Response to motion for summary judgment - Kentucky.com

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cause his rib fractures. According to Dr. Nichols, he knows of no structure that was described when Gerald fell that would have caused rib fractures. (Nichols Depo., p. 23). According to Dr. Balko, “[t]he rib fractures are the result of blunt chest impact not related to the fall.” (Balko Expert Report, attached hereto as Exhibit 46.) According to Dr. Balko, they are not likely the same event because a person cannot fall back and hit their head where Gerald did, while at the same time hitting the ribs where Gerald suffered the fractures. (Balko Depo., p. 62). E. Stephanie Mogan’s Testimony The Defendants seem to argue that Stephanie Mogan’s testimony that she did not see any guards enter Cell P-7 prior to “the incident” somehow prevents the Plaintiff from arguing that a Detention Center guard or guards did in fact enter Cell P-7 and beat Gerald Cornett. This is simply untrue. Even now, more than three and a half years after the fact, the Defendants have not explained how Gerald Cornett possibly came to the Detention Center relatively unharmed and left with six broken ribs. In her affidavit, Mogan testified (a) that she could not see into cell P-7 once staff entered into it; (b) that a female Detention Center employee entered P-7 to take Gerald’s fingerprints; (c) that no one entered Cell P-7 prior to this incident; and (d) that, when the female Detention Center employee left Cell P-7, she stated that Cornett did not even respond to pain. (Mogan Affidavit, attached hereto as Exhibit 47, 14, 15, 18). Mogan elaborated on the events of that night during her deposition. Although it was right in front of her, she could not see into Cell P-7 at any point. (Mogan Depo. p. 44-45, 48.) (Cited portions of Mogan’s deposition are attached hereto as Exhibit 48.) After Gerald fell, he had his picture taken, and the guards then had him take off his shoes and put him in cell P-7. (Id., p. 73-75). After Cornett was placed into Cell P-7, Mogan sat and watched the entrance to the cell, which was right in front of her. (Id., p. 76). “[N]obody went in any of those 26
cells after he was put in there until they called for him to have his fingerprints done.” (Id.). To the best of Mogan’s recollection, a female officer went in there momentarily the final time and came out hollering for assistance. (Id., p. 77-78). As discussed above, Maria Jones claims that she entered Gerald’s cell at approximately 2:40 a.m. to take his fingerprints and reported that Gerald was un-responsive at 2:45 a.m. She also testified that Clarence McCoy was already in the cell at that time. Assuming Stephanie Mogan is correct, and only Maria Jones entered the cell, this is still sufficient, combined with every other piece of evidence, for the excessive force claim to go to the jury against Maria Jones. Frankly, however, it does not matter. McCoy and Jones both claim they went into Cell P-7, meaning McCoy’s presence or lack thereof is a swearing contest and therefore a question for the jury. As stated above, the fact that both McCoy and Jones testified that they were in Cell P-7 and that they applied force to Gerald is sufficient evidence to preclude summary judgment on this issue. F. Brian Rice’s Testimony As the Defendants acknowledge, Brian Rice testified that he left the Passive Intake area shortly after Gerald was placed in Cell P-7. (Rice Depo., p. 68, 82-83.) (Cited portions of Rice’s deposition are attached hereto as Exhibit 49.) Therefore, Rice’s testimony that he did not see Gerald mistreated is meaningless, seeing as how the excessive force occurred between approximately 2:40 a.m. and 2:45 a.m. Furthermore, Rice’s testimony that he personally has never been mistreated by Detention Center staff is not relevant to this particular motion. G. Criminal Excessive Force Charges Against McCoy and LaFoe At first blush, it may seem improbable, even shocking, that government employees would attempt to cover-up the events leading to a man’s death while in their care. However, on June 12, 27
Page 1 and 2: ELECTRONICALLY FILED UNITED STATES
Page 3 and 4: A. Cover-up by the Detention Center
Page 5 and 6: The Triage Nursing Care Record from
Page 7 and 8: someone who has sustained a head wo
Page 9 and 10: At approximately 0435 I went into P
Page 11 and 12: The remainder of this memorandum se
Page 13 and 14: Mr. Land checked for signs of blunt
Page 15 and 16: prior paramedic training, Gerald di
Page 17 and 18: sometimes hard, across the sternum,
Page 19 and 20: Notes, Ex. 32, p. 1). According to
Page 21 and 22: head showed a marked acute subdural
Page 23 and 24: D. Additional Expert Testimony Acco
Page 25: is simply not worthy of belief. (Se
Page 29 and 30: detainees were allowed to continue
Page 31 and 32: Furthermore, Gerald did not tell an
Page 33 and 34: Because there is not enough evidenc
Page 35 and 36: punishment....’” Pelfrey, 43 F.
Page 37 and 38: further stated that there was no si
Page 39: Respectfully submitted, RAMBICURE &

Response to motion for summary judgment - Kentucky.com

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