Nearly three years after Nathan Kennedy died at the North Central Regional Jail, the state settled his case for $700,000 last week.
Kennedy, 48, died within three hours of being booked, after lawyers say correctional officers pepper-sprayed him and denied him medical attention. Jesse Forbes, a lawyer of his estate, argued that by knowingly denying him medical care, the state had acted with deliberate indifference.
The accusation of deliberate indifference has been brought in multiple jail cases over the years.
Now, the West Virginia Division of Corrections and Rehabilitation and the Attorney General are asking the state’s highest court to disarm families and people who have been harmed in custody of a key legal tool.
The West Virginia Supreme Court of Appeals is scheduled to hear arguments in two cases where inmates have died and families are arguing deliberate indifference at 10 a.m. on Sept. 8.
West Virginia has some of the deadliest jails in the country, according to a 2020 report by Reuters. In some cases, those deaths were attributed to medical neglect, an issue that has landed the division in class-action lawsuits.
A jail or a prison can’t know an inmate has a medical condition or is otherwise at risk, then completely disregard it — a practice known as “deliberate indifference.” Otherwise, that’s considered cruel and unusual punishment, which is forbidden by the 8th Amendment of the U.S. Constitution.
In 2022, Forbes and attorney Dante DiTrapano won a case against the West Virginia Division of Corrections and Rehabilitation for an inmate who died at Huttonsville Prison after correctional officers ignored his illness. Two years later, the state settled a similar case in which an inmate died after being dogpiled by correctional officers in a regional jail.
But the Division of Corrections and Rehabilitation is asking the West Virginia Supreme Court of Appeals to throw out “deliberate indifference” as something for which families can seek damages.
But Forbes said that is the only way an estate or an inmate can sue the state directly. Otherwise, families seeking justice would have to sue correctional officials individually.
“So what the state is trying to say is, ‘we’re not responsible. We can’t be held responsible for anything that happens in our facility. People are tortured. People’s medical needs are ignored. You can’t come hold us accountable. Go sue the individual guard,’” Forbes said.
The state’s lawyers are opposing deliberate indifference allegations in two cases involving deaths in the regional jails, one at the Eastern Regional Jail in Martinsburg and the other at the North Central Regional Jail in Ritchie County.
Both cases bear similarities.
In October 2021, police picked up Jacqueline V. Pyles, 24, on a narcotics distribution charge. Since Pyles had been in and out of jail on drug and theft charges since turning 18, lawyers in her case argue that the NCRJ had on file her mental health history, which showed she had severe issues.
She told booking officers she was having mental health troubles as well.
Five days later, correctional officers found her dead inside her cell with a bedsheet tied around her neck.
In the ERJ case, Martinsburg Police booked Ronald Marvin Myers, 79, on felony kidnapping in June 2022. Myers, who had a litany of medical conditions, appeared disoriented when he arrived at the jail. He told correctional officers he took daily medications, but he could not recall what they were. Instead, he told them to call his wife who would know, according to court records.
The jail never called his wife. After 15 days without any medications, a doctor prescribed him heart medication. Two days later, correctional officers found him in his bunk disoriented and unable to get out. At that point, they called an ambulance, and he was taken to Berkeley Medical Center, where he later died from complications from an untreated heart attack.
The estates of both inmates have filed suit against the Division of Corrections and Rehabilitation. And both suits allege deliberate indifference to the inmates and are seeking monetary damages.
The West Virginia Supreme Court acknowledged deliberate indifference in the 1990s.
But the state’s lawyers are now asking the state’s Supreme Court to reject a route that lower courts have permitted and that the state has previously paid substantial sums to settle.
They’re arguing that deliberate indifference isn’t an allegation that can be brought for monetary damages in state court, but is part of a test to prove a constitutional violation in federal court.
Families’ lawyers wrote in response, “In fact, the State of West Virginia has been subject to these exact same deliberate indifference causes of action in a multitude of cases in West Virginia Courts over many years and has done nothing in its petition to explain how suddenly this is a matter that rises to the level of extraordinary relief.”
The Attorney General’s Office declined to comment on the case, instead pointing to a 24-page brief it filed. Attorneys for the Division of Corrections and Rehabilitation did not answer questions.
DiTrapano, who is representing the families of Pyles and Myers in the cases, said it comes down to making sure people are safe behind bars.
“We hope to be successful and make sure that the people in West Virginia, if they find themselves in such a circumstance, that it’s not going to be a death sentence for them if they get sick.”
