Dunning v. Varnau
| Decision Date | 30 September 2015 |
| Docket Number | Case No. 1:14cv932 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | George Dunning, Jr., et al., Plaintiffs, v. Judith A. Varnau, et al., Defendants. |
OPINION & ORDER
This matter is before the Court upon Defendant Brown County and the Brown County Board of County Commissioner's ("Brown County") Motion to Dismiss. (Doc. 12). Also before the Court is Defendants Judith and Dennis Varnau's ("the Varnuas") Motion to Dismiss. (Doc. 14). These motions have been fully briefed. (Docs. 23, 24, 25, 27).
This case arises from the Brown County Coroner's investigation and determination of the cause of death of Zachary Goldson, an inmate found dead in his cell at the Brown County Jail. The following facts are contained in the Amended Complaint. (Doc. 10).
Dwayne Wenninger is the Brown County Sheriff. (Doc. 10, ¶ 9). In 2008, Defendant Dennis Varnau ran against Wenninger and was unsuccessful in removing him from office, losing both the election and a series of legal challenges against Wenninger.1(Id., ¶¶ 10-11).
In November 2012, Defendant Dr. Judith Varnau, Dennis Varnau's wife, was elected Brown County Coroner. (Id., ¶ 13). Plaintiffs claim that before becoming coroner, Dr. Varnau did not have any formal anatomical, clinical or forensic pathology experience. (Id.) Dr. Varnau has authorized her husband Dennis to act on her behalf. (Id., ¶ 4).
Zachary Goldson was arrested on September 26, 2013 for possessing a shortened .22 caliber firearm. (Id., ¶ 18). Before his arrest, Goldson planned to harm himself, even specifying what shoes he wanted to be buried in. (Id., ¶ 19). Goldson knew several law enforcement agencies were investigating him for his involvement in other crimes, including ten felony charges related to burglary, theft, receiving stolen property and possession of controlled substances. (Id.)
On October 4, 2013, Goldson was taken to the Southwest Regional Medical Center ("SRMC") after he swallowed a pen, toothbrush and plastic tube. (Id., ¶ 20). Once the objects were removed, Goldson was returned to jail and placed on medical watch. (Id.) Goldson was placed in a cell away from the general population although, unbeknownst to Plaintiffs, Goldson suffered from anxiety anytime he was left alone.2(Id., ¶ 21).
Due to continued complaints about his abdomen, Plaintiff Bradley "Zane" Schadle arranged for Deputy Travis Justice to take Goldson back to SRMC. (Id., ¶ 22). SRMC referred Goldson to Anderson Mercy Hospital for further treatment. (Id.) On the walk back to the police cruiser at SRMC, Goldson unlocked his handcuffs and shackles and struck Deputy Justice from behind. (Id., ¶ 23). Goldson then cut Deputy Justice near his left eye, attempted to gain control of his firearm and pinned him to the ground. (Id.) Four hospital staff members witnessed the altercation, called 9-1-1 to report a fight and then proceeded to help restrain Goldson and prevent his escape. (Id.) At 2:26 a.m. on October 5, 2013, Plaintiff Deputy Ryan Wedmore and Corporal Larry Meyer from the Brown County Sheriff's Office arrived at the scene. (Id., ¶ 25). Two officers from the Georgetown Police Department were present as well. (Id.) The officers subdued andre-cuffed Goldson. (Id., ¶ 23).
Goldson, after he was restrained, apologized for what he did and explained to officers that he had a sick child at home dying of SIDS. (Id., ¶ 25). Based on his recent history and comments that he had previously made regarding taking his life, officers believe that Goldson assaulted Deputy Justice in the hope that he would be shot so that he could avoid taking his own life. (Id., ¶ 24).
At 2:32:28 a.m. on October 5, 2013, six minutes after Wedmore first learned that Goldson assaulted Deputy Justice, Goldson and the officers pulled into sally port at the Brown County Jail. (Id., ¶ 27). Jail surveillance footage shows Goldson's movements about the common areas of the jail, but cameras are not permitted to film inside the cells. (Id., ¶ 29). At 2:32:54 a.m., Plaintiffs Corporal Jason Huff and Wedmore observed Goldson being placed in his cell by Plaintiffs Zane Schadle and Deputy George "Bill" Dunning. (Id.) Schadle and Dunning were in Goldson's cell for 96 seconds, removing his restraints and confiscating his shoes and blanket. (Id., ¶ 28). The officers left Goldson's cell at 2:34:30 a.m. and the cell door closed at 2:34:36 a.m. (Id.)
