Johnson v. State, Dep't of Corr.

Decision Date18 May 2023
Docket Number22-cv-00029
CourtU.S. District Court — District of Vermont

(Docs. 17, 40, & 42)


Plaintiff Olynthea Johnson, administrator of the Estate of Kenneth Johnson, brings this action against Defendants State of Vermont, Department of Corrections (the Vermont DOC); Robert Wright (Officer Wright) Sirena Zahn (Officer Zahn); Brian Mercer (Officer Mercer)[1]; Centurion of Vermont, LLC (Centurion); Steven Fisher, MD (Dr Fisher); Daniel Holloway, MD (Dr. Holloway); Mary Martin (Nurse Martin); Michele Cardinal (Nurse Cardinal); Sabine Watson (Nurse Watson); and four nurses whose identities have not yet been ascertained (“Unknown Nurses”) (collectively Defendants).

Plaintiffs Amended Complaint (Doc. 27-2) (the “AC”) alleges the following claims, all of which relate to Mr. Johnson's death while he was detained at the Northern State Correctional Facility (“NSCF”) in Newport, Vermont: Count I: Medical Malpractice (against Centurion, Dr. Fisher, Dr. Holloway, Nurse Martin, Nurse Cardinal, Nurse Watson, and Unknown Nurses); Count II: Negligence (against Officer Wright, Officer Zahn, and Officer Mercer); Count III: Gross Negligence (against Officer Wright, Officer Zahn, Officer Mercer, Nurse Martin, Nurse Cardinal, Nurse Watson, and Unknown Nurses); Count IV: Failure to Train and Supervise (against Vermont DOC, Centurion, Officer Wright, and Dr. Fisher); Count V: Wrongful Death (against all Defendants); Count VI: Cruel and Unusual Punishment (against Nurse Martin, Nurse Cardinal, Nurse Watson, Unknown Nurses, and Officer Wright); Count VIII: Violation of the Right to Equal Protection (against Nurse Martin, Nurse Cardinal, Nurse Watson, Unknown Nurses, and Officer Wright).[2]

Plaintiff is represented by James A. Valente, Esq. and Zachary D. Hozid, Esq. Dr. Fisher, Nurse Cardinal, and Nurse Watson are represented by Pamela L.P. Eaton, Esq. and Stephen J. Soule, Esq. The Vermont DOC, Officer Wright, and Officer Zahn are represented by Andrew C. Boxer, Esq. and Oliver A. Abbott, Esq. Centurion and Dr. Holloway are represented by Pamela L.P. Eaton, Esq.

I. Procedural Background.

Plaintiff filed her original Complaint on December 6, 2021 in Vermont Superior Court. On February 7, 2022, Defendant Fisher removed the action to the District of Vermont. Nurse Cardinal, Dr. Fisher, and Nurse Watson filed a partial motion to dismiss on February 14, 2022. (Doc. 17.) The Vermont DOC, Officer Wright, and Officer Zahn filed a motion to dismiss on April 29, 2022. (Doc. 40.) Centurion and Dr. Holloway filed a motion to dismiss on April 29, 2022. (Doc. 42.)

While the motions to dismiss were pending, the parties disputed whether Plaintiff could file an Amended Complaint. On February 17, 2022, Plaintiff filed a motion to amend her complaint (Doc. 19), and on March 4, 2022, Plaintiff filed a second motion to amend her complaint. (Doc. 27.) The court denied both motions without prejudice for noncompliance with Local Rule 7(a)(7). On June 6, 2022, Plaintiff re-filed her second motion to amend her complaint. (Doc. 46.) Nurse Cardinal, Centurion, Dr. Fisher, Dr. Holloway, and Nurse Watson opposed this motion on June 21, 2022 (Doc. 54), and Plaintiff replied the same day (Doc. 55). The court granted Plaintiffs motion on August 4, 2022, deeming her AC filed as of March 4, 2022.[3] See Doc. 64 (Plaintiff has since complied with this court[']s Local Rules and her Amended Complaint shall be accepted and deemed filed as of March 4, 2022.”).

On August 30, 2022, the court denied as moot Nurse Cardinal, Dr. Fisher, and Nurse Watson's motion to dismiss (Doc. 17) because it pertained to Plaintiffs original complaint.[4] The court heard oral arguments on October 14, 2022, at which point the court took the pending motions to dismiss under advisement.

II. Allegations in the AC.

On September 25, 2017, Mr. Johnson, “a 58-year-old Black man . . . was ordered held without bail in [NSCF] in Newport, Vermont[.] (Doc. 27-2 at 8, ¶ 21.) On December 7, 2019, while awaiting trial, he died of asphyxiation. Officer Wright, Officer Zahn, and Officer Mercer are correctional officers employed by the Vermont DOC. Officer Wright was the “shift supervisor” at NSCF, while Officers Zahn and Mercer were “responsible for observing [Mr. Johnson] in the hours before [his] death, and ignored obvious signs that he was suffocating or, at the very least, suffering a life-threatening emergency.” Id. at 10, ¶ 28. The Vermont DOC “is required by statute to provide those in custody with health care equivalent in quality to any private medical facility in Vermont.” Id. at ¶ 27 (citing 28 V.S.A. § 801).

