December 4, 2017 ..

so: at at?
EXEGUWE 

 

All Via Federal Express

Muskogee County Muskogee County Board of County Commissioners
c/o Muskogee County Clerk

4100 West Broadway

Muskogee, Oklahoma 74401

Muskogee County Council of Youth Services
c/o Jean C. Lewis

107 North 16th Street

Muskogee, Oklahoma 74401

State of Oklahoma ex. rel. Of?ce of
Juvenile Affairs

3812 N. 36th St, Suite 400
Oklahoma City, OK 73118

Re: Oklahoma Governmental ort Claims Act (51 Okla. Stat. ?151 et seq.)
Notice of Claim, Estate of Billy Woods

To the Above Recipients:

Please take notice that we are submitting this Tort Claim, pursuant to 51 Okla.
Stat. ?151 et seq, on behalf of Robbie Burke (?Claimant?), Special Administrator for the
Estate of Billy Woods, deceased (?Bi11y? or ?Mr. Woods?).

A. Claimant?s Name and Mailing Address

Robbie Emery Burke
320 Boston Ave 1030
Tulsa, Oklahoma 74103

B. Name and Address to Which to Send Notices

Daniel Smolen

Smolen Smolen Roytman, PLLC
701 South Cincinnati

Tulsa, Oklahoma 74119

 

C. Summary of Claim
1. Introductory Statement

As described herein Billy Woods tragically and needlessly died on December 15,

2016. He was just Billy died alone in his room at the Muskogee County
Regional Juvenile Detention Center (he1einafter, or ?the Facility?) after hanging
himself with a bed sheet. In truth however, this child died as a proximate result of
reckless neglect and deliberate indifference to his serious medical and mental health
needs. The lack of supervision, competent care and compassion Billy encountered at
MJDC is shocking and heartbreaking. During his short stay at MJDC, Billy came into
contact with numerous detention workers, including Shift Supervisor Jerrod Lang
Each of these detention workers had an opportunity and duty to help Billy.
Any one of these individuals could have easily saved Mr. Woods life had they
followed simple procedures or shown him even a modicum of human decency. Yet,
none of them could be bothered to take the most minimal steps to address Billy 
conspicuous medical and mental health needs.

Indeed, Lang enhanced the risks to this vulnerable boy by humiliating and
belittling him, only to later refuse to check on him for hours. And in a horrendous
display of inhumanity, after Billy was found unresponsive in his room with the make-
shift noose tied around his neck, Lang left Billy to go take an extended cigarette break.
As valuable time was wasting, no one at the Facility attempted CPR, no one removed the
noose from Billy neck and no one called 911 (for 20 minutes). Rather, while an
unconscious sixteenuyear-old boy laid under a sink, Lang was puf?ng on a cigarette. A
half an hour later, Billy was pronounced dead. This is gross negligence. This is
inhumane mistreatment. This is deliberate indifference.

2. Statement of Facts

Billy Woods was just a 16?year- o?ld boy when he was brought to the Muskogee
County Regional Juvenile Detention Center (hereinafter, or ?the Facility?) on
December 14,2016. Billy was admitted to MJDC for a mere curfew violation. At the
time, MJDC was operated by Muskogee County Council of Youth Services
under a subcontract with Muskogee County (the ?County?). Shift
Supervisor Jerrod Lang a MCCOYS employee, arrived at MJDC at 3: 00 pm on
December 14 and began conducting the resident intake process for Billy. However,
Lang asserts that Billy did not cooperate with the process. As such, Billy was initially
placed alone in a room for four (4) hours, without having completed the intake process.

 

1 Juveniles housed at MJDC were technically under the custody of Oklahoma
Department of Juvenile Affairs However, MJDC is a County facility that was
staffed with MCCOYS employees and agents.

 

When Lang and Billy resumed the intake procedure, Billy told Lang that he ?had tried to
commit suicide ?a lot. (emphasis added). Billy speci?cally informed Lang that his
most recent suicide attempt occurred just one month prior to being placed at MJDC, and
that he had tried to hang himself on multiple occasions. Thus, the suicide risk presented
was known, substantial and documented.

More generally, it is well established that detained youth are at heightened and
excessive risk of self harm. As stated in peer-reviewed medical literature:

Suicide is the third leading cause of death in young people aged 15 to 24
years, affecting 9.5 per 100,000 adolescents in 2003. Suicide among youth
has nearly doubled since 1950, increasing at a faster rate than among
groups 25 years and older. Suicide is an even greater risk in incarcerated
youth; available national data suggest that prevalence rates of completed
suicide are between 2 and 4 times higher among youth in custody than
among youth in the community. Incarcerated youth have characteristics
commonly associated with increased risk for suicide, such as high rates of
disorder and trauma. Conditions associated with confinement,
such as separation from loved ones, crowding, locked sleeping rooms, and
solitary con?nement, may also increase risk for suicide.

Abram, K, ?Suicidal Ideation and Behaviors Among Youth in Juvenile Detention?, Am
Acad Child Adolesc 2008 Mar; 47(3): 291-8 00 (emphasis added).

Nevertheless, the County and MCCOYS did little, if anything, to alleviate these
known risks. On the contrary, as demonstrated by this case, through their acts and
omissions, the County and MCCOYS exacerbated and aggravated the already excessive
risks of self?harm.

Lang purportedly filled out a written ?suicide assessment? form
contemporaneously with the intake process. Oddly, Billy did not sign the suicide
assessment form, though he did sign all of the other intake forms. Lang did not place
Billy on suicide watch and did not seek to secure any mental health assessment or
treatment for Billy. Rather, Billy was placed in Room 1 at the Facility. Because Billy
was not placed on suicide precautions, he had access to a ?at sheet, a fitted sheet, one or
two blankets and a pillow case. In addition, Room 1 was the only room in the Facility
equipped with a handicap accessible bar across the front of the sink. In other words,
Room 1 was the most dangerous possible placement for a young man with a known, and
recent, history of attempted suicide by hanging. Room 1 presented the perfect means and
opportunity for suicide by hanging.

Despite being tasked with conducting the suicide assessment, Lang had no training
or education in or Moreover, Lang was never provided with any
training by OJA, the County or MCCOYS in recognizing or identifying the signs and
of suicidal ideation. The Facility relies on shift supervisors, like Lang, to
conduct all such suicide assessments despite their clear lack of quali?cations, education

 

or training. Simply put, in deliberate indifference to the known and obvious risks to the
juvenile resident population, the Facility does not have any quali?ed mental health
professional to administer suicide assessments for the youthful residents.

The obvious and excessive risks of placing Billy in Room 1 could have been
lessened by compliance with Oklahoma?s Juvenile Detention Standards. For instance,
the Juvenile Detention Standards require that ?[a]ny juvenile shall be visibly observed by
a staff member every 15 minutes, and this must be documented.? OAC at
However, in clear violation of this requirement, Billy was not observed by
MJDC staff every 15 minutes. On the contrary, there was a period of time, on December
15, 2016, when Woods was not checked on by staff for over two (2) hours. Making
matters worse, MJDC staff, including Lang, falsely reported, on the daily notes form, that
they had checked on Billy every 15 minutes, when video evidence proves they did not.
In fact, the December 15 daily notes form was ?pre-emptively ?lled out for the entire
3:00 pm to 11:00 pm shift 

Adding insult to injury, there is evidence that Lang ?made fun of the way Woods
talked?, belittled Billy and ridiculed him about his middle name, Duane. This
mistreatment caused Billy to be withdrawn from the other residents and to stay in his
room. It is unconscionable that Lang would ridicule and belittle a troubled 16-year-old
boy with a known history of suicide attempts. In this regard, such mistreatment
constitutes a clear violation of the Juvenile Detention Standards? prohibition against
punishment by ?humiliation [or] mental OAC Moreover, by
belittling and humiliating this highly vulnerable young man, Lang greatly enhanced the
already significant risk that Billy would harm himself. Indeed, Lang created this
enhanced danger in deliberate indifference to Woods? serious mental health needs. See,
Conradt v. NBC Universal, Inc, 536 F. Supp. 2d 380, 394?95 (S.D.N.Y. 2008)
reasonable jury could find that NBC persuaded the police of?cers to engage in
tactics in a manner that they knew would publicly humiliatea public servant 
thereby creating or enhancing the risk of suicide or other danger, without taking any
steps to prevent a foreseeable injury?) (emphasis added).

As noted above, Billy was infrequently monitored during the 3 :00 pm to 11:00 pm
shift of December 15, 2016. The daily notes form indicates that detention worker
Brandon Miller (?Miller?) and Lang checked on Billy at 6:45 pm, 7:00 pm, 7:15 pm, 7:30
pm, 7:45 pm, 8:00 pm, 8: 15 pm, and 8:30 pm. However, video evidence proves that
of these purported welfare checks actually occurred. As one particularly stunning
example of neglect, at approximately 7:32 pm, Miller placed his hand on the door to
Billy?s room, but did not bother to check on him. Then, at around 7:37 pm, Miller was
standing right beside the door to Room 1, but failed to look in on him.

