Arkansas Panel Rules Jailers Can Be Sued as Individuals

A federal appeals panel on Aug. 20 upheld a ruling that jailers in Garland County, Ark., can be sued personally for allegedly ignoring a suspected intoxicated driver who didn’t move for hours in his cell and suffered severe brain damage.

The 8th U.S. Circuit Court of Appeals upheld a federal judge’s decision to allow the guardian of Steven McFarland to continue with a lawsuit against the sheriff’s department and individuals who decided against taking McFarland to a hospital.

McFarland “sustained severe brain injuries, stemming from airway blockage,” the opinion said.

The three-judge panel ruled it is appropriate to decide at trial whether each jailer understood McFarland’s medical need but took no action. Six jailers appealed U.S. District Judge Robert T. Dawson’s denial of qualified immunity, which is commonly granted to public servants who are sued for on-duty actions.

McFarland was arrested by an Arkansas State Police trooper early on Feb. 13, 2007, and taken to the Garland County Jail in Hot Springs. A breath test showed McFarland hadn’t been drinking, but a urine test was positive for several drugs. Also, McFarland told the jail’s drug recognition expert he’d taken the sleep aid Ambien, pain medicine hydrocodone along with seroquel and depakote. Seroquel treats mental illness, and depakote is used to treat seizures.

The ruling says McFarland also had a prescription bottle from the day before his arrest for 90 tablets of chlorzoxazone, a muscle relaxant, with 21 pills already gone. The evaluation of McFarland ended shortly before noon and noted his coordination was poor, his speech slurred, his eyelids were droopy and his face was flushed.

The jail supervisor, Lt. Judy Ann McMurrian, spoke with another jailer, Sgt. Ronald Radley, about taking McFarland to a hospital. Radley suggested first consulting jail practical nurse Tommy L. Harmon.

The ruling says Harmon examined McFarland and concluded it appeared he was “sleeping off alcohol” and didn’t have to go to the hospital. Two other deputies were present for the examination but didn’t tell Harmon that McFarland had taken a variety of drugs.

The opinion notes that under Arkansas law, a practical nurse performs duties that “do not require the substantial specialized skill judgment and knowledge required in professional nursing.” A practical nurse is to be supervised by a qualified professional.

The opinion says Harmon’s actions regarding McFarland raised “an inference of recklessness, if not incompetence.”

McFarland was put into a holding cell at 12:30 p.m., and video shows he moved only one time over the following five hours.

At about 5 p.m., another person was put into the cell with McFarland. The person summoned deputies about a half hour later because it appeared McFarland had stopped breathing. Among those responding was Sgt. Dan Ansley, who, though trained in CPR, only shook McFarland to try to wake him until EMTs arrived. Ansley said he’d found McFarland had a faint pulse, which was why he didn’t attempt CPR.

Deputies John T. Dodge and J.D. Henry are also included in the ruling and are exposed to being sued personally.

County attorney Ralph Ohm said he was surprised by the ruling.

“I felt like the (appeals) court would reverse the decision as far as the officers themselves are concerned. I always felt that Nurse Harmon would have to defend his actions,” Ohm said.

Ohm noted that the ruling simply said what happened to McFarland would have to be sorted out in a trial.

“They did not find that the plaintiff is entitled to a verdict, just that we’re going to have to take this case to a jury,” he said. “I guess we’ll end up trying it.”