Man Who Fell From Top Bunk At CCA Files $5 Million Lawsuit

  • Tuesday, September 23, 2014

A lawsuit filed against Hamilton County and the Corrections Corporation of America (CCA) says a man, who was supposed to be kept on a bottom bunk, was instead assigned to a top one and he then fell five feet onto a concrete floor.

Brian Thomas Mosinak is asking $5 million in compensatory damages in the Circuit Court complaint.

The suit says he was taken to the workhouse at Silverdale on Oct. 9, 2012, and on Nov. 5 it was directed that he be kept on a lower bunk because of health problems.

It says, however, he was shifted to an upper bank and he fell at 3:15 a.m. on Oct. 6, 2013.

The suit says he lay face down for some time before getting medical treatment.

The complaint, filed by attorney Robin Flores, says it was found that he had a neck injury that required surgery an insertion of metal screws.

Here is the complaint:

CIRCUIT COURT FOR HAMILTON COUNTY

 State of Tennessee

 

Brian Thomas Mosiniak,                            §

                                                                        §

                                    Plaintiff,                       §                     

                                                                        §

~v~                                                                  §

                                                                        §          No. _____________________

Hamilton County                                        §

Government, and                                         §          JURY DEMAND

                                                                        §

Corrections Corporation                         §

of America, Inc.,                                         §

                                                                        §

                                    Defendants.                 §

 

COMPLAINT

 

Introduction:

1.         This is an action for money damages brought pursuant to 42 U.S.C. §§1983, and 1988 to redress the deprivation of rights secured to the plaintiff by the Eighth, and Fourteenth Amendments to the United States Constitution, an action for money damages and injunctive relief to redress violations of 42 U.S.C. § 12131 et seq. (Title III of the Americans with Disabilities Act-accommodations in public facilities; and Title II of the Americans with Disabilities Act-participation in services and activities of a public entity), and redress of violations of the common laws of the State of Tennessee by the defendants.

2.         Plaintiff avers that the unidentified or not fully identified employees for Corrections Corporation of America, Inc., (“CCA”) subjected the plaintiff to cruel and unusual punishment without the due process of law.

3.         In addition, plaintiff avers that the unknown employees of CCA humiliated, and tortured the plaintiff by their failure to render aid to the plaintiff, by requiring the plaintiff to ambulate and perform basic toileting without any assistance and when he was clearly and visibly unable to care for himself.

4.         Plaintiff also maintains that the employees of CCA committed these violations and torts as a result of policies, customs, and/or procedures of CCA.

5.         Plaintiff avers that the employees of CCA humiliated plaintiff, subjected plaintiff to mental anguish and emotional distress, and maliciously refused to assist the plaintiff when the plaintiff was severely and grievously injured, and maliciously refused to assist the plaintiff with basic toilet and ambulatory functions.

6.         Plaintiff avers that Hamilton County Government (“County”) contracted with co-defendant CCA to perform and carry out the goals and duties of the County pursuant to Title 41 of the Tennessee Code Annotated, and hence the agents of CCA committed these violations and torts as a result of policies, customs, and/or procedures of the County.

7.         Plaintiff avers that the malicious refusals to assist plaintiff with his basic ambulatory and toiletry needs by the employees of CCA with the oversight of the County were the direct and proximate causes of the plaintiff’s additional injuries and aggravation of existing injuries.

8.         Plaintiff is a qualified individual with a disability as defined under 42 U.S.C. § 12131 et seq.

Jurisdiction and Venue:

9.         This is an action to redress the deprivation of rights secured to the plaintiff by the Eight, and Fourteenth Amendments to the United States Constitution enforceable through 42 U.S.C. § 1983. This Court is vested with original jurisdiction pursuant to the authority stated in Haywood v. Drown, 556 U.S. 729 (2009).

10.       This is an action to seek injunctive relief and monetary damages through 42 U.S.C. § 12131 et seq. (Title III and Title II of the Americans with Disabilities Act). This Court is vested with original jurisdiction pursuant to the authority stated in Haywood v. Drown, 556 U.S. 729 (2009), and Yellow Freight Sys. v. Donnelly, 494 U.S. 820 (1990).

11.       Venue is proper in this Court pursuant to Tenn. Code Ann. § 20-4-102. All acts complained of occurred within Hamilton County. In addition:

      a.         Plaintiff is a resident Hamilton County, Tennessee.

      b.         County is a political sub-division of the State of Tennessee.

c.         CCA is a for-profit corporation registered with the Tennessee

Secretary of State to do business in the field of corrections and the primary place of business for purposes of this Complaint in Hamilton County, Tennessee at a public facility known alternatively as Silverdale (“Silverdale”) or the “workhouse.”

d.         The County operates the Courts of law and equity for the 11th Judicial Circuit.