When Lang ?nally got around to actually checking on Billy, at 8:36pm, which was
over two (2) hours a?er the last observation, he discovered Woods unconscious and
unresponsive in Room 1. Billy?s skin appeared to be ?purple? or grey in color and he had
spittle hanging from his lip. There was a sheet tied around Billy?s neck. The other end of
the sheet was tied to the handicap bar under the sink.

 

Amazingly, Lang did not remove the sheet from Billy?s neck. Instead, he closed
the door, leaving Billy in Room I with the sheet still around his neck, and instructed
staff to place the other residents on lock down. Lang did not perform CPR on Billy.
Moreover, and inexplicably, Lang actually instructed Miller n_o_t_ to conduct CPR. None
of the staff members performed CPR. Lang?s only explanation for this is that he was in
shock and panicked. Lang knew that Billy?s purplish color meant that he had been
depleted of oxygen. Yet, he still refused any attempt to assist him, while also obstructing
Miller from providing CPR. Rather than take any measures to resuscitate or otherwise
assist the unresponsive Mr. Woods, Lang exited the Facility and ?smoked a bunch of
cigarettes.? While Lang was taking this smoke break, a sixteen?year?old boy under his
care was still in Room 1, unresponsive with a make?shift noose around his neck.

Lang?s handling of this situation constitutes a shocking level of neglect,
inhumanity and utter indifference to Billy?s serious, obvious and emergent medical
needs.

MJDC policy requires that a juvenile is seriously injured or has a medical
emergency, the following procedures should be followed: 1) One staff member is to
administer ?rst aid if necessary. One staff member is to secure the remaining population.
2) The Administrator is to be called immediately. If it is a life or death situation the shift
supervisor is to call 91 1 before notyfying the Administrator.? Here, wasting more
valuable time, in violation of this policy, staff called the Facility Administrator prior to
calling Indeed, 9?l-l was not called until 8:56pm, twenty (20) minutes after Billy
had been discovered unconscious in Room 1. Detention worker Angela Miller was
tasked with calling 911, but can provide no explanation for the twenty?minute delay. As
the clock ticked, and Lang puffed on his cigarette, any hope of saving Billy?s life quickly
withered away.

According to the Medical Examiner?s Report, Billy was pronounced dead at
9:05pm on December 15, 2016. The stated ?cause of death? was ?hanging? and the
?manner of death? was ?suicide?. But the true cause of death was the prevailing attitude
of indifference and gross incompetence exhibited by the MIDC staff.

A subsequent investigation was conducted by the Oklahoma Department of
Human Services? Of?ce of Client Advocacy The investigation
focused on whether personnel at MJDC, including Lang, Miller, Angela Miller and
Marietta Winkle, violated the Oklahoma Children?s Code?s prescription of child
?Neglect? and/or child ?Abuse?. Through the investigation, OCA determined that the
allegations of neglect against Lang, Miller, Angela Miller and Marietta Winkle were
substantiated and the allegations of abuse against Lang were substantiated. Therefore,
Plaintiff may properly allege and establish negligence per se liability. See, Howard
v. Zimmer, Inc, 2013 OK 17, ll 13, 299 P.3d 463, 467?68.

Billy?s horri?c death was no freak accident. On the contrary, his death was as
foreseeable as it was preventable. Through their established policies, practices, and

 

customs, the County and MCCOYS disregarded known and substantial risks to the health
and safety of inmates like Billy Woods.

Failure to Train/ Failure to Supervise Despite being promoted to a supervisor
position, Lang did not receive any formal training in how to work, let alone supervise, at
the Facility. It is mandated that ?[a]ll staff shall be trained on facility policy and
procedure and a training record be established for each staff member.? OAC 377:3?13-
43(8). Nevertheless, there was general confusion and disagreement about the Facility
policies and protocols due to a lack of training and education. Detention workers and
supervisors alike did not know or understand the Facility policies. For example, and
pertinently, the Facility?s suicide precaution policy requires that "When the juvenile is in
his/her room they are monitored by intercom and visually observed every ?ve (5)
minutes. However, Lang, Miller and Winkle had no knowledge of the 5-minute
observation requirements for suicide watch, and none of them knew residents were to be 
monitored with the intercom. While A. Miller was stationed at the control center, and
cOuld have monitored Billy via intercom, she failed to do so, presumably due to her lack
of training on the policies and procedures. This simple measure, of using the intercom to
monitor Billy, very well could have saved his life. However, the County and MCCOYS
did not care enough about the welfare of MJDC residents to train the staff concerning this
basic policy and safety measure.

