William Carter Amended Complaint

8/20/2019 William Carter Amended Complaint

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Exhibit A

Case 1:15-cv-00417-JB-LF Document 177-1 Filed 01/15/16 Page 1 of 36


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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO

Civil Action No. 1:15-cv-00526 JB/LF

CHARLES CARTER, Personal Representative of the Estate of WILLIAM “BILLY” CARTERand individually,

Plaintiffs,v.

BOARD OF COUNTY COMMISSIONERS FOR SAN JUAN COUNTY, a/k/aSan Juan County and San Juan County Detention Center,SAN JUAN REGIONAL MEDICAL CENTER,THOMAS C. HAVEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITYAS ADMINISTRATOR OF SJCDC,CINDY KETCHAM, INDIVIDUALLY,RAMONA HOWARD, RN, INDIVIDUALLY,MARY ANN BRINKERHOFF, RN, INDIVIDUALLY,

Defendants. ______________________________________________________________________________

FIRST AMENDED COMPLAINT

COME NOW the Plaintiffs, by and through their attorneys, and complain as follows:

I. INTRODUCTION

1. Charles Carter was an inmate at the San Juan County Detention Center who died

on February 13, 2015 as a result of deliberately indifferent medical care by the Defendants.

!" Mr. Carter died of breathing problems that went without treatment and his

prescribed medication despite frequent complaints and requests for diagnostic medical care for

his very serious medical condition.



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3. Jail nurses repeatedly ignored emergency symptoms and Mr. Carter’s requests for

help, and, as part of a widespread habit practice and custom, treated his known serious medical

condition as being faked rather than serious, resulting in his death.

II. JURISDICTION AND VENUE

4. This action arises under the Constitution and laws of the United States and is

being brought pursuant 42 U.S.C. § 1983.

5. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, 1343 and

1367. Jurisdiction supporting Plaintiffs’ claim for attorneys’ fees and costs is conferred by 42

U.S.C. § 1988.

6. Venue is proper in the District of New Mexico pursuant to 28 U.S.C. § 1391(b).

All of the events alleged herein occurred within the State of New Mexico, and all of the parties

were residents of the State at the time of the events giving rise to this litigation.

7. Supplemental pendent jurisdiction is based on 28 U.S.C. § 1367 because the

violations of federal law alleged are substantial and the pendent causes of action derive from a

common nucleus of operative facts.

8. Notice was given to the County under the Tort Claims Act.

III. PARTIES

9. At all times relevant hereto, the decedent, William “Billy” Carter was a citizen of

the United States of America and a resident of San Juan County, New Mexico.

10. Plaintiff Charles Carter was a citizen of the United States of America and a

resident of the State of New Mexico. He sues as duly appointed personal representative of the

Estate of William “Billy” Carter, for his heirs, including Billy Carter’s children, and individually



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as Mr. Carter’s brother.

11. Defendant San Juan Regional Medical Center (“SJRMC”) is a New Mexico

corporation doing business in New Mexico pursuant to a contract with San Juan County to

provide incarcerated inmates with in house medical care at the San Juan County Detention

Center since February 17, 2014 to present. This Defendant’s principal place of business is 801

W. Maple Street, Farmington, New Mexico.

12. SJRMC is a proper entity to be sued under 42 U.S.C. § 1983 for its deliberately

indifferent policies, practices, habits, customs, procedures, training and supervision of staff,

including of individual nursing Defendants, with respect to the provision of medical care and

treatment for inmates.

13. At all relevant times, SJRMC and its staff were acting under color of state law and

performing a central function of the County.

14. SJRMC is also properly sued for negligence, as it is a private corporation and not

entitled to immunity under the Torts Claims Act.

15. SJRMC is sued directly and vicariously for negligence, negligent supervision,

negligent training of their staff, for failing to ensure the provision of appropriate care in the

treatment of Mr. Carter, and for the acts and omissions of their agents and/or employees, while

acting within the scope and course of their employment.

16. At all times relevant hereto Defendant Cindy Ketcham, R.N., was a citizen of the

United States and a resident of New Mexico, Defendant Ketcham the Health Services

Administrator for SJRMC and the Director of Nursing for the jail’s medical care, employed by

SJRMC and acting under color of state law.



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23. San Juan County is liable under the non-delegable duty doctrine for the deliberately

indifferent policies of SJRMC.

IV. STATEMENT OF FACTS

24. As a result of deliberate indifference to his serious medical needs, Billy Carter

was found dead in his cell on February 13, 2015.

25. According to the Office of Medical Investigators, Mr. Carter died of Chronic

Obstructive Pulmonary Disease (“COPD”).

26. Mr. Carter was not at the end stage of his COPD, but his breathing issues were

treated with such deliberate indifference and reckless disregard that he prematurely passed away

of this treatable condition.

27. Mr. Carter was diagnosed with COPD and also with Asthma. As a result of these

diagnoses, he was prescribed two types of inhalers.

28. One of these inhalers, QVAR, is a long acting type of inhaler that should not be

suddenly stopped because doing so can result in serious harm and even death.

29. These types of long acting inhalers are used as a ‘controller’ medication for

asthma or COPD and taken every day, twice a day, for prevention of symptoms.

30. These long acting inhalers are also usually used in combination with a quick

acting or “rescue medication” designed for rapid relief of symptoms.

31. Mr. Carter’s other inhaler, Ventolin, is a fast acting ‘rescue’ inhaler that treats

periodic flare-ups that are not handled by the long acting inhaler.