Twenty-one minutes later, at 2:58:18 a.m. on October 5, 2013, Schadle found Goldson hanging from a knotted bed sheet wrapped around a steel pipe located between the ceiling and the escutcheon plate above the sprinkler head. (Id., ¶ 30). Correction Officer Sarah McKenzie and Dunning entered the cell with Schadle. (Id., ¶ 31). Dunning immediately cut down Goldson while Schadle and McKenzie held Goldson. Upon being cut down, Goldson was handcuffed to guard against an assault. (Id.) Schadle immediately performed CPR in attempt to resuscitate Goldson. (Id.) McKenzie called the Communications Center for life squad. (Id., ¶ 32). Goldson waspronounced dead by the responding EMS personnel at 3:11 a.m. (Id.)
The Sheriff's Office reported the in-custody death to Dr. Varnau. (Id.) The Sherriff's Office also requested an independent review of Goldson's death by the Ohio Bureau of Criminal Investigations ("BCI"). (Id., ¶ 33). All video surveillance was preserved and given to BCI for their investigation. (Id.)
Just after 11:00 a.m. on October 5, 2013, the Montgomery County Coroner's Office performed Goldson's autopsy. (Id., ¶ 34). Dr. Susan Allen, who is a forensic pathologist and certified in clinical, anatomic and forensic pathology, performed the autopsy. (Id.) The autopsy revealed a ligature mark and abrasions on the front of the neck, consistent with Goldson hanging himself with a bed sheet. There were also abrasions on his ankles, which were attributed to wearing shackles. (Id.) There was no other bruising or internal injuries. (Id.) Dr. Allen's opinion, to a reasonable degree of medical certainty, was that the cause of Goldson's death was "hanging by the neck" and consistent with a suicide. (Id.)
Dr. Kent Harshbarger, the Montgomery County Coroner who is also certified in clinical, anatomic and forensic pathology, reviewed the autopsy performed by Dr. Allen. (Id., ¶ 35). The first draft of the autopsy report specified hanging as the cause of death until Dr. Varnau expressed her disagreement. (Id.) The result of their discussion was a complete omission of the cause of death in the autopsy report. (Id.)
After hearing about Goldson's death, Dr. Varnau went to the Brown County jail and inspected Goldson's cell and began questioning the factual accounts of the events that had taken place that morning. (Id., ¶ 36). On October 6, 2013, Dr. Varnau reported Goldson's death to Jessica Little, the Brown County Prosecutor, and told Little that shelearned from an anonymous source that a deputy stated that there was going to be a "block party" for Goldson when he returned to jail after assaulting Deputy Justice. (Id., ¶ 37).
Fifty-three days later, on November 27, 2013, Dr. Varnau requested the video footage of the hallway adjacent from Goldson's cell. (Id., ¶ 38). The Sheriff's Office was unable to provide that footage because, as per standard operating procedure and automated controls in the video surveillance system, the footage had been taped over after thirty days. (Id.) However, BCI was still in possession of a copy of the requested footage, so Deputy John Schadle directed Dr. Varnau to get the video footage from BCI. (Id.)
On November 30, 2013, Dr. Varnau wrote on Goldson's death certificate that the manner of death was a homicide by strangulation. (Id., ¶ 39). Dr. Varnau specified that the strangulation was caused by a nylon leash, called a hobble strap, which is used by police officers as a restraint. (Id.) The Varnaus authored a "Coroner's Investigative Report on Death of Zachary Goldson—October 5, 2013" based on the information they collected from the investigation. (Id., ¶ 40). The Varnaus published this report knowing that BCI was still conducting its investigation and Prosecutor Daniel "Woody" Breyer had been appointed to present evidence for possible criminal charges against Plaintiffs to the grand jury. (Id.)
The Varnau's report indicated that the evidence clearly demonstrates that Goldson could not have committed suicide. The report stated that Goldson was found hanging from the sprinkler head, which can only bear forty pounds. (Id., ¶ 41). However, Goldson was found hanging from a bed sheet wrapped around a steel pipe between theescutcheon plate and the ceiling. (Id.) According to the Varnaus' report, Goldson would not have been able to tie the bed sheet to the sprinkler assembly in less than six minutes. (Id., ¶ 42). The report cites to an anonymous consultant who said that he was not able to fasten a sheet to the sprinkler without falling down. (Id.) The report also referenced four tight knots in the bed sheet, even though the BCI investigation did not indicate there were any knots in the bed sheet. (Id.) The report concludes that Goldson's cell was staged prior to Goldson's return. (Id.)
The report also accused Plaintiff John Schadle of destroying evidence and covering up Goldson's murder by replacing the sprinkler head in Goldman's cell. (Id., ¶ 47). The Varnaus also called into question the actions of Officer Schadle upon finding Goldson, denying that he cuffed Goldson before administering CPR. (Id., ¶ 48). The report notes, "[i]f CO Schadle was concerned about Mr. Goldson coming to in a fighting condition, it would have been much quicker to attach handcuffs to one hand and the other to the clevis on the bunk wall, allowing Mr. Goldson to lie on his back for CPR." (Id.)
Upon examination of the body in their livor mortis analysis, the Varnaus concluded that Goldson must have died on his backside due to the lack of sufficient blood pooling on the feet and legs,...
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