The Juvenile Detention Standards additionally require that ?[t]he secure juvenile
detention facility shall develop and maintain written policy and procedure which:
assures that detention staff and other personnel are trained to respond to health related
situations; and establishes a training program that includes: administration of first aid
and cardiopulmonary resuscitation (CPR) [and] signs and of mental illness,
retardation and drug and alcohol OAC The County and
MCCOYS also fundamentally failed to comply with these requirements.

As noted above, despite Shift Supervisors being tasked with conducting suicide
assessments, the supervisors were provided with no formal training on recognizing signs
and of suicidal ideation or behaviors. Lang and the other staff were simply left
to their own devices to ?figure things This failure to train and supervise the
under-quali?ed staff was destined for disaster. Without anyone with the requisite
training and quali?cations in mental health at MJDC, the entire resident population,
including Billy, was put at unnecessary and excessive risk of harm.

Overall, the County and MCCOYS utterly failed to train and supervise MJDC
staff with respect to basic, and essential, policies and procedures necessary to the safety
of the juvenile residents, in deliberate indifference to the harm likely to result.

Inadequate Staf?ng The Facility also has severe and chronic staffing deficiencies
which place the residents at increased and substantial risk of harm. Lang was promoted to
Shift Supervisor after working at the Facility for approximately four (4) months. And
before being promoted, Lang turned the promotion down twice. Lang was promoted so
quickly because the Facility was ?short sta?ed.? All of the staff at the Facility in

 

December 2016 had worked there for less than one (1) year and were considered to be
?short~terrn?.

With respect to staf?ng, the Juvenile Detention Standards require minimum
of two direct-care sta? . .. on duty at all times in the facility [and that] [j]uveniles in
detention shall be supervised at all times.? OAC According to Ms.
Winkle, on Friday and Saturday nights, she is the only direct care staff member at the
Facility. And the Facility relies upon maintenance personnel to ?check on? the residents.

The lack of adequate and competent staff was a moving force behind Billy suffering and
death.

Other Disturbing Evidence of an Unconstitutional Custom Unfortunately, though
unsurprisingly, it appears that the reckless neglect of Billy was not an isolated incident.
OCA uncovered evidence that other young residents were mistreated at the Facility and
that the Facility lacked basic equipment necessary to safely care for the juvenile
population. For instance, as OCA found, unknown male resident was left
unsupervised, by Miller, with access to a shaving razor for approximately four minutes?
and ?[v]ideo showed the resident picking up the razor and rubbing his thumb over the
blades.? OCA further found that MJDC staff failed to check on other residents for
upwards of one hour and forty-?ve minutes, despite falsely documenting that such checks
took place every ?fteen minutes. A staff member verbally abused yet another juvenile
referring to him as a ?retard?. Lastly, OCA found that the Facility was not equipped with
a ?cut down? tool for hanging victims or a de?brillator.

3. Legal Authority

The purpose of this letter is to comply with the provisions of 51 Okla. Stat. ?151 et
seq, requiring citizens to notify the State or political subdivision of any intent to sue or
prosecute a tort claim against that political subdivision. At this time, I would like to give
notice that Claimant intends to pursue: (A) tort claims including, inter alia, claims for
negligence and intentional in?iction of emotional distress; and/or (B) claims for
violations of the Oklahoma Constitution (Article II 7 and 9) -- against the above?
addressed parties. Claimant seeks compensation at the maximum amount allowed under
Oklahoma law.

Also, though Claimant is not required to notify respondents of her federal claims,
for informational purposes only, Claimant hereby noti?es the above parties that she plans
to bring claims under the United States Constitution, pursuant to 42 U.S.C. 1983.