32. Defendants, with deliberate indifference, failed to continuously provide Mr.

Carter with his daily QVAR during the last weeks of his life as needed and prescribed.



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40. Mr. Carter also suffered from significant leg pain, making walking extremely

difficult.

41. Throughout his incarceration, some members of the nursing staff would bring Mr.

Carter his inhalers, but others, including Ramona Howard, deliberately indifferently forced him

to walk to Medical if he wanted to get them, a walk she knew he often couldn’t complete

because of pain.

42. Also in early February, Mr. Carter complained of a bleeding abscess on his leg,

requesting duck tape to cover it, constipation, and not feeling well.

43. He also repeatedly complained about dizziness.

44. Ann Palmer, Nurse Practitioner, ordered the QVAR prescription to continue on

January 29, 2015, but it was not provided until February 12, 2015, the day before his death. A

nurse charted acknowledgment of this order on February 2, already a five-day delay, but, with

deliberate indifference, took no effective action to obtain or deliver this needed and serious

medication to the patient.

45. As a result, Mr. Carter died on February 13, 2015.

46. According to the Sheriff’s Investigation, video footage on February 12, 2015,

shows Mr. Carter walking toward the washer/dryer when he dramatically took ill and “appears to

lie down on the floor.”

47. The investigator also “observe[d] darkened area to the right and below the

subject.”



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48. At 4:37 a.m. on February 12 th, officers called a medical response because Mr.

Carter had fallen down, stating he was feeling nauseated and dizzy. He was nauseous and

vomiting and was brought to medical for observation.

49. Officer Martinez and Officer Johnhat reported to investigators that Mr. Carter

“collapsed”, and he and other responders to the Medical Response found Mr. Carter “slumped

over by the washer and the dryer.”

50. Officer Dollar reported that this was the “second medical response on him.”

51. A medical response is called when an inmate has an urgent need and medical staff

responds to the cell, rather than having the inmate brought to them. Obviously Mr. Carter had

another significant medical need earlier on the 12 th or late night on the 11 th of February 2015, but

nurses recklessly or intentionally failed to document this need or this record was lost and/or

destroyed.

52. Nurse Brinkerhoff brought Mr. Carter to medical but conducted no meaningful

nursing assessment.

53. After collapsing on the floor, Nurse Brinkerhoff did not even take Mr. Carter’s

vitals or oxygen levels, despite his well known respiratory needs and personal awareness that he

had been deprived of his necessary long acting inhalers for weeks due to the nursing team’s

failure to secure his prescribed medications.

54. Mr. Carter also reported to this nurse that he hadn’t slept in 5 days.

55. Nurse Brinkerhoff reports that Mr. Carter was nauseated and had vomited, but

again makes no attempt to find out why.



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56. Nurse Brinkerhoff also failed to secure any doctor evaluation or diagnosis as to

why Mr. Carter suddenly collapsed on the floor.

57. Nurse Brinkerhoff also made no chart entry of the first urgent Medical Response

call referenced by Officer Dollar.

58. There are no medical notes indicating assessments or even that nursing staff

checked on Mr. Carter despite his recent change of condition between 4:37 a.m. and 11:20 a.m.

on February 12, 2015.

59. At 11:20 a.m. on February 12, 2015, Ramona Howard, RN, was called back to

evaluate Mr. Carter, this time in response to him bleeding and reporting dizziness.

60. He told her: “I haven’t slept in 5 days.”

61. According to Defendant Nurse Howard, he also “smashed his elbow against

bunk”, causing bleeding.

62. Mr. Carter was acting combative and trying to hurt himself.

63. Reportedly, when Nurse Howard attempted to get Ms. Carter up in order to place

a mattress on his bunk, which he did not have at the time despite being very sick, he “tried to pull

away from me and bang his head against the rail of the metal bunk.”

64. Lack of adequate oxygen or inadequate respiration is well known to cause

combativeness, erratic behavior, dizziness and insomnia. Patients with inadequately controlled

COPD or Asthma, like Mr. Carter without his inhalers for weeks, are at high risk for lack of

adequate oxygen.

65. This behavior was significant and constitutes a known serious change in

condition.



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66. Defendant Nurse Howard performed no nursing assessment.

67. Despite Mr. Carter’s well-known life-threatening respiratory conditions, lack of

inhalers, history of medical issues throughout the day, and known serious change in condition,

Nurse Howard did not even take Mr. Carter’s vitals or a pulse ox measurement.

68. It is deliberately indifferent to deprive an inmate of needed medication and to

utterly fail to assess a dramatic change in condition in a patient with a known history of COPD

and Asthma.

69. Nurse Howard chose not to call a doctor regarding these serious undiagnosed

changes in her patient’s condition.

70. There are no medical notes from 11:20 a.m. on February 12, 2015 until 7:40 a.m.

on February 13, 2015, when Mr. Carter was found dead by Officer Arviso.

71. At around 7:30 a.m. on February 13, 2015, Officer Arviso noticed that Mr. Carter

was lying naked in his bed face down.

72. Taking his clothes off was further erratic behavior for Mr. Carter.

73. When Officer Arviso checked on him, Mr. Carter was dead.

74. A medical response was called at 7:40 a.m. on February 13, 2015, because Mr.

Carter was found in a prone position, unresponsive to verbal or tactile stimulations.

75. His skin was cool and pale.

76. An ambulance was called but he was already dead.

77. Nurse Yvonne Valles started CPR. Before she began CPR, Nurse Valles remarked

to Sergeant Lasater, “inmate Carter was dead but she still had to do this.”



