Jail death lawsuit: Judge allows negligence and wrongful death arguments to proceed, dismisses some others

photo by: Court document

This photo pictures the pod inside the Douglas County Correctional Facility where inmate Rachel Hammers died, in an upstairs cell, on May 12, 2012. The photo is among exhibits in a wrongful death lawsuit filed in federal court by Hammers' father on behalf of her three minor children.

A federal judge has whittled down a broad lawsuit against Douglas County officials brought by the father of a woman who died in the county jail.

However, key arguments in the multipart, multidefendant suit still stand and should be weighed by a jury because supporting facts are in dispute, U.S. District Court of Kansas Judge Carlos Murguia ruled in an order filed this week.

A jury trial to decide those remaining arguments is currently scheduled to begin June 4 in Kansas City, Kan.

Broadly, Murguia’s order keeps intact most claims against the county and officials — including wrongful death and negligence claims — but throws out arguments against the sheriff and undersheriff in their individual capacities.

“Kansas law recognizes that a ‘county maintaining a jail owes a duty of care to the inmates housed there,'” Murguia wrote regarding the wrongful death and negligence claims, quoting rulings in past cases. “A county owes a duty of reasonable care to inmates ‘because they are not at liberty to meet their own needs and, thus, must depend upon those who hold them.'”

Murguia said a jury should consider evidence and reach a decision on that matter.

“The court finds that enough evidence exists that a reasonable jury could find defendants breached their duty to ‘exercise reasonable and ordinary care for the life and health of the prisoner’ and to ‘furnish medical attention to a prisoner in custody who is in need of medical attention,'” Murguia wrote.

Inmate Rachel Hammers was 32 when she died in her cell — unnoticed by her cellmate and not witnessed by jail staff, according to depositions — in the middle of the morning on May 12, 2012.

Hammers suffered from chronic alcoholism and had a history of seizures, high blood pressure and alcohol withdrawal.

Her death certificate said her sudden death was due to a seizure disorder, probably related to alcohol withdrawal, according to case background in Murguia’s order.


The related civil lawsuit has now been pending four years. It was first filed in Douglas County District Court in April 2014 and moved to federal court in 2015.

Hammers’ father, Joseph Harvey, a Lawrence oral surgeon, sued the Douglas County Commission; Sheriff Ken McGovern; former Undersheriff Kenneth Massey; three unnamed individuals; Dr. Dennis Sale; and the Douglas County Visiting Nurses Association. Harvey’s suit demanded more than $1.35 million for Hammers’ children in reparation for her death.

Sale and the VNA reached confidential settlements with Harvey in 2017 and 2016, and claims against them were dismissed.

Since the jail opened in 1999, Hammers has been the only inmate to die there.

The county, in a motion for summary judgment filed in May 2017, had asked the judge to dismiss claims against the County Commission, the sheriff and the undersheriff.

The judge’s order, signed Wednesday, denied some parts and granted other parts of that request.

Specifically, Murguia ruled that the following may go forward:

• Accusations that the County Commission and the sheriff were deliberately indifferent to serious medical need and that there was an obvious lack of training for evaluating inmates’ medical conditions.

• The accusation that the defendants wrongfully caused Hammers’ death by failing to have an adequate health care delivery system in place and failing to implement adequate policies and procedures for inmate care.

• The accusation that the defendants were negligent by deviating from generally recognized correctional practices.

Murguia dismissed all accusations against the sheriff and undersheriff in their personal capacities; accusations of deliberate indifference and lack of training against the undersheriff in his official capacity; and the accusation that the county and both men in their official capacities failed to properly supervise jail staff.

The judge’s order on the motion for summary judgment did not specifically address the three individual defendants listed as “John Does 1-3.”

Kansas City, Mo.-based attorney Arthur Benson is representing Harvey in the case.

In reaction to the judge’s ruling, Benson said Thursday that Hammers’ family was pleased and looked forward to moving forward with the case.

Michael Seck of Overland Park-based Fisher, Patterson, Sayler & Smith LLC is representing the county. Seck did not immediately respond to messages from the Journal-World late Thursday afternoon.


According to case background in the judge’s order:

In the months before her death, Hammers had multiple other short stays in the jail stemming from DUI convictions and related parole violations. The jail had medical and prescription information for her on file, and during one of those stays she did experience moderate to severe alcohol withdrawal in jail, but in the following stay she did not.

The evening before she died, Hammers had been booked into the jail on a third bench warrant for failing to appear on a parole violation charge. After finding Hammers intoxicated that morning and helping with her children, her mother, in agreement with her father, decided to call police.

Upon being booked into the jail about 6 p.m., Hammers reported that she’d had her last drink at 10 a.m. that day. She also reported she had depression, high blood pressure and had experienced a seizure two years ago.

Jail staff reported that she did not appear intoxicated and did not display withdrawal symptoms. She was scheduled to see a nurse the following day.

Jail staff and Hammers’ cellmate said she did not appear drunk or to have symptoms of alcohol withdrawal that night or the next morning.

After breakfast, Hammers and her cellmate returned to their cell to nap. The cellmate woke up, cleaned the cell and left to take a shower. She reported that she’d heard Hammers snoring and sounding congested as she slept but did not think anything was wrong with her.

Hammers did not respond to a corrections officer asking via intercom if she wanted to take her free time. After radioing for backup, the officer entered the cell and found Hammers unresponsive. The officer determined Hammers had no pulse and began CPR.

Paramedics entered the cell at 10:04 a.m. and took Hammers to the hospital, where she was pronounced dead at 10:46 a.m.

“Hammers not only experienced extensive pain and suffering, but she died a horrible and preventable death,” her father’s lawsuit alleges.

The county has denied allegations in the suit, saying jail staff followed protocol and wasn’t liable for her death.

“The evidence shows that Hammers’ medical condition, even if one were to assume that she died of an alcohol seizure, would not be apparent to a lay person nor even to medical staff,” Seck wrote in the county’s motion for summary judgment.

“Quite simply, no one who came in contact with Hammers during her incarceration had any inkling that there was a serious medical condition that had to be addressed. The mere fact that she died in custody does not infer negligence.”