?[C]laims based on a jail suicide are considered and treated as claims based on the
failure of jail of?cials to provide medical care for those in their custody.? Barrie v.
Grand Cty., 119 F.3d 862, 866 (10th Cir.l997).
Under the Eighth Amendment, prisoners possess a constitutional right to medical care,
and that right is violated when doctors or of?cials are deliberately indifferent to a
prisoner?s serious medical needs. See, Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). Pretrial detainees who have not been convicted of a crime, have a constitutional

 

right to medical and care under the Due Process Clause of the Fourteenth
Amendment with the standard for deliberate indifference at least as protective as for
convicted prisoners. See Bell v. Wol?sh, 441 U.S. 520, 545 (1979); Martin v. Bd. of
County Com?rs of County of Pueblo, 909 F.2d 402, 406 (10th Cir. 1990).

?Deliberate indifference involves both an objective and subjective component.?
Olsen 12. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002) (quoting Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)) (internal quotation marks omitted). To
satisfy the objective component, ?the alleged deprivation must be ?suf?ciently serious? to
constitute a deprivation of constitutional dimension.? Self v. Cram, 439 F.3d 1227, 1230
(10th Cir. 2006). The subjective component requires evidence that the of?cial ?knows of
and disregards an excessive risk to inmate health or safety.? Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005). A civil rights defendant is deliberately indifferent Where he ?has
knowledge of a substantial risk of serious harm to inmates . . . [and] fails to take
reasonable steps to alleviate that risk.? afoya v. Salazar, 516 F.3d 912, 916 (10th Cir.
2008)

?Because it is dif?cult, if not impossible, to prove another person?s actual state of
mind, whether an official had knowledge may be inferred from circumstantial evidence.?
DeSpain v. Upho?f 264 F.3d 965, 975 (10th Cir. 2001). For instance, ?the existence of
an obvious risk to health or safety may indicate awareness of the risk.? Rife v. Oklahoma
Dep?t of Pub. Safety, 854 .3d 637, 647 (10th Cir. 2017), cert. denied sub nom. Dale v.
Rife, No. 17?310, 2017 WL 3731208 (U.S. Oct. 16, 2017), and cert. denied sub
nom. Jefferson v. Rife, No. 17?314, 2017 WL 3731324 (U.S. Oct. 16, 2017) (citing
Farmer v. Brennan, 511 U.S. 825, 842 (1994)). does not matter whether the risk
comes from a single source or multiple sources, any more than it matters whether a
prisoner faces an excessive risk for reasons personal to him or because all prisoners in
his situation face such a risk. Farmer, 511 U.S. at 843.

The Tenth Circuit recognizes two types of conduct constituting deliberate
indifference in the corrections medical context. See Sealock, 218 F.3d at 1211. ?First, a
medical professional may fail to treat a serious medical condition The second
type of deliberate indifference occurs when prison o?icials prevent an inmate from
receiving treatment or deny him access to medical personnel capable of evaluating the
need for treatment.? Id. (emphasis added). A non-medical professional who serves
?solely as a gatekeeper for other medical personnel capable of treating the condition?
may be held liable under the deliberate indifference standard if she ?delays or refuses to
fulfill that gatekeeper role.? Id. See also Blackmon v. Sutton, 734 F.3d 1237, 1245 (10th
Cir. 2013).

Here, applying these legal standards, the evidence establishes that MJDC staff was
deliberately indifferent to Billy?s serious medical and mental health needs. In addition,
there is suf?cient evidence of an unconstitutional policy or custom such that the County
and/or MCCOYS may be held liable under a municipal liability theory. See, e. g, Monell
v. New York City Dept. of Social Servs., 436 U.S. 658 (1977); Ed. oanty. Comm'rs of
Bryan Cnty., Okl. 12. Brown, 520 U.S. 397, 403 (1997); Bryson v. City of Oklahoma City,

 

627 F.3d 784, 788 (10th Cir. 2010); Dubbs 12. Head Start, Inc, 336 F.3d 1194, 1216 (10th
Cir. 2003) (?Although the Supreme Court?s interpretation of 1983 in Monet! applied to
municipal governments and not to private entities acting under color of state law, case
law from [the Tenth Circuit] and other circuits has extended the Monet! doctrine to
private 59 1983 defendants. (emphasis added).

Also, please be advised that an attorney's lien is claimed in this matter and any
further correspondence should take place between this of?ce and yourself and/or your
attorney(s). Please provide copies of any documents, materials, photographs, video and
audio you may have in your ?le regarding this matter.

Thank you for your attention to this matter. If you have any questions, please do

not hesitate to contact me. Thank you.

Sincerely,

mam

Daniel Smolen

cc: Robbie Burke

701 8. Cincinnati Ave. Tulsa. OK 74  i9 P: 9 8.585.266? i3: 9 8.5852669