The Parties:

12.       At all times relevant to this cause of action, County is a political sub-division of the State of Tennessee organized and existing under the laws of the State of Tennessee.

a.         The County, through its commissioners, has charge to supervise and control the workhouse and all of its departments.

b.         The County, through its commissioners, has a duty to render medical aid to inmates injured while housed in the workhouse; to ensure inmates with injuries receive proper medical treatment regardless whether or not they are serving an active sentence or pre-trial detention; to ensure that employees of CCA posted at the workhouse are properly trained to render medical aid to inmates injured while housed in the workhouse; to provide proper facilities and transportation for individuals with disabilities housed at the workhouse; the provide proper entrance and exit to the Courts; and to regulate and control the workhouse in its exercise of the County’s business.

13.       At all times relevant to this cause of action, CCA is an agent of the Hamilton County Government (“County”). CCA is a state actor, contracted by the County to house inmates sentenced pursuant to Tennessee state laws for term of incarceration not to exceed eleven months and twenty-nine days; to house pre-trial detainees for the municipal and county governments within Hamilton County; and to house detainees for the Government of the United States.

a.         CCA specializes in the construction, design and management of prisons, jails, and detention facilities and the housing and transportation of inmates for municipal, county, and state governments, in particular, the County.

b.         CCA manages males, females, and juveniles in all levels of security in its facilities for the County.

14.       At all times relevant to this cause of action, CCA, with oversight by the County, is responsible for the creation and maintenance of Silverdale, which is a public detention facility that operates under the laws of the state of Tennessee state law and regulated by the laws of the State of Tennessee, specifically and pursuant to the Tennessee Private Prison Contracting Act of 1986 and Title 41 of the Tennessee Code Annotated as to:

            a.         The training and certification of its employees;

b.         CCA has a duty to render medical aid to inmates injured while housed in the workhouse; to ensure inmates with injuries receive proper medical treatment regardless whether or not they are serving an active sentence or pre-trial detention; to ensure that employees of CCA posted at the workhouse are properly trained to render medical aid to inmates injured while housed in the workhouse; and to provide proper facilities for individuals with disabilities housed at the workhouse.

c.         Plaintiff sues CCA in its official capacity and an agent of the County and its “individual” capacity as a corporation.

15.       At all times relevant to this cause of action, the employees described herein were employed by CCA and acted under the color of law, statute, ordinance, regulation, custom, practice, or usage for the County.

16.       At all times relevant to this cause of action, CCA receives federal financial assistance for the housing and safe confinement and transportation of federal inmates or federal pretrial detainees.

a.         CCA houses, confines, and transports federal inmates or federal pretrial detainees in Silverdale where plaintiff was housed and

Factual Basis of Complaint:

            17.       At all times relevant to this cause of action, Plaintiff was a state inmate held at Silverdale and served a sentence of confinement.

            18.       Plaintiff was not held as a prisoner or pre-trial detainee the time he filed this lawsuit and thus he is not required to exhaust all state remedies under the Prisoner Litigation Reform Act prior to his initiation of this lawsuit.

            19.       On or about October 9, 2012, defendant entered Silverdale as a state inmate to serve a state court imposed sentence of confinement.

20.       On November 5, 2012, William Wilson, as the approving provider for CCA, issued a directive to CCA personnel that plaintiff would be assigned a bottom bunk based upon plaintiff’s medical conditions that required plaintiff to occupy a bottom bunk and the probability that plaintiff would fall from a “top bunk” and suffer injury (“bottom bunk directive or document”).

a.         CCA uses double bunk beds (described as one bunk atop another) for inmates in the “G unit.”

b.         At all times relevant to this matter, CCA housed plaintiff in the “G unit.”  

c.         CCA generated and maintained a document titled “Silverdale Detention Facilities” “Patient Snapshot” reveals the plaintiff suffered the following medical conditions at the time of his incarceration: anxiety disorder; back pain; and bipolar disorder.

d.         While at CCA, a person plaintiff believed was a psychiatrist and known to plaintiff as “Doctor Bhushan” prescribed to plaintiff mental health medications that gave William Wilson concern that plaintiff would result in plaintiff’s fall from a top bunk.

21.       The bottom bunk directive document originated from “Corrections Corporation Silverdale Detention Facilities” on a document issued by CCA on a paper bearing the same title.

