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February 23, 1999

Plaintiffs Jack and Phyllis Wilson bring this action arising out of the death of their son Kevin Wilson, who died of a drug overdose shortly after being released from the City of Chanute, Kansas, police custody on March 7, 1996. On behalf of their son, plaintiffs assert claims under the Fourth and Fourteenth Amendments, and under state law. The case is before the court on the following motions:

(1) Defendants City of Chanute, John Rausch, Michael A. Benard, James R. Cotton, and Sam Budreau’s motion (Doc. 89) for summary judgment; and (2) Defendants Sheryl Beagley and the Board of County Commissioners of Neosho County’s motion (Doc. 91) for summary judgment.

Factual Background

The following facts are either uncontroverted or are based on evidence submitted with the summary judgment papers viewed in a light most favorable to the nonmoving party. Immaterial facts and facts not properly supported by the record are omitted.

On March 4, 1996, Kevin Wilson appeared in Neosho County, Kansas, District Court and pleaded guilty to a felony drug offense. A few days later, Wilson telephoned a friend, Deborah Shields, and asked her to receive a Federal Express package on his behalf. Suspicious of the package’s contents, Shields informed the Chanute Police Department of Kevin’s request and the police arranged to acquire the package from Shields. The package was inspected and the contents were analyzed at the Missouri Southern State College Regional Crime Laboratory. The results indicated that the substance in the package was cocaine.

At 1:30 p.m. on March 7, 1996, