenix Police, seeking assistance for an individual laying in her front yard, who appeared to be intoxicated and possibly in need of medical assistance laying in her front yard. He was shaking and convulsing.. Phoenix Police arrived and arrested this individual, Joseph Phillippi, for trespassing. They transported him to the Fourth Avenue Jail.. Nearly four years prior, in June of 00, Mr. Phillippi had been diagnosed with a seizure disorder related to alcohol withdrawal and was prescribed Keppra, which is an anti-seizure medication. (Abrupt discontinuation of Keppra can increase the frequency of seizures.). Maricopa County s Correctional Health Services was aware of this history, as Mr. Phillippi had previously been incarcerated in the Maricopa County Jail on September, 00. Indeed, during that incarceration, Mr. Phillippi apparently suffered several seizures as a result of CHS s failure to timely provide Mr. Phillippi s medication, which ultimately required Mr. Phillippi s hospitalization. 0. CHS records document a seizure occurring at : a.m. on September, 00 in the medical tank. Mr. Phillippi had to be escorted down to the floor by another inmate during a seizure. Mr. Phillippi continued to have witnessed seizures when his Keppra was not given throughout his period of incarceration. CHS also had Mr. Phillippi s records from CIGNA medical group documenting his seizure disorder.. At his intake on April, 00, Mr. Phillippi reported that he had a history of seizures and was taking Keppra. Defendant J. Ablett noted that Mr. Phillippi appeared to be under the influence of drugs or alcohol. Mr. Phillippi was at high risk for alcohol withdrawal, but Defendant J. Ablett did not refer him for assessment or treatment, or otherwise make provision for his medication and safety. Page of

6 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. Rather, shortly after 0:00 a.m. on April, an unknown intake officer assigned Mr. Phillippi to Release Tank. Release Tank has concrete floors, walls and barriers, constituting a particular danger to persons suffering from seizures.. According to Nice Vision records, there are no cameras in Release Tank. Upon information and belief, Mr. Phillippi suffered a seizure secondary to alcohol withdrawal and abrupt discontinuation of his seizure medication. He apparently fell, striking his head against either the solid-surface fixtures or the cement cell floor. Because the room was not monitored, Mr. Phillippi was at the mercy of fellow inmates to alert the guards of his condition.. Ultimately, a man down was called around :0 a.m. when inmates banged on the cell door to attract the attention of detention officers.. When detention officers arrived and entered the Release Tank, Mr. Phillippi was still seizing, a significant fact given both his history and the apparent trauma that he had suffered. Medical staff arrived shortly thereafter.. Mr. Phillippi was found on his back on the ground with noisy respirations. His pulse was elevated and he was initially unresponsive. He remained unconscious for about five minutes and was confused upon recovering consciousness.. Detention officers escorted Mr. Phillippi to medical. Although walking, he clearly needed assistance and was unstable on his feet. His vital signs at : a.m. were concerning: blood pressure of /0, pulse, resp. 0, and O saturation at % on room air. His vital signs had only slightly improved at :0.. Defendant Lt. McGlove ordered that provisions be made for Mr. Phillippi s immediate release so that the County would not bear any financial burden for the medical treatment of Mr. Phillippi. Nice Vision is the security camera system utilized within the Fourth Avenue Jail. Page of

7 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. Upon information and belief, Defendant Mansan endorsed the nonemergent nature of Mr. Phillippi s medical condition, notwithstanding his seizures, fall, and significant loss of consciousness. 0. At :, the triage nurse, Defendant Registered Nurse McBride, finally called for transport. Rather than conveying Mr. Phillippi s emergent condition, Defendant McBride opted to accept transport within thirty minutes without lights and sirens. In his call seeking medical transportation, Defendant McBride made it explicitly clear that the County was not to be billed for the medical services.. A true and correct copy of the transcript of Defendant McBride s telephone call seeking an ambulance is attached hereto as Exhibit.. Upon information and belief, medical staff at MCSO administered Ativan at :0 and only then applied oxygen.. Southwest Ambulance was on scene at :0 and left medical shortly thereafter. Mr. Phillippi s neurological condition had substantially deteriorated. He was not oriented to place or time, was dazed, tremulous, and diaphoretic. He became agitated, less alert, and pale.. Transport to the hospital began at :, nearly an hour and half after the trauma. At :0, Mr. Phillippi became unresponsive. Upon admission, Mr. Phillippi had a Glasgow Coma Scale of and was found to have a massive subdural hematoma with very poor neurological prognosis. Life support was discontinued on April, 00. The medical examiner concluded that Mr. Phillippi died as a result of blunt force trauma to his head.. The Sheriff has a non-delegable duty for the care, custody, and control of inmates within the jail system. Correctional Health Services provides healthcare services to inmates incarcerated in the Maricopa County jail system.. The health care system within the jail has chronic and longstanding problems in the delivery of medical care. Currently, the jail medical system is being operated without accreditation. Page of

8 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. One of the primary areas of concern for CHS is its inability or unwillingness to track chronic illness, including seizure disorder, among inmates.. CHS is also deficient in its assessment, monitoring, and treatment of inmates in acute alcohol withdrawal.. CHS has also had numerous problems in delivering needed medications, particularly unusual or non-formulary medications. For pretrial detainees, the first days of incarceration are often the riskiest. CHS fails to provide adequate screenings to pretrial detainees, provides negligent and inadequate care, fails to timely transport inmates to appropriate care facilities, fails to maintain adequate medical records, maintains improper medication prescribing practices, and maintains inadequate staffing of medical health staff. When something does go wrong, both MCSO and CHS are quick to make it someone else s problem. Upon learning that Mr. Phillippi had been injured, a detention officer was directed to expedite Mr. Phillippi s release, even though he needed emergency medical services. 0. Concern that Mr. Phillippi not be the County s problem was apparent from medical staff. Defendant McBride was clear with his priorities, evidenced by his telephone call seeking an ambulance. Exhibit. Even though Mr. Phillippi was injured while incarcerated, Defendant McBride told the ambulance dispatch that this was a private call. It s not going to be billed to us. He approved a thirty-minute response time even though Mr. Phillippi was emergent and needed immediate medical care. And as far as destination, that will be between him and your crew.. As a direct result of the initial intake decisions in this matter, as well as Defendants response to Mr. Phillippi s seizures and fall, Mr. Phillippi died. CLAIMS FOR RELIEF Count One U.S.C.. The foregoing paragraphs are incorporated as though fully set forth herein. Page of

9 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. The Due Process Clause of the Fourteenth Amendment to the United States Constitution forbids a state actor from being deliberately indifferent to the medical needs of a pretrial detainee.. In the present matter, Defendants Maricopa County and/or Defendant Arpaio (in his role as the final policymaker for the Maricopa County Sheriff s Office) demonstrated deliberate indifference to the medical needs of Joseph Phillippi through their policies, practices, and procedures, including but not limited to: Failing to adopt or implement intake screening practices to determine the medical needs of incoming inmates; Failing to adopt or implement procedures for assessing, monitoring, and/or treating inmates experiencing acute alcohol withdrawal; Failing to adopt or implement procedures for delivering needed medications, particularly unusual or non-formulary medications; Assigning inmates with significant risks of seizures to housing units with hard or cement floors and abutments that create a serious risk of injury for an inmate experiencing a seizure; Actively discouraging its detention officers and medical personnel from seeking emergency medical treatment for inmates in evident need of such emergency medical treatment; and Utilizing a quick release procedure to dump inmates with significant and emergent medical conditions so that any emergency medical provision would become the financial responsibility of the released inmate rather than the County, even if the medical condition was sustained within the Maricopa County Jail.. Defendant J. Ablett was also deliberately indifferent for, among other things, failing to ensure that incoming inmate Joseph Phillippi received his needed antiseizure medication, and by failing to place Mr. Phillippi in sufficient medical housing, Page of