22.       The bottom bunk directive as set forth in ¶ 21 did not expire until November 5, 2013.

23.       Sometime after William Wilson issued the aforementioned bottom bunk directive, but before October 6, 2013, one CCA employee identified as a black female removed plaintiff from his bottom bunk and assigned plaintiff to a top bunk.

24.       Fellow inmate Larry Glen Womble, III, (“Womble”) occupied the bottom bunk in the two-man cell.

25.       Plaintiff complained to the employee and another CCA employee known to plaintiff as “Sgt. Cain” that plaintiff was required to have a bottom bunk, and plaintiff showed the bottom bunk document to the aforementioned female CCA employee and Sgt. Cain.

26.       In response to plaintiff’s protests, “Sgt. Cain” merely provided plaintiff an unstable plastic box for plaintiff to use to get onto the top bunk.

27.       In further response to plaintiff’s protests, the aforementioned female CCA employee told plaintiff that he had to move to make room for gang members.

28.       After CCA employees moved plaintiff, but before October 6, 2013, plaintiff made a complaint about the top bunk to CCA employee “Moon” who plaintiff believes was the “G Unit” manager.

a.         Plaintiff showed the bottom bunk document to “Moon” at the time of plaintiff’s complaint.

b.         “Moon” told plaintiff that he could not do anything for plaintiff.

29.       Plaintiff continued to complain to “Moon,” “Sgt. Cain,” and other CCA employees about the top bunk, but plaintiff received no response to his complaints.

30.       On October 6, 2013 at about 3:15 a.m., plaintiff fell about five feet from his top bunk to the concrete floor.

31.       Plaintiff suffered a severe injury to include a fractured hip.

32.       Womble inspected plaintiff and found plaintiff was severely injured.

33.       Womble pounded on the window of the cell to get the attention of CCA employees.

34.       At about 4:00 a.m., CCA employee “Nurse Seaton,” and “Nurse Holman,” along with “Sgt. Cain,” and CCA employee Austin and another but unidentified CCA employee, arrived in the cell.

            35.       “Nurse Seaton” told the other CCA employees that plaintiff was “faking.”

36.       “Sgt. Cain” told plaintiff that plaintiff should wait a few hours and that maybe the pain will go away.

            37.       CCA employees as identified in ¶¶ 34-36, along with the day shift CCA employees, refused to help plaintiff and left plaintiff to suffer on the concrete floor for about 10 to 11 hours.

            38.       CCA employee of the day shift, “Nailer,” fed plaintiff breakfast while plaintiff laid face-down on the concrete floor.

39.       While plaintiff remained face-down and suffering on the concrete floor, Womble attempted to get the attention of CCA employee “Nurse Michelle” who was passing out the “morning pills” during “pill call.”

            40.       “Nurse Michelle” told Womble that she could not do anything because she was on “pill call” and CCA would not allow her to do anything for plaintiff.

            41.       “Nurse Michelle” attempted to explain to “Nailer” the procedure to calling a “medical emergency,” and “Nailer” responded that it was “night shift’s fault” for failing to call for a medical emergency pursuant to CCA policy.

            42.       Plaintiff remained face-down and suffered on the concrete floor until Womble made such a fuss that he was successful in getting CCA employee “Shepard” to the cell, and she determined that plaintiff was injured.

43.       “Shepard” called for a medical emergency at about 12:20 p.m. on October 6, 2013, and plaintiff was taken to Erlanger Emergency (“Erlanger”) by EMS.

44.       Plaintiff was admitted by Erlanger staff as an inpatient on October 6, 2013.

45.       Erlanger staff performed surgery on plaintiff for internal fixation of a right femoral neck fracture, which required insertion of metal screws.

            46.       Plaintiff was continually in the custody of Hamilton County Government and CCA during the treatment and time of in-patient status at Erlanger.

47.       On or about October 9, 2013, Erlanger discharged plaintiff, and CCA staff transported plaintiff to Silverdale.

a.         Erlanger staff gave the CCA employee who transported plaintiff from Erlanger in a sedan, the medical discharge instructions for plaintiff’s continued care.

            48.       Plaintiff was restricted to a wheel chair and was bed-ridden.

49.       CCA staff placed plaintiff in a cell that had nothing to accommodate plaintiff’s ability to toilet himself or care for his own hygiene.

50.       Plaintiff was unable to have bowl movements for three days because the toilet in his cell did not have provisions for a handicapped person.

            51.       Plaintiff could not lift himself onto a toilet, shower, or brush his teeth.

52.       Despite plaintiff’s continued complaints to members of CCA staff, plaintiff was unable to care for his own personal needs as described in ¶¶ 49-51.