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78. The Sherriff’s office conducted an investigation into Mr. Carter’s death, which

included talking to a number of inmates who, as is common in the related cases, tell a very

different story than the involved derelict medical providers.

79. Thus the investigator found that Mr. Carter had been “complaining on a regular

basis, through medical kites, about his current health, requesting additional medical care.”

80. The Investigator also noted that: “Mr. Carter had been claiming he needed his

inhalers but had not been receiving them. It was notated in his file that his inhalers were out and

that more had been ordered and they would be provided to him when they were back in stock.”

81. Officer Arviso reported to Sheriff investigators that Mr. Carter had been

complaining that he hadn’t slept in days, and that he had stomach pain and back spasms. He said

that Mr. Carter was continuously in bed.

82. Two inmates told the Sheriff Office Investigators that Mr. Carter “was in a bad

way and was not receiving the medical care he required.”

83. Both inmates told the investigators that other inmates “would often go out of their

way to contact jail staff, attempting to get medical care for Mr. Carter.”

84. Other inmates reported that Mr. Carter frequently had trouble breathing and

coughing spells and he would often “struggle to get to the medication cart just to be told his

medication was not on that cart. This is their way of saying ‘they don’t have any.’”

85. Inmates were actually frequently disciplined or threatened with discipline for

attempting to obtain medical help for Mr. Carter.

86. Thus Clifford Rogers reported:

I have also watched Billy set in the yellow for long periods of time awaiting help fromstaff. If any inmates attempt to help we were always asked if we have a medic lic. Well



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we don’t’ so we are not to do a thing or help or this could result in disciplinary such asloss of visits or loss of commissary or loss of personal phone calls of which havehappened and are very real punishments here at San Juan Detention Center. There ismuch more I know, but to be quite honest I am afraid of more retaliation from thisDetention Center and the Medical Staff while I am in this Detention Center and theMedical Staff while I’m in this detention center. I’m not able to bond out due to money.But if I was able to get out I could blow the lid off this place just on how Billy Carter wastreated...

87. Lariet Charles, another inmate, reported:

What I can remember about the way that they treated Billy Carter was that they didn’tcare. Just looking at Billy you knew he was sick. Almost everyday Bill would startcoughing and you could see and hear him spitting up stuff. It seemed the coughing fitswere getting longer and worst. Towards the end, the new nurses would not give Billy themeds that he needed … It’s not the first or last time that they have done this.

88. Officer Crockett was also interviewed related to the death of Mr. Carter.

89. Officer Crockett told investigators that Mona, believed to be Ramona Howard,

told Officer Crockett that Mr. Carter was “faking dizziness”, attempting to fall face first as part

of this faking.

90. This nurse callously and recklessly stated that Mr. Carter did “not need to be in

medical, that there was nothing they could do for him.”

91. This utter deliberate indifference is exactly how she approached her assessment of

Mr. Carter, refusing to even take his vitals or check the oxygen level of this patient she had

already improperly concluded did not have a breathing problem, despite his respiratory

diagnoses.

92. According to Officer Crockett, Nurse Howard merely flipped through a stack of

medical requests by Mr. Carter and said “OH Great!” and then telling Officer Crockett that she

had “already addressed them.”



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93. Nurse Howard admitted to this officer that she was “not reading the requests or

taking them seriously.”

94. Thus, Officer Crockett reported Mr. Carter “was not taken seriously when he was

complaining about medical matters.”

95. According to Officer Crockett as reported by the Sheriff’s Investigator: “this is an

ongoing issue with the medical staff at the jail, not taking medical requests seriously and talking

about the inmates faking their illnesses.”

96. Also according to Officer Crockett, the “medical staff appears bothered by the

inmates, and their relentless requests.”

97. Nurse Howard actually admitted that she was not taking Mr. Carter seriously in

his illness.

98. Nurse Howard actually told the investigator that Mr. Carter was an “angry little

man” who was “always complaining.”

99. She specifically said he was complaining about not being able to keep inhalers on

him, and that she made him walk to medical to get them.

100. Defendant Howard shockingly told the Sheriff investigator that she didn’t believe

Mr. Carter even had a breathing problem.

101. Rather, she said that Mr. Carter, who died from untreated Chronic Obstructive

Pulmonary Disorder, merely had “attention seeking behavior” and that “when she is in charge;

he does not have a breathing problem.”



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102. She thus diagnosed Mr. Carter as not really having a breathing problem, but rather

had attention-seeking behavior; a diagnosis that she knows is completely outside her scope as a

nurse.

103. Nurse Howard abusively sought to prove her faking theory that Mr. Carter really

didn’t need his inhalers by refusing to bring them to him in his POD, and instead requiring him

to walk to medical, despite knowing that this would be extremely difficult because of his leg

pain.

104. Thus, she admitted telling this patient that: “if he did not want to go to medical to

do an inhaler treatment, then don’t say you can’t breathe on a Tuesday, and he hasn’t, because he

didn’t want me to bring him down here.”

105. She also callously reported that Mr. Carter’s COPD was why he “sounded bad”,

but that his lungs were “working.”

106. According to investigators, in the days before his death, Mr. Carter left several

messages for an attorney requesting help obtaining an emergency medical furlough and asking

for an ambulance.

107. The Medical Chart is bereft of many of these significant medical details contained

in the Sheriff’s Investigation.

Allegations Relating to Monell Liability

108. In the early part of 2015, there was a widespread pattern of deliberately

indifferent medical care in the jail, which included: refusing to let inmates see higher level

medical providers, even when obviously necessary to prevent serious injury or death; hiring and

retaining unqualified staff; allowing and training nurses to practice outside their nursing scope;



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refusing to provide medications; refusing to transfer inmates or detainees to a higher level of

acuity even where necessary to prevent serious injury or death, and; a widespread custom and

tolerated practice and habit of treating all inmate or detainee illnesses as faked until an

inmate/detainee can prove otherwise, often to save money on providers and testing.

109. In this time period Mr. Carter, Ms. Jones, and Mr. Marquez all died from treatable

conditions while begging for medical help to no avail. Ms. Jones died in January 2015, Mr.

Carter died in February 2015, and Mr. Marquez died on March 3, 2015.

110. Mr. Carter, Ms. Jones, and Mr. Marquez were openly treated as if they were

faking, with nursing staff again telling jail staff that the complaints were faked and not serious

and that they couldn’t take all complaints, even potentially life threatening ones like these

seriously.

111. As pled in the Complaint and Proposed Amended Complaint for Sharon Jones,

Ms. Jones died of a Strep A infection, a treatable infection, which raged untreated for months

until she died. Ms. Jones and other inmates on her behalf repeatedly sought medical attention but

were repeatedly ignored until Ms. Jones was found dead in her cell.

112. Sheriff investigators into the January 2015 death of Ms. Jones revealed that Ms.

Jones was likewise told she was pretending, and that she was unable to get meaningful medical

attention (especially during the night shift), even as inmates in her pod tried to get medical staff

to pay attention.

113. Similarly, Jesus Marquez was an inmate at the San Juan County Detention

Center who suffered injuries and death as a result of deliberately indifferent medical care by the

Defendants on March 3, 2015. Mr. Marquez died of strep throat, a treatable infection, which was



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allowed to ravage his body until it shut down. Mr. Marquez suffered for over 30 hours,

struggling to breathe and begging to go to the Emergency Room. He was so ill that he was

observed repeatedly in and out of consciousness.

114. Involved correctional officers were sure something was seriously wrong with

Mr. Marquez and they fought for medical staff’s attention, insisting that an ambulance be called

over medical’s stated belief that Mr. Marquez was faking his illness.

115. As pled herein, the deliberate indifference to Mr. Carter’s serious illness was part

of “an ongoing issue with the medical staff at the jail, not taking medical requests seriously and

talking about inmates faking their illness … the medical staff appears bothered by the inmates,

and their relentless requests.”

116. As also set forth in the Amended Complaints regarding the preventable deaths of

Jesus Marquez and Sharon Jones, there is a culture of presumed fakery with the medical staff,

tolerated ratified and acquiesced to by SJRMC and the County Defendants.

117. Throughout the living Plaintiffs in the Berkey matter, inmates were all told again

and again that they were faking their serious injuries or illnesses, that they didn’t need medical

attention, and were also ultimately denied access to higher-level staff or transfer to the hospital.

118. Specifically, in the Berkey consolidated cases, and the testimony in the injunction

hearing, inmate patients of SJRMC allege, inter alia, deliberately indifferent failures to respond

or provide higher level assessment to serious medical complaints, and persistent and reckless

disregard for inmate care, including their prescription medication needs. Thus:

a. Marvin Veneno, a retired police officer, is a diabetic who had a heart attack inOctober 2015 after medical staff repeatedly denied him his known prescriptionmedications. He had suffered a previous heart attack in 2014, for which he was

prescribed about 13 pills daily for his heart condition. As he testified at the



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injunction hearing, while in the jail in October 2015, medical staff knew but didnot give him his necessary prescription medications, which included Lisnopril,Carvedilol, Liopitor, and Brillanta and insulin. He also did not receive his insulinor diabetic meals while he was in the jail despite repeated requests and tellingstaff that they were urgently needed for his heart condition. He “begged” forthese medications. His son even brought his medicines to jail but they would notgive them to Mr. Veneno. He testified he was just repeatedly “ignored.” Hedeveloped major chest pain and reported that his chest was “really hurting.” Hisarms and forearms “were turning black and blue.” When he finally saw a nurse,they gave him a TB shot. He was “begging for his life.” They made him workwithout medications, which made him feel “much worse.” He got so dizzy hefainted and fell and woke up in the hospital in a pool of blood. He had a “severemassive heart attack” that required “five stints in my right artery”;

b. Joseph Gutierrez was not given his medications for his serious medical needscausing advancement of disease and significant suffering. Mr. Gutierrez alsoalleges that he needed oral surgery but the medical team refused to provide it orarrange for it despite many requests, resulting in his teeth falling out, ultimatelyrequiring him to get dentures;

c. Paul Matamoros was in the jail in the summer of 2015. He testified at theinjunction hearing that he filed multiple health requests regarding medical issueswith his penis, complaining orally and in writing to medical staff “that he had a

problem down there.” The skin on his penis was coming off and he had pain and burning sensations. While the nurses promised to assess him, they would not evenlook at his penis for days, irrelevantly defending their deliberate indifference bysaying they were females, despite his telling several nurses it was “gettingserious.” When he was finally seen by a doctor at the jail on August 26 th, thedoctor actually asked him “how could you let this get this bad.” The doctor toldhim to fill out a kite and he would send him to the emergency room. His send outwas delayed after that. At the hospital on August 28th, after his condition hadgotten “dramatically worse from within them eight days”, going from a blister tothe point where it was “starting to eat my flesh”, and he could “pretty much seemy urethra”, he was given antibiotics and a cream. Mr. Matamoros was brought

back to the jail where his condition worsened. Because his skin was not properlyhealing, he sought further care. Many days later, he spoke again with his doctorand Defendant Havel who stated he would be taken to a urologist for deformationand numbness and leaking urine out of his urethra. He repeatedly told medicalstaff in September that the skin under his penis was not healing correctly, beggingto be seen. He made numerous oral complaints as well, mostly to DON andSJRMC HSA Ketcham, and is continuing to suffering from preventable sequelaeof this extreme deliberate indifference including deformity and numbness in his

penis;



