McMillen v. Windham, Civil Action No. 3:16-cv-00558-RGJ-CHL

CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
Writing for the CourtRebecca Grady Jennings, District Judge United States District Court
PartiesMICHELLE MCMILLEN, Individually and as Administratrix of the ESTATE OF GYNNYA MCMILLEN Plaintiff v. REGINALD WINDHAM, ET AL. Defendants
Docket NumberCivil Action No. 3:16-cv-00558-RGJ-CHL
Decision Date26 August 2019

MICHELLE MCMILLEN, Individually and as Administratrix of the

Civil Action No. 3:16-cv-00558-RGJ-CHL


August 26, 2019

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Plaintiff Michelle McMillen, individually and as administratrix of Gynnya McMillen's estate, sues Defendants Youth Worker Supervisor, Reginald Windham ("Supervisor Windham"); Youth Worker Supervisor, Victor Holt ("Supervisor Holt"); Commissioner, Bob Hayter ("Commissioner Hayter"); Deputy Commissioner Program Director, Mark Cook ("Deputy Commissioner Cook"); Facility Superintendent, Michelle Grady ("Superintendent Grady"); Assistant Superintendent, Michael Price ("Assistant Superintendent Price"); Youth Services Program Supervisor, Brent Kimbler ("Program Supervisor Kimbler"); Counselor, Vicki Mullins ("Counselor Mullins"); Youth Worker, Lashae Newby ("Newby"); Youth Worker, Chris Johnson ("Chris Johnson"); Youth Worker, Kevin Johnson ("Kevin Johnson"); Youth Worker, Lisa Rivers ("Rivers"); and Youth Worker, Loretta Gaudern ("Gaudern") for alleged violations of the United States Constitution and Kentucky law. [DE 1, Compl.]. All Defendants except Supervisor Windham, Supervisor Holt, and Chris Johnson now move to dismiss under Fed. R. of Civ. Proc. 12(b)(6) or for summary judgment under Rule 56. [DE 59; DE 61; DE 63; DE 65; DE 114; DE 123; DE 128]. Defendants also move to exclude or limit expert testimony by David Roush [DE

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115; DE 125; DE 131] and for leave to file videos under seal [DE 126; DE 129]. Briefing is complete, and the motions are ripe.

For the reasons below, the Court GRANTS IN PART and DENIES IN PART AS MOOT the Motion to Dismiss on Behalf of Commissioner Hayter, Deputy Commissioner Cook, and Superintendent Grady [DE 59], the Motion to Dismiss and/or for Summary Judgment on Behalf of Program Supervisor Kimbler [DE 65], the Motion for Summary Judgment on Behalf of Newby, Counselor Mullins, and Program Supervisor Kimbler [DE 123], and the Motion for Summary Judgment by Defendants Commissioner Hayter, Deputy Commissioner Cook, and Superintendent Grady [DE 128]; DENIES AS MOOT the Motion to Dismiss on Behalf of Defendants Newby and Counselor Mullins [DE 63] and the Motion for Partial Summary Judgment or to Hold Action in Abeyance [DE 114]; GRANTS IN PART AND DENIES IN PART the Motion for Summary Judgment by Gaudern, Kevin Johnson, Assistant Superintendent Price, and Rivers [DE 61] and the Motions to Exclude or Limit Expert Testimony by David Roush, Ph.D. [DE 115; DE 125; DE 131]; and GRANTS the Motions for Leave to File Videos Under Seal [DE 126; DE 129].


On Sunday, January 10, 2016, the Shelbyville Police Department responded to a domestic dispute between sixteen-year-old Gynnya McMillen ("Gynnya") and her mother, Michelle McMillen ("McMillen"), at their home in Shelbyville, Kentucky. [DE 1 at ¶ 27]. After the police arrested Gynnya without a warrant, a Shelby County District Court Judge ordered Gynnya's detention at the Lincoln Village Regional Juvenile Detention Center ("Lincoln Village"), a Kentucky Department of Juvenile Justice ("KYDJJ") facility, until her scheduled court date on Monday morning. [Id. at ¶ 28].

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When Gynnya arrived at Lincoln Village, she went through an intake process that included a search for contraband. [Id. at ¶¶ 88-89]. Gynnya refused to remove her hoodie jacket, telling Chris Johnson, Kevin Johnson, Gaudern, and Rivers to "get out of [her] face." [DE 61-5 at 596]. Supervisor Holt received telephone authorization from Assistant Superintendent Price to restrain Gynnya. [DE 79 at 800-01]. After hanging up the phone, Supervisor Holt "yell[ed] and point[ed] at Gynnya and then repeatedly slap[ped] the intake desk." [Id.]. Chris Johnson restrained Gynnya's arms, after which Gaudern frisked Gynnya. [Id.; DE 61-1 at 580]. Gynnya "became combative and began kicking her legs," striking Chris Johnson in the midsection. [Id.]. Chris Johnson and Kevin Johnson applied more pressure and forced Gynnya to the ground. [DE 79-1 at 811]. Gynnya told them she was in pain [DE 79-2 at 812], and an internal investigation of the incident later revealed that Gynnya suffered injuries to her thigh and leg area [DE 79-4 at 817]. When Gynnya said she was in pain, Kevin Johnson replied that "none of this would have happened if [you] had complied with the search." [DE 79-2 at 812]. Defendants completed the search when Gynnya stopped resisting. [DE 61-1 at 580].

