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Fitzpatrick v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

February 21, 2018

PATRICIA FITZPATRICK and ROBERT L. ANSARA, as Special Co-Administrators and Special Representatives of the Estate of JEREMIAH BOWLING, deceased; and PATRICIA FITZPATRICK, as Heir and Mother of JEREMIAH BOWLING, deceased, Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a political subdivision of the State of Nevada; ANGELO LARRY, Corrections Officer, individually and in his official capacity; ROLANDO TREVINO, Corrections Officer, individually and in his official capacity; DOES 1 through 10, individually and/or in their official capacities; DOE CLASSIFICATION OFFICERS 1 through 10, individually and/or in their official capacities; DOE CORRECTIONS OFFICERS 1 through 10, individually and/or in their official capacities; ROE CORPORATIONS 1 through 10, Foreign and/or Domestic Corporations; NAPHCARE, INC., an Alabama corporation qualified to do business in the State of Nevada; DOE HEALTH CARE PROVIDERS 1 through 10, individually, Defendants.

          MORTON LAW, PLLC Nadine M. Morton, Esq. Attorney for Plaintiffs.

          LEWIS BRISBOIS BISGAARD & SMITH Robert W. Freeman, Jr., Esq. Attorneys for Defendants.

          STIPULATION AND [PROPOSED] ORDER TO FILE SECOND AMENDED COMPLAINT

         COME NOW PLAINTIFFS PATRICIA FITZPATRICK AND ROBERT L. ANSARA, as Special Co-Administrators and Special Representatives of the Estate of Jeremiah Bowling, deceased; and Patricia Fitzpatrick, as heir and mother of Jeremiah Bowling, deceased, by and through their attorney, NADINE M. MORTON, ESQ., and Defendants LAS VEGAS METROPOLITAN POLICE DEPARTMENT, ANGELO LARRY, AND ROLANDO TREVINO, CORRECTIONS OFFICER, by and through their attorney, ROBERT W. FREEMAN, JR., Esq., and agree and stipulate that Plaintiffs be granted leave to file their Second Amended Complaint, naming NAPHCARE, INC. as a Defendant in this matter.

         Through discovery in this matter, Plaintiffs have concluded that NAPHCARE, INC. is an appropriate and essential party to this matter, and, in the interests of judicial economy, seek, to add NAPHCARE, INC. as a Defendant herein rather than bringing a separate action against it. The proposed Second Amended Complaint is attached hereto as Exhibit 1.

         ORDER

         Based upon the foregoing Stipulation among the parties named herein, and good cause ippearing, IT IS SO ORDERED.

         IT IS FURTHER ORDERED that plaintiffs shall forthwith separately file the Second Amended Complaint which is attached as Exhibit 1 to the stipulation.

         EXHIBIT 1

         PATRICIA FITZPATRICK and ROBERT L. ANSARA, as Special Co-Administrators 'and Special Representatives of the Estate of JEREMIAH BOWLING, and PATRICIA FITZPATRICK, as Heir and Mother of JEREMIAH BOWLING (hereinafter "Plaintiffs"), by and through their counsel of record, NADINE M. MORTON, ESQ. of MORTON LAW, PLLC, set forth their Second Amended Complaint as follows:

         I. PARTIES

         1. At all times relevant hereto, JEREMIAH BOWLING was a resident of Clark County, Nevada.

         2. Plaintiffs PATRICIA FITZPATRICK and ROBERT L. ANSARA bring this suit in their capacity as Special Co-Administrators for the Estate of JEREMIAH BOWLING.

         3. PATRICIA FITZPATRICK brings this action as the Heir and Mother of JEREMIAH BOWLING.

         4. Plaintiff PATRICIA FITZPATRICK is the JEREMIAH BOWLING'S mother.

         5. Plaintiff PATRICIA FITZPATRICK is, and at all times herein mentioned was, a resident of the State of Kentucky.

         6. Plaintiff PATRICIA FITZPATRICK was appointed as Co-Special Administrator of the Estate of JEREMIAH BOWLING and Personal Representative of JEREMIAH BOWLING by the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, on May 12, 2017, Case Number P-17-091479-E.

         7. ROBERT L. ANSARA is a private administrator and was appointed as Co-Special Administrator of the Estate of JEREMIAH BOWLING and Personal Representative of JEREMIAH BOWLING by the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, on May 12, 2017, Case Number P-17-091479-E.

         8. At all times relevant hereto, Defendant LAS VEGAS METROPOLITAN POLICE DEPARTMENT ("LVMPD") was and is a political subdivision of the State of Nevada, and was and is a person as defined in Monell v. Department of Social Services, 436. U.S. 658(1978).

         9. At all times relevant hereto, Defendant LVMPD was and is responsible for the hiring, control and supervision of all of CCDC detention and police officers and agents, as well as the implementation and maintenance of official and unofficial policies, procedures, practices, customs and/or usage pertaining to the day-to-day functioning of CCDC.

         10. At all times relevant hereto, Defendant NAPHCARE, INC. was and is an Alabama corporation, duly authorized to do business in, and doing business in, Clark County, Nevada.

         11. At all times relevant hereto, Defendants DOE HEALTH CARE PROVIDERS 1 through 10, and each of them, were employees, agents, and/or contractors of Defendant NAPHCARE, INC., and were, individually and/or collectively, responsible for conducting and/or documenting the medical and/or psychological evaluation, classification, diagnosis, care, and/or treatment of inmates at CCDC, including but not limited to Franklin Sharp and JEREMIAH BOWLING.

         12. At all times relevant hereto, Defendants NAPHCARE, INC. and/or DOE HEALTH CARE PROVIDERS 1 through 10, and each of them, performed all actions and/or omissions herein alleged pursuant to a contract with Defendant LVMPD and/or the City of Las Vegas.

         13. At all times relevant hereto, Defendant NAPHCARE, INC. and/or DOE HEALTH CARE PROVIDERS 1 through 10, and each of them, were responsible for conducting and/or documenting the medical and/or psychological evaluation, classification, diagnosis, care, and/or treatment of inmates at CCDC, including but not limited to Franklin Sharp and JEREMIAH BOWLING.

         14. At all times relevant hereto, Defendant NAPHCARE, INC. and/or DOE HEALTH CARE PROVIDERS 1 through 10, and each of them, were responsible for recommending to Defendant LVMPD personnel, based on Defendant NAPHCARE, INC.'s medical and/or psychological evaluation, classification, diagnosis, care, and/or treatment, appropriate classification, housing, care, protection, and treatment of inmates at CCDC, including but not limited to Franklin Sharp and JEREMIAH BOWLING.

         15. At all times relevant hereto, Defendants DOES 1 through 10, and each of them, were employees, agents, contractors, and/or representatives of CCDC responsible for creating and implementing policies, procedures, practices, customs and/or usage for inmate classification, cell assignment, protection of inmates from violence by other inmates, and equal and appropriate treatment of vulnerable inmates.

         16. At all times relevant hereto, Defendants ANGELO LARRY, ROLANDO TREVINO, and DOE CORRECTIONS OFFICERS 1 through 10, and each of them, were Corrections Officers employed by Defendant LVMPD, and were responsible for the health and safety of decedent JEREMIAH BOWLING at the time of his death, including monitoring his safety and obtaining appropriate medical treatment for him.

         17. At all times relevant hereto DOE CLASSIFICATION OFFICERS 1 through 10, and each of them, followed prescribed policies, procedures, practices, customs and/or usage to classify inmates and/or to assign those inmates to cells or other housing within CCDC.

         II. JURISDICTION

         18. Jurisdiction and venue are proper in the District of Nevada because the events giving rise to this action took place in Las Vegas, Nevada.

         19. Jurisdiction and venue in United States District Court for the District of Nevada arises because the action addresses a Federal Question, pursuant to 42 United States Code Section 1983 and the Fourteenth Amendment to the United States Constitution. In addition, this Court has supplemental jurisdiction over the state-law claims pursuant to 28 United States Code Section 1367.

         III. ALLEGATIONS COMMON TO ALL COUNTS

         20. This action arises from the homicide of JEREMIAH BOWLING while he was in the custody of LVMPD as a pre-trial detainee, incarcerated as a nonviolent offender at the Clark County Detention Center ("CCDC"), located at 330 South Casino Center Boulevard, Las Vegas, Nevada 89101.

         21. JEREMIAH BOWLING was last known to be alive and unharmed at approximately 4:16 p.m. on October 8, 2016, when inmates Franklin Sharp and JEREMIAH BOWLING were locked down in their shared cell, Male Close Custody Unit Cell #21, located in the 3B module on the third floor of North Tower of CCDC.

         22. Neither Franklin Sharp nor JEREMIAH BOWLING could exit the cell through the cell door or through the windows because the cell door was locked and the windows could not be opened.

         23. On October 8, 2016, Franklin Sharp killed JEREMIAH BOWLING by strangling him with a bed sheet and/or other ligature and by striking JEREMIAH BOWLING about the head and body and slamming JEREMIAH BOWLING'S head against the cell floor and walls.

         24. Franklin Sharp and JEREMIAH BOWLING were the only two persons in Cell #21 at the time of the homicide.

         25. The cell door was locked at the time of the homicide, and entry into the room could be made only by unlocking the door.

         26. At approximately 5:30 p.m. on October 8, 2016, CORRECTIONS OFFICER ANGELO LARRY began the process of visually checking all 46 cells in the module, beginning with Cell #1 on the first floor.

         27. When CORRECTIONS OFFICER ANGELO LARRY arrived at Cell #21, he looked through the window in the locked cell door and saw Franklin Sharp at the wash basin.

         28. Franklin Sharp was washing his hands, and his hair was wet and appeared to CORRECTIONS OFFICER ANGELO LARRY to have soap in it.

         29. CORRECTIONS OFFICER ANGELO LARRY could not see JEREMIAH BOWLING in the cell, so he instructed Franklin Sharp to back up.

         30. Franklin Sharp complied and walked to the opposite side of the cell from the door and sat down on the bottom bunk.

         31. CORRECTIONS OFFICER ANGELO LARRY looked down through the cell door window and saw JEREMIAH BOWLING lying on the floor near the door.

         32. CORRECTIONS OFFICER ANGELO LARRY called for medical assistance.

         33. CORRECTIONS OFFICER ROLANDO TREVINO responded from a neighboring module.

         34. CORRECTIONS OFFICER ROLANDO TREVINO entered the cell and saw JEREMIAH BOWLING lying face-down in a pool of blood, unresponsive.

         35. CORRECTIONS OFFICER ROLANDO TREVINO summoned additional assistance over the radio, put on gloves, and pulled JEREMIAH BOWLING out of the cell and into the dayroom.

         36. At approximately 5:58 p.m. on October 8, 2016, emergency medical personnel arrived and transported JEREMIAH BOWLING to University Medical Center ("UMC").

         37. At 6:12 p.m. on October 8, 2016, UMC physician Paul Chestovich, M.D. pronounced JEREMIAH BOWLING deceased.

         38. JEREMIAH BOWLING had facial trauma and a three- to four-millimeter ligature mark around his neck.

         39. Blood spatter around the pool of blood on the cell floor indicated that JEREMIAH BOWLING'S head was slammed down multiple times into the pool of blood.

         40. CORRECTIONS OFFICER ANGELO LARRY moved Franklin Sharp away from the cell and asked him what had occurred.

         41. Franklin Sharp replied, "He [JEREMIAH BOWLING] would not let me look out the window." 42. Franklin Sharp had dried blood spatter on the lower portions of both of his legs.

         43. Franklin Sharp otherwise refused to speak with Corrections Officers regarding the incident.

         44. At the time he was celled with JEREMIAH BOWLING, Franklin Sharp was a violent offender with ten (10) felony offenses, twenty-seven (27) misdemeanor convictions, and eighteen (18) failures to appear, had been in custody of law enforcement on at least twenty-six (26) different occasions, and was in custody in Case C-16-316351-1, charged with Robbery With Use Of A Deadly Weapon and Assault With A Deadly Weapon and Case 16F14684X, charged with Battery By Prisoner, Attempt Murder, and Battery By Strangulation.

         45. Franklin Sharp was deemed a high-risk level by Nevada Pretrial Risk Assessment.

         46. The Information in District Court Case Number C-16-316351-1 states that Franklin Sharp stood up in front of a named victim, pulled out a white-handled knife, and began to pull it back as if Franklin Sharp was going to stab the victim.

         47. The Information in District Court Case Number C-16-316351-1 states that the victim pleaded with Franklin Sharp not to stab him. Franklin Sharp then grabbed the victim's cell phone, threw it on the ground, and told the victim to "beg for your life."

         48. The Information in District Court Case Number C-16-316351-1 states that Franklin Sharp was captured shortly after this incident, and a small hatchet knife was located on his person.

         49. Franklin Sharp's jury trial on these charges was scheduled for December 5, 2016.

         50. On September 4, 2016, while awaiting his jury trial, Franklin Sharp was re-booked for Battery By Strangulation, Attempted Murder, and Battery By Prisoner, Justice Court Case Number 16F14684X.

         51. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that on September 4, 2016, at approximately 0120 hours, Franklin Sharp attacked inmate Joseph Barrese and attempted to strangle him using a cloth-like material.

         52. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that Corrections Officer Kevin Gale heard Franklin Sharp saying, "Die, motherfucker" while squeezing the cloth-like material around Joseph Barrese's neck.

         53. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that Corrections Officer Kevin Gale in the module witnessed the attack and was able to intervene in time to prevent Joseph Barrese from being killed by Franklin Sharp.

         54. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that Franklin Sharp had torn a piece of cloth from his bed sheet and used it as a ligature.

         55. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that surveillance footage shows Franklin Sharp sit up in his bed and put on his recreational shoes, which is not allowed at that time of night.

         56. The Complaint and Arrest Report in Justice Court Case Number 16F14684X allege that surveillance footage shows Franklin Sharp walking toward Joseph Barrese's bed while ...


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