Case: 1:17-cv-00724-TSB Doc #: 1 Filed: 10/27/17 Page: 1 of 15 PAGEID #: 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LISA BRITT, ADMINISTRATRIX OF : Case No. 1:17-cv- 724

THE ESTATE OF TOMMY W. BRITT, II :
c/o Gerhardstein & Branch Co. LPA : Judge
441 Vine Street, Suite 3400 :
Cincinnati, OH 45202 :
:
Plaintiff, :
v. : CIVIL COMPLAINT AND
: JURY DEMAND
HAMILTON COUNTY, OHIO :
138 E. Court Street :
Cincinnati, OH 45202, :
:
and :
:
NAPHCARE, INC. :
c/o National Services Information, Inc. :
145 Baker Street :
Marion, OH 43302 :
:
and :
:
SHERIFF JIM NEIL :
Hamilton County Sheriff’s Office :
1000 Sycamore St, :
Cincinnati, OH 45202 :
Individually and in his official capacity as :
Sheriff of Hamilton County, :
:
and :
:
CURTIS EVERSON, M.D. :
c/o Hamilton County Justice Center :
1000 Sycamore Street :
Cincinnati, OH 45202, :
Individually and in his official capacity as :
the Medical Director at the Hamilton County :
Justice Center, :
:
and :
:
:

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Dr. Johansen, M.D. :

Individually and in his official capacity as :
doctor at the Hamilton County Jail :
c/o National Services Information, Inc. :
145 Baker Street :
Marion, OH 43302 :
:
and :
:
Angela M. Moore, RN :
Danielle McFarland, LPN :
Allison Kolb, LPN :
c/o NAPHCARE, INC. :
National Services Information, Inc. :
145 Baker Street :
Marion, OH 43302 :
Individually and in their official capacity as :
nurses at the Hamilton County jail, :
:
and :
Sgt. Melissa Kilday :
Hamilton County Sheriff’s Office :
1000 Sycamore St. :
Cincinnati, OH 45202 :
Individually and in her official capacity as :
employee of Hamilton County, :
:
and :
JOHN/JANE DOE s #1-5 :
Hamilton County Sheriff’s Office :
1000 Sycamore St. :
Cincinnati, OH 45202 :
Individually and in his/her official capacity :
as an medical providers at the Hamilton :
County jail, :
:
and :
JOHN/JANE DOE s #5-10 :
Hamilton County Sheriff’s Office :
1000 Sycamore St. :
Cincinnati, OH 45202 :
Individually and in his/her official capacity :
as workers at the Hamilton County jail, :
:
Defendants.

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I. PRELIMINARY STATEMENT

1. This civil rights case challenges the punitive denial of medical care to a dying inmate,

Tommy Britt, while he was in custody at the Hamilton County Justice Center (“HCJC” or “Jail”).

The Defendants failed to timely provide adequate medical care to Tommy Britt. When Tommy

cried out for help and begged to go to the hospital, the sergeant and medical staff declared he was

faking, ordered him to be strapped down in a restraint chair, and placed on suicide watch for no

reason. Their callous actions resulted in Tommy Britt’s torturous pain and suffering and,

ultimately, his death. When he was in the Jail, Tommy Britt was suffering from a life-threatening

infection which required immediate treatment. His need for immediate treatment was obvious to

Defendants who knew that Tommy was withdrawing from heroin, had a long history of

intravenous drug use, that IV drug abusers are susceptible to life-threatening infections including

endocarditis which infects a heart valve, and that Tommy was suffering from noticeable signs of a

serious infection soon after his incarceration, including elevated temperature and heart rate.

Despite knowing these risks, Defendants did not evaluate Tommy for an infection, refused him

timely medical care, and ignored his suffering and deterioration, until it was too late.

2. Defendants know that our community is experiencing a heroin and fentanyl epidemic.

Many of the people who are booked in the Hamilton County Jail are addicted to heroin. These

victims need treatment in the Jail, not a torturous death. They are not beyond hope. There is no

one who is not saveable. Mrs. Britt, Tommy’s mother, brings this action for medical malpractice,

civil rights violations, and wrongful death to secure fair compensation and to encourage these and

similar Defendants to provide adequate and timely medical treatment to future addicted inmates in

their care.

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II. JURISDICTION

3. Jurisdiction over claims arising from Defendants’ violation of the Civil Rights Act is

conferred upon this Court by 28 U.S.C. §§ 1331, 1343 (3) and (4).

4. Jurisdiction over the state law claim is conferred upon this Court by 28 U.S.C. § 1367.

5. Venue is proper in this Division.

III. PARTIES

6. Plaintiff, Lisa Britt is the mother of Tommy Britt and the Administratrix of his Estate.

She is a resident of Hamilton County, Ohio.

7. Defendant Hamilton County is a unit of local government organized under the laws of the

State of Ohio. Defendant is a “person” under 42 U.S.C. § 1983 and at all times relevant to this

case acted under color of law.

8. Defendant NaphCare, Inc. is a corporation and was at all times relevant to this action the

medical provider under contract with Hamilton County, providing medical services at the

Hamilton County Justice Center (“HCJC” or “Jail”). NaphCare, Inc. is a “person” under 42 U.S.C.

§ 1983 and at all times relevant to this case acted under color of law.

9. Defendant Sheriff Jim Neil was at all times relevant to this action the Sheriff of Hamilton

County, Ohio. Defendant is a “person” under 42 U.S.C. § 1983 and at all times relevant to this

case acted under color of law. He is sued in both his individual and official capacities.

10. Defendant Curtis Everson was at all times relevant to this action an agent of NaphCare

serving as the Medical Director at the Hamilton County Justice Center. Defendant Everson is a

“person” under 42 U.S.C. § 1983 and at all times relevant to this case acted under color of law. He

is sued in both his individual and official capacities.

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11. Defendant Dr. Johansen was at all times relevant to this action an agent or employee of

NaphCare working as a physician at the Hamilton County Justice Center. Defendant Johansen is a

“person” under 42 U.S.C. § 1983 and at all times relevant to this case acted under color of law. He

is sued in both his individual and official capacities.

12. Defendant Angela M. Moore, RN, was at all times relevant to this action an agent or

employee of Hamilton County or NaphCare working as a nurse at the Hamilton County Justice

Center. Defendant Moore is a “person” under 42 U.S.C. § 1983 and at all times relevant to this

case acted under color of law. She is sued in both her individual and official capacities.

13. Defendant Allison Kolb, LPN, was at all times relevant to this action an agent or

employee of Hamilton County or NaphCare working as a nurse at the Hamilton County Justice

Center. Defendant Kolb is a “person” under 42 U.S.C. § 1983 and at all times relevant to this case

acted under color of law. She is sued in both her individual and official capacities.

14. Defendant Danielle McFarland, LPN, was at all times relevant to this action an agent or

employee of Hamilton County or NaphCare working as a nurse at the Hamilton County Justice

Center. Defendant McFarland is a “person” under 42 U.S.C. § 1983 and at all times relevant to

this case acted under color of law. She is sued in both her individual and official capacities.

15. Defendants John/Jane Doe # 1-5 were at all times relevant to this action were responsible

for providing medical care at the Hamilton County Justice Center and were employees of Hamilton

County, Ohio or its medical provider subcontractor, NaphCare. Defendants Does 1-5 are each a

“person” under 42 U.S.C. § 1983 and at all times relevant to this case acted under color of law.

Each of them is sued both in his or her individual and official capacity.

16. Defendants John/Jane Does # 5-10 were at all times relevant to this action corrections

officers employed at Hamilton County, Ohio. Defendant Does 5-10 are each a “person” under 42

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U.S.C. § 1983 and at all times relevant to this case each of them acted under color of law. Each of

them is sued both in his or her individual and official capacity.

IV. FACTS

A. Background

17. Tommy Britt was a 23 year old young man when he died on November 22, 2016. He

graduated from Oak Hills High School in 2012 and planned to attend college. He had a promising

future until he became addicted to heroin and fentanyl. His parents supported him through his

numerous attempts to break free of his addiction. However, after each time he successfully

finished treatment for his addiction, Tommy would relapse. Although Tommy Britt was part of the

heroin epidemic plaguing our community, his parents continued to love him, and he loved his

family. They were optimistic he would eventually become sober.

18. On October 26, 2016, Tommy was booked into the Hamilton County Justice Center for a

probation violation.

19. At booking, Tommy Britt was screened for his current health conditions. When he

entered the jail, he had several serious medical needs including infection and heroin withdrawal.

20. On October 26, 2016, Tommy asked to see a nurse for back pain and a runny nose. He

was seen that day and exhibited signs of heroin withdrawal including nausea, vomiting, and

diarrhea. His symptoms were noted as mild.

21. He was referred to an advance clinical practitioner, but that appointment was never made.

He was also instructed to submit a sick call request if his symptoms were not resolved or if his

condition worsened.

22. A note was placed in his chart that if he became “medically unstable” an Emergency

Offside form should be completed.

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23. On October 30, 2016, around 3 o’clock in the morning Defendant nurse McFarland, a

licensed practical nurse, took Tommy Britt’s temperature and noted it was elevated at 100.9. She

determined he had a rapid heart rate. It was 103, which meant his heart was experiencing

tachycardia. This is a serious medical condition for a person withdrawing from heroin and who

had a long history of IV drug use. Yet, Defendant McFarland made no further assessment, ordered

no blood tests, did not contact a doctor or make an appointment for Tommy to see a doctor.

24. On October 31, 2016, Defendant nurse McFarland assessed Tommy at 3 o’clock in the

morning and found his temperature was still 100.9 and his heart rate had risen to 107. She did not

assess, treat, or refer Tommy to a doctor.

25. On October 31, 2016, around 7:18 p.m., Tommy Britt pushed the call button in his cell

and told the officer he needed medical help. He was short of breath and felt like he was going to

pass out. The officers responded within a minute. When they arrived at Tommy’s cell he had

collapsed on the floor of his cell and was unresponsive. The officers called a medical emergency.

26. Defendant Sgt. Kilday responded to the medical emergency and found Tommy

unresponsive on the floor, unable to answer any questions. The officers who called the medical

emergency informed Sgt. Kilday that Tommy Britt had called for help, said he was having trouble

breathing and felt like he was going to pass out.

27. Immediately after Sgt. Kilday arrived, Defendant nurses Moore, Kolb and McFarland

arrived at the cell. They could not revive Tommy, so they administered smelling salts. He then

came around and explained he was not feeling well. When asked why he had not responded to the

officers asking him what was wrong, Tommy explained he had been unable to talk. He was

assisted to his feet, but fell to the ground each time he was stood up. The officers had to assist him

up.

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28. His vitals were checked. His heart rate was 105, indicating tachycardia. His temperature

was either not taken or not recorded. His temperature for the last two days had been elevated.

Defendants knew his current and prior medical condition and vitals.

29. The Defendant nurses asked Tommy what was going on. He said he needed to see a

nurse because his chest was hurting. He asked for medical attention. He begged to go to the

hospital.

30. When the nurses told Tommy Britt they were disregarding the medical emergency and

refusing to send him to the hospital he became upset. He insisted they send him to the hospital.

31. Despite their knowledge of Tommy’s serious medical needs, Defendants denied him

medical assessment and treatment and ignored his requests for help.

32. Instead of providing medical care, Sgt. Kilday and the Defendant nurses decided Tommy

Britt was “faking” being not responsive.

33. Sgt. Kilday ordered that Tommy be strapped into a restraint chair. Defendant’s actions

were punitive.

34. Defendant Moore, without any evidence, placed Tommy on Level I suicide watch. Level

I suicide watch means the inmate is placed in an empty cell with only a suicide smock.

Defendant’s actions were punitive.

35. With full knowledge of Tommy’s medical history at the jail and serious medical needs,

Dr. Johansen did not assess or treat Tommy. Instead, Dr. Johansen approved placing Tommy in

the restraint chair and on suicide watch. His actions were punitive.

36. Tommy Britt remained in the restraint chair for three hours. While he was in the restraint

chair the Defendants, including nurse Moore, violated jail policy by not allowing Tommy to

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exercise his limbs for ten minutes per limb, to drink water, or have the opportunity to use the

restroom hourly. While restrained no one monitored his vital signs.

37. At 10:35 pm Tommy was released from the restraint chair and held on suicide watch for

the next two days.

38. From the time he was released from the restraint chair until he was found in critical

condition at 5:30 am on November 2, 2016, no doctor or nurse assessed his medical condition,

took vital signs, or provided him medical treatment.

39. On the morning of November 2, 2016, he was found in critical condition with a heart rate

of 165 and an unsteady gait. The charge nurse immediately ordered that he be sent to the hospital.

While vital signs were taken twice on the morning of November 2, his temperature was not taken

or not recorded. At the hospital his temperature was 103.1.

40. Tommy Britt never recovered. His condition never improved after he was admitted to the

hospital’s intensive care unit. He remained in critical condition until his organs failed. He was

removed from life support on November 22, 2016.

41. It was foreseeable that by not giving Tommy medical care, properly assessing his

condition at the first sign on abnormal vitals, not providing access to a doctor, and by delaying

treatment, Defendants were decreasing Tommy Britt’s chances of recovery and survival.

42. Defendants Moore, Kolb, and McFarland were routinely and improperly called upon to

assess the health status of patients and were performing services beyond that legally authorized for

their licensures.

43. Dr. Everson, Dr. Johansen, the Sheriff, the County, and NaphCare policy makers had

policies, practices, customs and usages that caused inmates to needlessly suffer severe withdrawal

symptoms and side effects of IV drug use, including life threatening infections in the Hamilton

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County Jail. Such policies were the moving force behind the injuries suffered by Tommy Britt. By

following such policies Defendants were deliberately indifferent to the serious medical needs of

Tommy Britt.

44. Dr. Everson, Dr. Johansen, the Sheriff, the County, and NaphCare policy makers were

also deliberately indifferent to the serious medical needs of Tommy Britt by failing to train the

medical staff and implement jail policies, practices, customs and usages that adequately addressed

the obvious and known health and safety risks to inmates entering the Jail while withdrawing from

heroin and at risk of life threatening infections.

45. Defendants Hamilton County and Sheriff Neil had the power and ability to require

NaphCare to submit reports regarding its provision of medical care, and to meet with the Sheriff to

discuss the provision of medical care. Hamilton County and Sheriff Neil could fire NaphCare

medical staff under certain conditions. Defendants County and Sheriff could terminate the

agreement with NaphCare with or without cause.

46. Defendants Hamilton County and Sheriff Neil had the responsibility and duty to monitor

NaphCare’s performance as a contractor and ensure that the inmates within the Hamilton County

Jail were receiving adequate medical care. Defendants County and Sheriff failed to do so.

47. Defendants knew that inmates with histories of IV drug use and related infections were at

risk of serious infections and required immediate proper treatment to address these infections.

48. Defendants knew that inmates with a history of heroin and IV drug use who had signs of

infection needed immediate assessment and treatment or they would experience unnecessary

suffering. Defendants did not provide the assessment and treatment to Tommy Britt and inmates

like him and were deliberately indifferent to their suffering.

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49. Defendants Everson, Johansen, Hamilton County, Sheriff Neil, and NaphCare were

deliberately indifferent to the serious medical needs of inmates with histories of IV drug use and

related infections by requiring and permitting Defendants Moore, Kolb, and McFarland to

routinely and inappropriately assess the health status of patients and otherwise perform services

beyond that legally authorized for their level of licensure.

50. Defendants Everson, Johansen, Moore, Kolb, McFarland, Sheriff Neil, Hamilton County

and NaphCare acted negligently, recklessly, wantonly, willfully, knowingly, intentionally and with

deliberate indifference to the serious medical needs of Tommy Britt and other patients suffering

from complications as a result of IV drug use and related infections.

51. Defendants’ refusal to provide basic medical care in response to an obviously serious

medical risk was unreasonable, reckless, and deliberately indifferent to Tommy Britt’s serious

medical needs.

52. Defendants knew Tommy Britt had a serious medical need to be treated for withdrawal

and an infection, and that he was at serious risk of harm if he were not treated. Defendants

knowingly disregarded that risk.

53. Defendants acted intentionally, knowingly, unreasonably, negligently, recklessly, and

with deliberate indifference to the rights and safety of Tommy when they utterly failed to provide

any kind of medical care and placed him in restraints and on suicide watch.

54. The actions of the Defendants reflect an arbitrary abuse of government power, which

shocks the conscience.

55. Defendants Hamilton County, Sheriff Neil, Dr. Everson, and NaphCare, established

policies, practices and customs of unnecessarily delaying adequate medical health services to

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inmates, including Tommy, with serious medical needs and failing to secure appropriate, timely

treatment by appropriate medical providers for inmates, including Tommy.

56. The policies, customs, patterns, and practices of Hamilton County were the moving force

behind the constitutional deprivations suffered by Tommy at the HCJC. The deprivations included

the denial of adequate treatment, care, and observation. The extreme delay in securing adequate

medical treatment caused Tommy unnecessary pain and suffering and caused his death.

57. At all times relevant to this action, Defendants Hamilton County, NaphCare, Sheriff Neil,

and Dr. Everson failed to train and supervise the Jail staff, including the other defendants, in

properly caring for and treating inmates with serious medical needs. All Defendants simply

ignored the obvious risks of harm to Tommy and the simple means of timely treating and

managing Tommy’s medical condition.

58. Tommy’s harm was preventable with adequate medical care and medical treatment,

which was not provided by Defendants.

59. As a direct and proximate result of Defendants’ actions, Tommy endured extreme

physical pain and suffering, emotional distress, anguish, and humiliation before his death. Tommy

died a torturous death.

60. As a further direct and proximate result of Tommy’s wrongful death, his survivors and/or

heirs have suffered permanent damages, including but not limited to, the loss of his support,

services, and society, including lost companionship, care, assistance, attention, protection, advice,

guidance, counsel, instruction, training, and education, as well as the loss of prospective

inheritance.