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d. Jesse Ray Berkey alleges that he was denied seriously needed anti anxietymedications, causing extreme anxiety and a major seizure with physical injuriesincluding broken teeth. He specifically informed medical staff that he felt hewould have a seizure without receiving consistent medication and treatment.Medical staff then refused to treat his broken teeth for over 48 hours;

e. Aaron Eaton alleges that he had an appendicitis, that he complained repeatedly tomedical and jail staff of pain in the right side of his stomach which was ignoredand that his mother had to come down to the jail and beg for medical attentiontwice before he was sent to the hospital and had surgery for appendicitis with

perforation. This is alleged to have caused a more serious status of theappendicitis, adhesions and infection, requiring more extensive surgery and riskof complications;

f. Aurelio Marquez alleges that he had a known and serious ear infection that rageduntreated, including a significant delay in obtaining appropriate treatment and,even when finally an order for antibiotics was made, he was not given themtimely and usually only given 1 of 3 doses a day. His multiple kites were nottaken seriously in a timely fashion. This led to a grave cellulitis infection anddeformity and permanent hearing loss in one of his ears. Mr. Marquez alsorepeatedly sent inmate requests requesting to be seen by psych and given his antianxiety meds, but it took over a month of requests to get medications causingincreased anxiety;

g. Calvin Finch’s upper dentures were lost in a shake down raid of his cell and as aresult he couldn’t eat very much. His multiple kites were not taken seriously in atimely fashion. He lost weight and begged for new teeth through repeated inmaterequests, yet it took over six months for him to receive a new pair of teeth;

h. Rudy Martinez alleges that he got a terrible rash on his body and that was blownoff resulting in significant delay in treatment, that nurses repeatedly downplayedthe seriousness of the situation, and that he now has scaring and repeat outbreaksas a result;

i. Mark Hinojos alleges that he had a broken thumb for which medical treatmentwas significantly delayed despite repeated requests finally requiring him to splinthis thumb himself causing avoidable permanent deformity;

j. Jason Trujillo alleges that he came into jail with a post surgical boot on his foot,which was taken away, causing him to have to sit in a wheelchair rather than beable to walk. He further alleges that he suffered major pain because his surgicalwound was not properly taken care of despite repeated requests, that he wasdenied proper follow up, and that he was actually told when he requested to go tothe hospital initially to “tough it out” because it “cost too much”;



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k. David Page alleges that he had a fracture to his thumb, which was not timelytreated, causing preventable infection and deformity as his requests for care were

blown off. He also alleges that he made multiple requests for anxiety medications but was unable to obtain any medication or treatment for over a month;

l. Gordon Douglas Derrick alleges ongoing significant problems of not giving himhis medications despite repeated requests for medical intervention causingsignificant damaging side effects;

m. Angelo Martinez alleges that he told repeatedly booking officers and caregiversthat he had a condition that required him to have frequent water and hismedication because of an inability to produce saliva and that he was cruelly andrecklessly denied both for 24 hours until he was able to bond out;

n. Like Mr. Carter, Adam Schuessler alleges that he was denied his inhalers or giventhem sporadically for his COPD causing significant difficulty breathing anddistress;

o. Steve Valerio was put in solitary confinement for refusing to take medication thatturned out ultimately to be prescribed for a different inmate with a similar name.

119. That these and many other inmates have alleged that their serious medical needs

were ignored supports the claim that there is a pattern and practice of deliberate indifference to

serious medical needs here causing serious injury and death.

120. Cindy Ketcham as the HSA and Director of Nurses for the jail medical unit was

responsible for discipline and training of nurses in the jail and for ensuring adequate qualified

staffing patterns with proper licensures.

121. Her ongoing toleration of the recklessly substandard and deliberately indifferent

care through failing to provide obviously needed training on not dismissing patient complaints as

faked, on not providing medical diagnoses outside nursing scope, on involving higher level

providers when assessment findings are abnormal, and on responding appropriately to

emergency symptoms was a proximate cause of the injuries complained of herein.



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122. Her ongoing toleration of recklessly substandard staffing was deliberately

indifferent.

123. This knowledge is all especially egregious against the backdrop of recklessly

underfunding the medical services at the jail in such a way as to practically guarantee the

unconstitutional treatment of the serious medical needs of inmates.

124. At all times relevant hereto, with deliberate indifference, the San Juan County

Detention Center was knowingly underfunded and understaffed with unqualified health

professionals by both the County Defendant and SJRMC.

125. Prior to these deaths from deliberate indifference, the former jail correctional care

company, CHC, pulled out of its contract.

126. CHC, who has itself been repeatedly sued for providing inadequate including fatal

deliberately indifferent care to inmates in jails, told the County that it would require at least 2.4

million dollars to continue and to be able to provide adequate health services to the jail’s inmate

population.

127. Preceding their termination notice on November 18, 2013, CHC, through Don

Houston, advised San Juan County that it was willing to continue if a new contract could be

negotiated “on mutually acceptable terms,” however the only way the company could continue

providing inmate medical care was to charge at least 2.4 million dollars.