Defendants then placed Gynnya in a cell ("Room 423"). [DE 1 at ¶ 31]. Gaudern removed the mattress pad from Gynnya's bed, leaving Gynnya alone with a metal bed frame and without a mattress pad or blanket. [DE 1 at ¶ 31; DE 1-11, Ex. J; DE 79 at 801].

As part of Lincoln Village's rules and regulations, Lincoln Village employees needed to conduct bed checks at set intervals, including at least every fifteen minutes during sleep hours. [DE 1 at ¶ 22; DE 1-4 at 53]. During the bed checks, employees were to verify that the resident was safe and secure in the room, and then document the check on the Unit Room Observation Sheet. [Id.]. In 2013, Assistant Superintendent Price held a meeting on the importance of bed checks, including the need to make sure the youth was breathing. [Id. at ¶ 82; DE 1-27]. Assistant

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Superintendent Price stated "that he would not stand behind anyone who failed to do their jobs" and that staff conducting the bed checks "should stop at the door of each resident and make sure the youth is breathing." [DE 1-27].

Defendants placed Gynnya in Room 423 at 6:22 a.m. on January 10, 2016 and removed her later that day at 3:44 p.m. [DE 1 at ¶ 28]. During that time, the Lincoln Village staff failed to perform and falsified records for twenty-three required bed checks of Room 423. [Id. at ¶ 37]. From the time Gynnya returned to Room 423 at 5:19 p.m. until 11:39 p.m., the Lincoln Village staff failed to perform and falsified records for another twelve required bed checks of Room 423. [Id. at ¶ 38]. And from 10:35 p.m. to 11:39 p.m., Supervisor Windham personally failed to perform four required bed checks. [Id. at ¶ 39].

At 11:39 p.m., Supervisor Windham heard coughing coming from Room 423. [Id. at ¶ 40]. He went "to check on [Gynnya] to make sure she had not thrown up and was choking or something like that." [Id.] In conducting the check, Supervisor Windham looked through the narrow slit in the door for about 18 seconds, during which he saw Gynnya turn onto her right side and her left leg hanging off the bed at the knee. [Id. at ¶ 42-43]. Supervisor Windham then returned to his desk. [Id. at ¶ 43]. He falsified twenty-four more bed checks between the time he checked on Gynnya at 11:39 p.m. and the time Supervisor Holt and Youth Worker Chris Johnson discovered Gynnya the next morning. [Id. at ¶ 49].

At about 9:55 a.m. the next morning, Supervisor Holt and Youth Worker Chris Johnson entered Room 423 and tried unsuccessfully for several minutes to awaken Gynnya for transport to Shelby County District Court. [Id. at ¶¶ 70-71]. Nurse Jennifer Swiney then arrived to assess Gynnya, who was still unresponsive. [Id. at ¶ 72]. Swiney and Nurse, Paula Maupin, checked Gynnya's pulse. Swiney called 911 dispatch and said Gynnya was cold, stiff, and without

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respirations or vital signs. [Id. at ¶¶ 72-73]. Maupin, with Swiney's assistance, performed CPR on Gynnya. [Id. at ¶ 74]. Emergency personnel arrived about ten minutes later and assessed her condition. [Id. at ¶ 75]. She was dead. Hardin County Coroner William H. Lee, Jr. arrived and, with emergency personnel, placed Gynnya in a body bag and removed her from the cell. [Id. at ¶ 76].

According to McMillen's medical expert, Dr. Schwartz, Gynnya died between 11:39 p.m. and 11:44 p.m. from long QT syndrome type 2 ("LQT2") based on a disease-causing mutation. [DE 1 at ¶ 43; DE 1-18 at 114]. Dr. Schwartz testified that before Gynnya's death, there would have been nothing to indicate that cardiac arrest or death was likely to occur. [DE 146-1 at 2464]. LQT2 patients tend to die at rest or nighttime due to a cardiac rhythm called ventricular fibrillation, which produces a significant drop in blood pressure. [DE 1-18 at 114]. As blood pressure decreases and the oxygen perfusion of the brain decreases progressively, gasping occurs, which is often interpreted as coughing when heard from a distance. [Id.]. Dr. Schwartz suggested that Gynnya may have survived had she received "prompt resuscitative intervention" between the time she began exhibiting symptoms around 11:39 p.m. and when she died within the next five minutes. [Id. at 114-15].

The Justice Cabinet's Internal Investigations Branch investigated the circumstances surrounding Gynnya's death. In a Memorandum of Concern, investigator Ed Jewell concluded that the "office not only substantiated that six employees at [Lincoln Village] did not provide appropriate supervision, this office also identified other issues that in this investigator's opinion contributed to what can only be described as a breakdown in staff supervision of" Gynnya. [DE 1-8 at 77]. Among other things, Jewell concluded that there was a systematic falsification of room observation forms, including that the "staff missed and falsified sixty-five bed checks" around the

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time of Gynnya's death. [Id. at 79; DE 1 at ¶¶ 36-39]. Jewell also concluded that "[t]his systematic breakdown led to staff possibly not noticing [Gynnya] in a medically stressed state" and, at the very least, the "staff would have noticed [Gynnya] was unresponsive earlier than when she was discovered." [Id.].

McMillen, individually and as administratrix of Gynnya's estate, sued Supervisor Windham, Supervisor Holt, Commissioner Hayter, Deputy Commissioner Cook, Superintendent Grady, Assistant Superintendent Price, Program Supervisor Kimbler, Counselor Mullins, Newby, Chris...

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