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61. As a further direct and proximate result of Tommy’s wrongful death, Tommy’s survivors,

next of kin and/or heirs have suffered permanent damages, including but not limited to, grief,

depression, and severe emotional distress. They have incurred funeral bills and other expenses.

V. FIRST CAUSE OF ACTION – 42 U.S.C. § 1983

62. Plaintiff incorporates paragraphs 1 through 61 as if fully written herein.

63. Defendants have, under color of law, deprived Tommy Britt of rights, privileges and

immunities secured to him by the Fourth and Fourteenth Amendment of the United States

Constitution, including but not limited to, the right to adequate medical care when incarcerated as a

pretrial detainee.

64. Defendants Hamilton County, Sheriff Neil, NaphCare, and Dr. Everson failed to

adequately train and supervise the corrections officers and the medical staff in the assessment,

monitoring, and treatment of inmates in serious medical need.

65. The rules, regulations, customs, policies and procedures of the Defendants Hamilton

County, Sheriff Neil, NaphCare, and Dr. Everson regarding the treatment and management of

persons requiring specialty medical care were inadequate, unreasonable, and deliberately

indifferent and were the moving force behind the constitutional deprivations suffered by Tommy

Britt.

VI. SECOND CAUSE OF ACTION – MEDICAL MALPRACTICE

66. After Tommy Britt was admitted to the Jail, Defendant doctors and nurses failed to use

reasonable care in treating his heroin withdrawal and infections. Each Defendant doctor and nurse

defendant breached his or her duty to care for Tommy Britt.1

1
Affidavit of medical expert is attached.

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67. Defendant Medical Director Dr. Everson failed to ensure that adequate policies were in

place at the Jail to appropriately identify, diagnose and treat inmates entering the jail with a history

of IV drug use who were at risk for infections, including endocarditis.

68. The conduct of Dr. Everson and Dr. Johansen deviated from standard medical practice in

violation of Ohio law. Their conduct was a proximate cause of Tommy Britt’s injuries, including

pain and suffering, emotional trauma, pre-death agony, and lost chance of survival.

69. The conduct of Defendant nurses Moore, Kolb, and McFarland breached their duty to

provide medical care to Tommy Britt consistent with standard medical practice, all in violation of

Ohio law. Their conduct was a proximate cause of Tommy Britt’s injuries, including pain and

suffering, emotional trauma, pre-death agony, and lost chance of survival.

VII. THIRD CAUSE OF ACTION – NAPHCARE NEGLIGENCE

70. Defendant NaphCare and its employees and agents owed a duty of reasonable care to

Tommy Britt.

71. Defendant NaphCare had a duty to provide qualified personnel who were adequately

trained and supervised to perform medical services at the Jail and a duty to use reasonable care in

determining the qualifications and adequate performance of its contractors, agents and employees

who provide medical services. Defendant NaphCare breached this duty.

72. Defendant NaphCare had a duty to establish appropriate policies and procedures

concerning the medical treatment of inmates at the Jail. Defendant NaphCare breached this duty.

73. Defendant NaphCare, their contractors, employees and agents breached their duty of care

to Tommy Britt by failing to provide appropriate medical care and treatment under the

circumstances.

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74. NaphCare’s conduct was a proximate cause of Tommy Britt’s injuries, including pain and

suffering, emotional trauma, pre-death agony, and lost chance of survival.

VIII. FOURTH CAUSE OF ACTION – WRONGFUL DEATH

75. Defendants Everson, Johansen, Moore, Kalb, McFarland, Kilday, and NaphCare’s

actions caused the wrongful death of Tommy Britt resulting in damages recoverable under O.R.C.

§ 2125.02.

IX. JURY DEMAND

76. Plaintiff requests a jury trial on all claims triable to a jury.

X. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Court:

A. Award Plaintiff compensatory damages in an amount to be shown at trial;

B. Award punitive damages against the individual Defendants (not Hamilton County) in an

amount to be shown at trial;

C. Award Plaintiff reasonable attorney's fees and costs under 42 U.S.C. § 1988;

D. Award Plaintiff prejudgment interest;

E. Grant to the Plaintiff such additional relief as the Court deems just and proper.

Respectfully submitted,

s/ Jennifer L. Branch
Jennifer L. Branch (0038893)
Trial Attorney for Plaintiff
Alphonse A. Gerhardstein (0032053)
Attorney for Plaintiff
Gerhardstein & Branch, Co LPA
441 Vine Street, Suite 3400
Cincinnati, Ohio 45202
(513) 621-9100 Phone
(513) 345-5543 Fax
jbranch@gbfirm.com

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