10 Case :0-cv-00-GMS Document Filed 0/0/0 Page 0 of 0 0 rather than allowing him to be assigned to a unit that created a significant risk of harm for an inmate at risk of seizure activity.. Defendants McGlove and McBride were also deliberately in failing to seek emergency care for an individual in obvious need of prompt medical treatment, having experienced a seizure, struck his head, and unconscious for a significant period of time. Defendant Registered Nurse McBride was further deliberately indifferent for actually encouraging the ambulance to respond on a non-emergent basis, and for literally dumping a hemorrhaging individual onto the street solely to avoid any financial obligation by the County.. As a direct and proximate result of Defendants deliberate indifference, Joseph Phillippi died.. Plaintiffs, and each of them, are entitled to recover damages for their economic losses sustained as a result of Mr. Phillippi s death, including but not limited to medical expenses, funeral expenses, and loss of income, for loss of enjoyment of life, for pre-death pain and suffering, and for post-death pain, suffering, and grief.. In addition, Defendants conduct in this matter breached Plaintiffs Sara Marie Phillippi and Angela Phillippi s own Due Process right of familial association, for which they are separately entitled to recovery in this matter. Count Two Negligence and/or Gross Negligence 0. The foregoing paragraphs are incorporated as though fully set forth herein.. Defendants had and have a non-delegable duty for the care, custody, and control of inmates within the jail system.. Defendants breached this duty of care for the reasons set forth herein, including their failure to provide Mr. Phillippi with his alcohol withdrawal medication, assigning him to a housing unit that created a high risk of harm to inmates at risk for seizure activity, and by failing to seek emergent medical care for Mr. Phillippi after he sustained a significant head injury. Page 0 of

11 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0. As a direct and proximate result of Defendants negligence and/or gross negligence, Joseph Phillippi died.. As a further result of Defendants negligence and/or gross negligence, Plaintiffs, including the Estate of Joseph Phillippi and the other statutory beneficiaries of Joseph Phillippi, suffered harms and losses including, but not limited to: () the loss of love, affection, companionship, care, protection, and guidance since his death and in the future; () the pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and to be experienced in the future; () medical expenses; and () the income and services that have already been lost as a result of his death and that to be lost in the future. Count Three Article, Sections and of the Arizona Constitution. The foregoing paragraphs are incorporated as though fully set forth herein.. Article, section of the Arizona Constitution guarantees persons due process of law, and Article, section of the Arizona Constitution forbids cruel and unusual punishment. For the reasons set forth herein, Defendants conduct violated these constitutional provisions.. As a direct and proximate result of Defendants breach of the Arizona Constitution, Joseph Phillippi died.. As a further result of Defendants breach of the Arizona Constitution, Plaintiffs, including the Estate of Joseph Phillippi and the other statutory beneficiaries of Joseph Phillippi, suffered harms and losses including, but not limited to: () the loss of love, affection, companionship, care, protection, and guidance since his death and in the future; () the pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and to be experienced in the future; () medical expenses; and () the income and services that have already been lost as a result of his death and that to be lost in the future. Page of

12 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 Count Four Wrongful Death, A.R.S., et seq.. The foregoing paragraphs are incorporated as though fully set forth herein. 0. As described above, Defendants are either vicariously responsible for the conduct of Maricopa County or Sheriff Arpaio s employees or agents, whether named or unnamed, or directly responsible for the death of Mr. Phillippi.. Pursuant to A.R.S. -, et seq., liability for wrongful death exists if a person s death is caused by wrongful act, neglect or default. In this matter, Defendants wrongful act, neglect or default includes negligence, gross negligence, violation of the United States Constitution, and violation of the Arizona Constitution.. Sara Marie Phillippi, as a surviving child of the decedent is entitled to maintain an action for wrongful death against Defendants, and for such losses and injuries suffered by all statutory beneficiaries of decedent. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: A. For special damages, including but not limited to funeral and burial expenses; B. For lost wages, income, and other economic losses; C. For other general damages, including but not limited to pain and suffering, loss of enjoyment of life and wrongful death; D. For exemplary damages to the extent permitted by law; E. For taxable costs and pre- and post-judgment interest to the extent permitted by law; F. For attorney s fees pursuant to U.S.C. ; and G. Such other relief as the Court deems just and proper. Page of

13 Case :0-cv-00-GMS Document Filed 0/0/0 Page of 0 0 jury. JURY DEMAND Plaintiff respectfully requests a trial by jury on all issues in this matter triable to a DATED this th day of April, 00. ROBBINS & CURTIN, p.l.l.c. By: I:\Clients Robbins & Curtin\Phillippi, Joseph (deceased) (PNC)\Pleadings\Complaint.doc Page of s/anne E. Findling Joel B. Robbins Anne E. Findling 0 E. Bethany Home Road, Suite B-00 Attorneys for Plaintiff