Centurion is a corporation that provides health care to inmates in the Vermont prison system, including through its medical staff at NSCF. Dr. Fisher “was at all relevant times the medical director for Centurion” and was “responsible for [Mr.] Johnson's medical care and the care provided at the facility housing [Mr.] Johnson through other Centurion employees.” Id. at ¶ 30. Dr. Holloway was a “medical doctor for Centurion” who was “directly responsible for [Mr.] Johnson's medical treatment related to his difficulty breathing.” Id. at 11, ¶ 31. Nurse Martin, Nurse Cardinal, Nurse Watson, and Unknown Nurses were also employed by Centurion and were responsible for Mr. Johnson's care while he was incarcerated at NSCF, “including on the day of his death.”[5]Id. at ¶¶ 32-35.

At NSCF, Mr. Johnson “interacted with [] medical staff frequently and was well known to them” because he required blood sugar readings twice per day due to his diabetes. (Doc. 27-2 at 11,¶ 38.) In the fall of 2019, Plaintiff alleges that Mr. Johnson “reported a new health issue to medical staff at NSCF: he was often short of breath, and he felt that it was due to something in his throat, as he was also having trouble swallowing and felt hoarse.” Id. at 11-12, ¶ 39.

On November 15, 2019, Mr. Johnson was “sent to medical by correctional officers[] because he felt particularly short of breath.” Id. at 12, ¶ 40. Nurse Cardinal called Dr. Holloway, the on-call medical treatment provider, “who ordered [her] to admit [Mr.] Johnson to the infirmary for observation.” Id. Thereafter, Mr. Johnson was treated with a nebulizer and prednisone for “throat swelling,” but providers did not “investigate [] whether anything was blocking his airway or throat.” Id.

Three days later, on November 18, 2019, Nurse Watson saw Mr. Johnson, who reported that the “hoarseness in his throat” was “progressively worsening.” Id. at ¶ 41. He stated that the nebulizer treatment was not alleviating his symptoms and that neither he nor anyone in his family had a history of asthma. Nurse Watson “suspected [Mr.] Johnson had chronic obstructive pulmonary disease” (“COPD”) and “prescribed more of the same treatment he had been receiving.” (Doc. 27-2 at 12, ¶ 42.) She did not seek an examination by a doctor or specialist, and she did not investigate whether something was blocking Mr. Johnson's airway.

NSCF medical staff continued to treat Mr. Johnson for COPD, even though he had not previously been diagnosed with COPD and although there was allegedly no evidence he suffered from it. Mr. Johnson's symptoms did not improve with COPD treatment. Plaintiff alleges that “at least one nurse noted in the medical records that [Mr.] Johnson had trouble speaking[,] but [h]is airway and throat were never examined.” Id. at ¶ 44.

On November 29, 2019, Mr. Johnson “reported discomfort since taking medications prescribed by prison medical for his breathing issues and said he didn't feel any improvement[.] Id. at ¶ 45. On December 1, 2019, Mr. Johnson met with Kelsey Skillin, a member of the NSCF medical staff, “to follow up on his visit to the emergency department.” Id. at 13, ¶ 46.[6] Mr. Johnson reiterated that he did not believe his breathing issues originated from his lungs. Despite this, Mr. Johnson “was not referred to a provider, and his airway and throat were never examined.” Id.

The next day, Mr. Johnson met with Nurse Watson, who noted in Mr. Johnson's medical records that the albuterol nebulizer prescribed to him was providing little relief and that he reported worsening hoarseness. On December 3, 2019, Mr. Johnson was admitted to the NSCF infirmary for shortness of breath, at which time “Nurse Watson noted that his symptoms were progressing, and that staff had observed respiratory difficulty.” Id. at ¶ 48. Despite these observations, no intervention took place.

On December 6, 2019, at approximately 6:00 p.m., Mr. Johnson “repeatedly asked correctional and medical staff for assistance” but [m]any of [his] requests were ignored, and the required observation forms do not accurately reflect his condition or the requests he made, suggesting that he was not carefully observed in accordance with DOC protocol.” (Doc. 27-2 at 13, ¶ 49.) At approximately 10:37 p.m., two fellow infirmary inmates called Correctional Officer Joseph Millett (“Officer Millett”) because they were concerned that Mr. Johnson could not breathe. Officer Millett “called a ‘10-25,' as [Mr.] Johnson gasped that he could not breathe.” Id. at 14, ¶ 52. A 10-25 is a facility-wide request for assistance, but is not an emergency call, which is designated as a “10-33.” Id. (internal quotation marks omitted). Three Unknown Nurses arrived and took Mr. Johnson's vital signs while Officer Wright...

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