Attempted Escapee May Have Case Over Beating

     PITTSBURGH (CN) - Allegheny County Jail officials may be liable for allegedly beating a would-be escapee so viciously that the inmate soiled himself, a federal judge ruled.
     Gary Barbour says jail officials searched for him for three hours during his attempted escape on April 6, 2010, and eventually found him in the ventilation system.
     Though Barbour allegedly did not resist capture, the officials had allegedly decided beforehand that they would "physically batter him as punishment."
     Sgt. August Smarra allegedly removed Barbour from the duct and threw him through an opening in the ventilation panel, causing him to drop three feet to the concrete floor in a mechanical room.
     Smarra then pushed Barbour into the walls and bounced him off nearby equipment, according to the complaint. Barbour says he eventually fell atop an iron doorframe, and that Smarra then kicked him in the back. The kick allegedly caused Barbour to soil himself.
     After other guards forced Barbour to his knees, Major James Donis told the inmate, "I'm your worst nightmare," and then began hitting him in the face, according to the complaint.
     Soon, all of the guards took turns punching him in the face, landing at least 40 punches and ultimately breaking Barbour's nose, the complaint states. Barbour says one guard was recording the incident on a camera.
     As the guards marched Barbour through the jail, one allegedly repeatedly kicked him in the groin from behind. After shoving Barbour into walls and doorframes for some of the walk, the guards brought him out of the view of jail surveillance cameras and kneed him in the face, according to the complaint.
     Barbour says the jail sent him to the hospital, but not before changing his uniform to destroy evidence of the assault such as bootprints, feces and blood.
     Barbour claims that the alleged assault left him with permanent nerve damage that will likely keep him from being able to return to work in construction upon release.
     Chief U.S. Magistrate Judge Lisa Pupo Lenihan refused to dismiss the claims against the individual guards and the county.
     Though the defendants say that Barbour does not have standing as a pretrial detainee under the Fourth and Eighth Amendments, the judge refused to limit claims to just the 14th Amendment at this juncture.
     "Discovery will further develop whether plaintiff was a pretrial detainee or inmate at the time the alleged events occurred," Lenihan wrote. "At this stage, Plaintiff has demonstrated a good-faith basis that either is possible. ... However, should discovery reveal that plaintiff was a pretrial detainee at all material times, his claims will be governed by the Fourteenth Amendment."
     The judge also rejected Allegheny County's argument that Barbour "failed to identify a policy or custom which caused his injuries."
     Barbour referred to specific events in 2007, 2008, 2009 and 2010 "whereby ACJ inmates sustained injuries from assaults or excessive use of force by ACJ employees," the judge found.
     "Specifically, he alleges that there was an existing policy for the use of force at the ACJ but that it was ineffective and not enforced," the 15-page ruling states. "He further alleges that, out of blatant disregard for the use of force policy and because it was not enforced, the ACJ had a custom of tolerating excessive force and permitting and encouraging employees to abuse inmates and detainees. Additionally, he alleges that ACJ supervisors were aware of these customs and not only acquiesced in them but supported them. Finally, he alleges that the ACJ was aware of the numerous prior incidents of constitutional violations and it was deliberately indifferent to the substantial risk of unnecessary harm to its inmates by failing to take appropriate responsive action."
     The judge refused to dismiss the 14th Amendment counts against individual defendants who claimed a "lack of personal involvement in any wrongdoing." She also upheld the claims of assault and battery against the guards' purported immunity.
     "While discovery may reveal more detail about how each individual defendant was involved and might disclose that summary judgment in favor of certain defendants is appropriate, the court is satisfied that Plaintiff has alleged sufficient facts demonstrating personal involvement against all the individual defendants," Lenihan wrote.
     A local agency employee "may be stripped of his immunity when he engages in conduct that is found to constitute 'a crime, actual fraud or willful misconduct,'" the decision also states.