53.       It was not until CCA employees moved plaintiff to a handicap cell that plaintiff was able to have a bowl movement.

54.       At no time during the periods stated in ¶¶ 49-53, did CCA employees even attempt to assist plaintiff with his basic toileting and hygiene needs.

55.       Plaintiff still had court dates in the Hamilton County Court of General Sessions (“court”) for child support matters that arose from Missouri.

56.       CCA employees transported plaintiff to court for about 3 court appearances between October 6, 2013 until on or about in December 3, 2013.

57.       Plaintiff was restricted to a wheelchair.

58.       CCA provided to its employees a van that was not wheelchair accessible for the transport of plaintiff and all prisoners to and from court.

59.       CCA employees directed plaintiff to enter and exit the van as best as plaintiff could.

60.       Plaintiff asked CCA employee “Sgt. Moore” for help into the van on the first court date when CCA transported plaintiff to court.

61.       “Sgt. Moore” told plaintiff that he could not help plaintiff enter or exit the van because if (paraphrased) “something were to happen CCA would be liable.”

62.       During all transports to and from court, CCA employees forced Plaintiff forced to enter and exit the van without assistance.

63.       Plaintiff had to step up and step down about 2 to 2 ½ feet from the van while plaintiff wore leg shackles and had his hands cuffed in “front.”

a.         CCA employees placed plaintiff in leg shackles and handcuffs before each transport.

            64.       On or about December 4, 2013, during the last court date, plaintiff was again shackled and cuffed and CCA employees forced plaintiff to enter and exit the van without any assistance.

            65.       Upon arrival at court, plaintiff tried to step down from the van as described in ¶ 63, and re-injured his hip while under the watch of “Sgt. Moore.”

            66.       Plaintiff told “Sgt. Moore” that he injured himself, and “Sgt. Moore” ignored plaintiff and refused to assist plaintiff.

            67.       Plaintiff had to hobble to his wheelchair under his own power and with no assistance from “Sgt. Moore.”

            68.       While in court, plaintiff complained to his attorney about the re-injury, Hank Hill, and Hank Hill was able to secure plaintiff’s release from custody.

            69.       Upon plaintiff’s release, plaintiff returned to Erlanger for eventual treatment of a re-injury to the same hip, which included reparative surgery for what Dr. Peter Nowotarski diagnosed as a “femoral head collapse position,” and plaintiff will require additional surgery.

a.         Plaintiff is now disabled and his right leg is now shorter than his left leg.

70.       At all times described herein, the CCA employees described herein assisted each other in performing the various acts described and lent their physical presence and support in performing their various actions as described and lent their physical presences, support, and the authority of their respective offices to each other during the said events.

71.       At no time did any of the individual CCA employees described herein aid plaintiff on October 6, 2013 and only aided plaintiff until and after the efforts of Womble to secure assistance for plaintiff.

72.       At no time did any of the individual CCA employees described herein aid plaintiff with his post-operative care (to include basic hygiene and toileting) until and after plaintiff complained for three days.  

73.       At no time did any of the individual CCA employees described herein aid plaintiff with his ability to attend court without injury until and after the efforts of Hank Hill to secure plaintiff’s release from custody.

 74.      The conduct of the individual CCA employees described herein constituted deliberate indifference to the needless misery, pain, and suffering of the plaintiff and was tantamount to cruel and unusual infliction of punishment without Due Process of Law and indeed, torture.

75.       At no time did CCA supervisory staff or County officials conduct an investigation of the events described herein.

76.       Between the events of October 6, 2013 and December 3, 2013, CCA employees conducted a search of plaintiff’s cell for the “bottom bunk” documents, but plaintiff feared such action and had given the document to another inmate.

            a.         CCA employees never found the bottom bunk documents.

77.       The failure of the County and CCA to properly investigate this matter and take action to prevent further injury to plaintiff constituted deliberate indifference and was the driving cause of the needless misery, pain, and suffering of the plaintiff, and the sole concern for CCA and the County was to protect the corporate interests of CCA and the interests of the County.

78.       CCA and the County’s failure to provide access for persons in their custody who were, while suffering from injury and disability, to basic hygiene and toileting constituted deliberate indifference and was the driving cause of the needless misery, pain, and suffering of the plaintiff.

79.       CCA and the County’s failure to provide access for persons in their custody, while suffering from injury and disability, to the Courts and to provide transportation in vehicles that were handicap accessible, constituted deliberate indifference and was the driving cause of the needless misery, pain, and suffering of the plaintiff.

Count One:

Violation of Civil Rights

Under Color of Law under 42 U.S.C. §1983

 

80.       Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the plaintiff reasserts and incorporates ¶¶ 1 through 79.