128. Thus, to the conscious awareness of final County decision makers, around the

same time, of the heads of San Juan Regional Medical Center including Chief Administrative

Officer, Tom Dean, CHC pulled out of its contract because the County was so insufficiently



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141. At all times relevant hereto, SJRMC, the County, and Tom Havel were all

consciously aware and deliberately indifferent to the fact that they were jointly allowing medical

staff to unlawfully perform tasks they were not qualified to perform.

142. The County approved this request on or about June 9, 2015.

143. The County exerts pressure on contractors to save money. For example, County

RFPs for its jail health care contractors including CHC and SJRMC expressly included requiring

these contractors to describe how they will save the County money through “proposed staffing

initiatives that would result in cost containment for the County. . .”

144. Thus, the contractual ageeement between the County and SJRMC provides

multiple financial and other disincentives to the timely provision of medical care to meet the

serious medical needs of inmates, including decendent.

145. Section 1.7 of the contract between SJRMC and the County provides that on call

doctor coverage is limited to $25,000 dollars a year.

146. The Contract also expressly requires that nurses who transfer patients to the

hospital shall have each and every such occurrence retrospectively assessed for appropriateness

by the Medical Director and Director of Nursing as follows:

ON-CALL AVAILABILITY: Professional on-call coverage shall be provided byStatDoctors, an online provider contracted by the County. In the event that the County isunable to obtain services through Stat Doctors, SJRMC will provide on-call coveragewith a physician assistant or other midlevel provider and will bill the County at actualcost, not to exceed Twenty-Five Thousand Dollars and No Cents ($25,000) per year. SanJuan County will contract directly with Stat Doctors. If the RN on duty assesses aninmate and determines the need for life-saving, emergency intervention in the localemergency room or urgent care center, the RN shall have the authority to have the inmatetransported and contact the on-call physician afterwards to relay information. Eachoccurrence shall be assessed retrospectively by the Medical Director and Director of

Nursing to determine the appropriateness of the assessment and to evaluate whetheradditional training may be indicated or other follow-up action necessary.



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147. Nurses with the temerity to transfer a patient are subject to mandatory second

guessing, which puts out a clear system wide message that avoiding hospital care for inmates

prevents reviews of nurse decision making on pain of being subjected to additional training or

other follow-up action, thereby discouraging hospitalizations for serious medical needs, exactly

as occurred in this case to save the County money since the County must pay for all such

hospitalizations.

148. The long standing culture of fakery described herein by numerous medical staff

was also in full blown operation at all times relevant hereto, was also well known to top officials.

149. There is a pronounced tendency of medical professionals in correctional settings

to be on the lookout and often overly suspicious that an inmate is faking a medical problem.

This is fostered because of cost containment concerns as faked complaints are expensive.

150. Chronic deliberately indifferent understaffing like that at this jail is also well

known to lead to worker burn out and increased levels of apathy toward patients, as it did here.

151. Entity Defendants dealt with this issue by knowingly and/or recklessly tolerating,

and ratifying such understaffing and encouraging nurses to presume faking before calling a

medical provider or hospitalizing, dismissing entirely those symptoms that are subjectively

reported, or those that could be faked, as insufficient to even trigger a call to a provider, and to

thereby save the County money which it was obviously loathe to spend despite actual notice of

the need to do so.

152. The lack of qualified and sufficient staffing explains the kind of overwhelmed

indifference described by the deputies in these cases as overworked nurses threw inmate kites in

the air and rejected them as unworthy of consideration.



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153. Instead Defendants’ nurses adopted a reckless, deliberately indifferent wait and

see approach for inmate after inmate without even obtaining meaningful evaluations by high

level medical providers as were mandatory.

154. Financial and other motivations to keep costs down, for nurses to avoid being

second guessed together with an equally deliberately indifferent widespread habit and custom of

treating inmates as faking their symptoms, played a causal role in Defendants not providing

timely health that would have prevented the deaths of Mr. Carter, Ms. Jones and Mr. Marquez.

155. In addition to the express policies in place, Defendants failed to adequately train

and supervise their nursing staff, amounting to deliberate indifference to the serious medical

needs of inmates presenting with medical crises like these.

156. Defendants also ratified the constitutional violations by individual Defendants by

consciously deciding to not discipline, re-train or provide any meaningful response to address

these utter unconstitutional failures in care.

IV. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEFViolation of 42 U.S.C. § 1983

Deliberately Indifferent Medical Care(Plaintiff Estate against All Individual Defendants)

157. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

158. 42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation, custom or usage ofany state or territory or the District of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges or immunities secured by the constitution and lawshall be liable to the party injured in an action at law, suit in equity, or other appropriate



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proceeding for redress . . .

159. Billy Carter was a citizen of the United States and Defendants to this claim are

persons for the purposes of for purposes of 42 U.S.C. § 1983.

160. Depending on the status of his criminal matter, Mr. Carter had a clearly

established right under the Fourteenth or Eighth Amendment to be free from deliberate

indifference and reckless disregard for known serious medical needs.

161. Mr. Carter is believed to have been in the jail pre-trial and thus protected from

deliberate indifference to his known serious medical needs by the Fourteenth Amendment. To

the extent he was under any conviction, he had a co-equal protection under the Eighth

Amendment.

162. All individual Defendants to this claim, at all times relevant hereto, were acting

under color of state law.

163. Individual Defendants as willful participants in a joint activity actually knew of

Mr. Carter’s serious medical needs and deteriorating condition and nonetheless, with deliberate

indifference, decided not to report the symptoms or provide him with obviously necessary urgent

medical care. They did so despite being expressly aware of Plaintiff’s known serious medical

needs and recklessly disregarding a substantial risk of physical harm and death to Plaintiff.