            81.       The acts and omissions of the CCA employees described herein were acts that demonstrated indifference to the life and safety of the plaintiff and were the direct and proximate cause of plaintiff’s damages and needless suffering.

            82.       No reasonable person would have forced plaintiff to lay on the floor without medical care and require the plaintiff to remain face-down for hours and to eat face-down, and force plaintiff to endure the humiliation and misery of the inability to have a bowl movement without soiling himself, and to reinjure himself with the full knowledge of his fresh and severe injury by shackling and cuffing plaintiff and then requiring plaintiff to enter and exit a non-handicap accessible can.

            83.       CCA employees described herein acted under color of law and their negligent and intentional acts deprived the plaintiff his rights secured to him under the United States Constitution to be free from:

a.         Cruel and unusual punishment in violation of the Eight Amendment without due process of law.

84.       CCA, with oversight from the County, and the County, had a duty of care to the plaintiff to ensure that is employees were properly trained in the identification of inmates with injuries, when to render aid to an inmate, and to train its employees to report employee abuse and neglect of inmates. This failure constitutes deliberate indifference.

85.       CCA with oversight from the County, and the County, has a policy, practice, or custom to improperly ensure that is employees were properly trained in the identification of inmates with injuries, when to render aid to an inmate, and to train its employees to report employee abuse of inmates. This failure constitutes a policy, practice, or custom of deliberate indifference.

86.       The actions and omissions of the CCA staff members were done with actual malice toward the plaintiff and with willful and wanton indifference to and with deliberate disregard for the constitutional rights and statutory civil rights of the plaintiff. Thus the plaintiff is entitled attorney fees pursuant to 42. U.S.C. §1988.

87.       The omissions of CCA and the County constitute deliberate indifference toward the plaintiff and with willful and wanton indifference to and with deliberate disregard for the constitutional rights and statutory civil rights of the plaintiff. Thus the plaintiff is entitled to actual damages, and attorney fees pursuant to 42. U.S.C. §1988.

Count Two:

Violation of American’s with

Disabilities Act under

42 U.S.C. § 12131 et seq., Titles II and III

 

88.       Plaintiff incorporates fully ¶¶ 1 through 87 as if fully set out herein and avers that such actions and omissions on the part of the defendants constitutes a violation of this law for which they are individually and jointly liable.

89.       The failure of the defendants to provide facilities and accommodations for the plaintiff deprived plaintiff from his ability to participate in court proceedings without the risk of injury, and in fact this failure was the direct and proximate result of the plaintiff’s additional injuries, pain, misery, and suffering, and which requires future medical treatment and has resulted in plaintiff’s disability and deformation of his right leg.

90.       The failure of the defendants to provide facilities and accommodations for the plaintiff resulted in his humiliation at the inability to have bowl movements and to simply remain clean. The defendants’ refusal to train CCA employees to provide assistance to the plaintiff was the direct and proximate result of the plaintiff’s humiliation, pain, misery, and suffering

Count Four – Negligence:

            91.       Plaintiff incorporates fully ¶¶ 1 through 90 as if fully set out herein and avers that such actions and omissions on the part of the defendants constitutes a violation of this law for which they are individually and jointly liable.

WHEREFORE, the plaintiff demands judgment against the defendants and requests the following relief:

A.        That the Court award compensatory damages in the amount of FIVE MILLION DOLLARS ($5,000,000);

B.        That the Court award costs, and discretionary costs;

C.        Any other relief the Court may deem fit and proper;

D.        Any other relief the Court may deem fit and proper pursuant to 42 U.S.C. §1988, and

E.         Allow a jury trial on all issues triable by jury.

Respectfully submitted,

 

By:_______________________________

                                                            ROBIN RUBEN FLORES

TENN. BPR #20751

GA. STATE BAR #200745

                                                                        Counsel for Plaintiff

4110-A Brainerd Road

                                                                        Chattanooga, TN  37411

                                                                        423 / 267-1575  fax 267-2703

                                                                        robinflores@epbfi.com

 

 

Verification

 

STATE OF TENNESSEE      )

HAMILTON COUNTY        )

 

            I, Brian Thomas Mosiniak, first being duly sworn, do hereby make solemn oath that the facts contained in this Complaint are true to the best of my knowledge, information, and belief.

 

            This the _____ day of __________, 2014                    

 

 

                                                                        _________________________________

                                                Brian Thomas Mosiniak

Sworn to before me this ____

day of ____________, 2014.

 

________________________________

Notary public

My commission expires:___________

 

 

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