164. Individual Defendants continued to act in bad faith and with deliberate

indifference to Mr. Carter’s serious medical needs and constitutional rights when they willfully

ignored his repeated requests for medical attention and intentionally denied and/or delayed his

access to medical care.

165. Individual Defendants are not entitled to qualified immunity.



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166. Each of the individual Defendants is liable to the Plaintiff for violation of 42

U.S.C. § 1983.

167. The acts or omissions of Defendants as described herein intentionally deprived

Mr. Carter of his constitutional rights and were moving forces and substantial significant

contributing proximate causes of Mr. Carter’s death.

168. As a direct result of Defendants’ unlawful conduct, Mr. Carter suffered extreme

physical and mental pain and suffering while he was in Defendants’ custody.

169. These intentional actions and inactions of each individual Defendant as described

herein intentionally deprived Mr. Carter of due process and of rights, privileges and liberties

secured by the Constitution of the United States of America causing him and his estate damages.

170. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate has

suffered injuries and losses, including the death of Mr. Carter, entitling it to recover his

compensatory and special damages, including for loss of constitutional rights, loss of enjoyment

of life, and his herein described suffering during and leading up this fatal event, and other special

damages, all in amounts to be proven at trial.

171. Plaintiffs are entitled to attorneys’ fees and costs pursuant to 42 U.S .C. §1988, pre-

judgment interest and costs as allowable by federal law.

172. In addition to compensatory, economic, consequential and special damages,

Plaintiffs are entitled to punitive damages against individual Defendants, in that the actions were

taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of

Plaintiff.

SECOND CLAIM FOR RELIEFViolation of 42 U.S.C. § 1983



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Deliberately Indifferent Policies(Plaintiff Estate against County Defendants and SJRMC)

173. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

174. 42 U.S.C. § 1983 provides that:

Every person, who under color of any statute, ordinance, regulation, custom or usage ofany state or territory or the District of Columbia subjects or causes to be subjected anycitizen of the United States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges or immunities secured by the constitution and lawshall be liable to the party injured in an action at law, suit in equity, or other appropriate

proceeding for redress . . .

175. Mr. Carter was a citizen of the United States and the Defendants to this claim are

persons for the purposes of 42 U.S.C. §1983.

176. Mr. Carter had a clearly established right under the Fourteenth or Eighth

Amendment to be free from deliberate indifference to his known serious medical needs.

177. SJRMC, at all times relevant hereto, was acting under color of state law, as the

functional equivalent of a municipality providing medical care to inmates.

178. County Defendants at all times relevant hereto, were acting under the color of

state law and had a non-delegable duty to provide constitutionally adequate medical care for

inmates.

179. County Defendants are directly liable for their own policies that were moving

forces in this constitutional injury under the contract between the County and the private

Defendant, their own ongoing toleration and/or ratification of the widespread pattern and

practice of deliberate indifference and are non-delgably liable for the deliberately indifferent

failures in training and supervising of medical care providers in the jail.



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180. Defendants are sued herein for their deliberately indifferent policies, practices,

habits, customs and widespread usages as described with particularity above with respect to the

serious medical needs of inmates like Mr. Carter and their deliberately indifferent failures in

training and supervising its employees, including individual Defendants.

181. The contract between these Defendants constitutes a policy action for § 1983

analysis as it reflects a written understanding for a fixed plan to provide medical care for all

inmates at the jail.

182. The policy decision to grossly underfund medical care in the jail despite actual

knowledge that such underfunding deprived inmates of adequate qualified medical staff violates

the County’s constitutional obligation to provide medical care under the Eighth Amendment and

was a moving force in the deliberate indifference complained of herein.

183. Defendants’ hereto deliberately indifferent failures to train, supervise, or create

coherent relevant policies, are all actionable policy decisions and moving forces and substantial

significantly contributing proximate causes of the violation of Mr. Carter’s constitutional rights.

184. It was well known by Defendants prior to Mr. Carter’s death that there was a

widespread pattern of deliberately indifferent medical care in the jail, which included: refusing to

let inmates see higher level medical providers, even when obviously necessary to prevent serious

injury or death; hiring and retaining unqualified staff; allowing and training nurses to practice

outside their nursing scope; refusing to provide medications; refusing to transfer inmates or

detainees to a higher level of acuity even where necessary to prevent serious injury or death, and;

a widespread custom and tolerated practice and habit of treating all inmate or detainee illnesses



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as faked until an inmate/detainee can prove otherwise, often to save money on providers and

testing.

185. Defendants hereto were on actual notice that their deliberately indifferent policies,

which include the deliberately indifferent failures to train and supervise, would result and had

resulted in a pattern of not providing desperately needed care to inmates with serious medical

needs causing injury and death.

186. The failures in training and supervision were so obvious that the failure to provide

the same was deliberately indifferent to the rights of the relevant public and a moving force in

the complained of injuries.

187. Defendants, through policy makers and final delegated decision-makers, ratified

the employees and subordinates unconstitutional conduct by approving their decisions and the

basis for them, including ongoing toleration of the known widespread culture of treating inmates

as faking to save money and decision to not sufficiently fund jail medical care or provide staffing

by qualified personnel.

188. Defendants were willful participants in a joint activity.

189. These Defendants knew that potentially serious or fatal consequences could be

suffered by such individuals (including Mr. Carter) by their challenged policies and practices and

by their failures to properly train and supervise medical care and/or develop adequate policies.

190. Defendants’ actions were moving forces in individual Defendants’ and other

staffs’ repeated decisions to deny and delay treatment and hospitalization of Mr. Carter during a

medical crisis.



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191. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate has

suffered injuries and losses, including the death of Mr. Carter and his terrible experience in the

events leading up to and during his death, entitling it to recover his compensatory and special

damages, including loss of constitutional rights, loss of enjoyment of life, pain and suffering

during this event, and other special damages, all in amounts to be proven at trial.

192. Plaintiffs are entitled to attorneys’ fees and costs pursuant to 42 U.S .C. §1988, pre-

judgment interest and costs as allowable by federal law.

193. Plaintiffs are entitled to punitive damages against the private entity Defendant

SJRMC, in that its actions were taken maliciously, willfully or with a reckless or wanton

disregard of the constitutional rights of Plaintiff.

THIRD CLAIM FOR RELIEFNegligence Resulting in Wrongful Death with Loss of Consortium

(Plaintiff Charles Carter individually and on behalf of the Estate against SJRMC, RamonaHoward and Mary Ann Brinkerhoff)

194. Plaintiffs incorporate all other paragraphs of this Complaint as if fully set forth

herein.

195. Defendants to this claim are private companies and individuals, none of whom is

entitled to immunities under the New Mexico Tort Claim Act.

196. At all times relevant hereto, Mr. Carter was under the care and treatment of

SJRMC and its staff, including individual Defendants, through their contractual relationship with

the County.

197. SJRMC is vicariously liable for the negligent acts and omissions of its agents

and/or employees, and directly liable for their own negligent failures in training, policies, and

practices.



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198. Defendants hereto had a duty to provide reasonable medical care and treatment to

inmates at the jail, including Mr. Carter, and to exercise reasonable care in the training and

supervision of their employees.

199. These duties of care are informed by state law.

200. These duties are also informed by the relevant practice standards and the NCCHC

standards.

201. Individual Defendants and other employees, including other involved LPNs and

RNs, while acting within the scope of their employment, variously committed negligent acts and

omissions with respect to the care and treatment of Mr. Carter.

202. Individual Nursing Defendants hereto all had nurse-patient relationships with Mr.

Carter and all owed a duty of due care to Mr. Carter.

203. Individual Defendants hereto and other caregivers were acting within the scope of

their employment with SJRMC at the times pertinent to this complaint and breached their duty of

care and were negligent in their treatment of Mr. Carter, causing his death.

204. SJRMC owed a duty of care to Mr. Carter to establish appropriate protocols in the

management and assessment of inmates presenting with serious medical conditions.

205. Involved caregivers at the jail grossly deviated and breached their duties to properly

care for and treat Mr. Carter’s by inter alia; negligently and recklessly not giving him his prescription

medications, negligently and recklessly failing to properly assess Mr. Carter, in recklessly and

negligently treating him as though he was faking his conditions, in knowingly acting outside the

scopoe of their licenes and making medical diagnoses, in recklessly and negligently treating his

condition as non-emergent, and denying and delaying access to necessary medical care.



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206. Defendants, directly, and/or through their agents and employees had at least a

tacit understanding and consciously conspired and deliberately pursued a common plan or design

to commit a tortious act.

207. This negligence caused Mr. Carter’s death and losses and damages to him and his

Estate.

208. Plaintiff Charles Carter enjoyed a close, life long and intimate familial

relationship of siblings with Mr. Carter.

209. The brother frequently communicated with Mr. Carter.

210. Mr. Carter had children who are interested in his Estate.

211. As a result of the aforementioned negligence and breach of duties on the part of

Defendants, Plaintiff Charles Carter has suffered the loss of consortium of his brother and is also

individually entitled to all such damages as are permissible by New Mexico consortium common

law due to the loss of companionship resulting from the death of Mr. Carter.

212. These defendants are jointly and severaly liable for all compensatory and also

punitive damages for this egregious conduct.

PRAYER FOR RELIEF

Plaintiffs pray that this Court enter judgment for the Plaintiffs and against each of the

Defendants and enter the following relief:

(a) All appropriate relief at law and equity;

(b) Non earnings related economic losses on all claims allowed by law;



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(c) Compensatory and consequential damages, including damages for emotional

distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims

allowed by law in an amount to be determined at trial;

(d) Punitive damages on all claims allowed by law and in an amount to be determined

at trial;

(e) Attorneys’ fees and costs associated with this action, including expert witness

fees, on all claims allowed by law;

(f) Pre- and post-judgment interest at the highest lawful rate; and

(g) Any further relief that this Court deems just and proper.

PLAINTIFFS RESPECTFULLY REQUEST TRIAL BY JURY.

Respectfully submitted this 15 th day of January, 2016.

HOLLAND, HOLLAND EDWARDS & GROSSMAN, P.C.

/s/ Erica GrossmanANNA HOLLAND EDWARDS ERICA T. GROSSMAN JOHN R. HOLLAND Attorneys for Plaintiffs1437 High StreetDenver, Colorado 80218Telephone: (303) 860-1331Fax: (303) 832-6506

TUCKER, BURNS, YODER & HATFIELD

/s/Gregory M. TuckerGREGORY M. TUCKERMITCHEL S. BURNSCHRISTIAN A. HATFIELDJENNIFER D. YODERAttorney for Plaintiffs105 North Orchard AvenueFarmington, New Mexico 87401



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Telephone: (505) 325-7755Fax: (505) 325-6239


William Carter Amended Complaint

Documents

Transcript of William Carter Amended Complaint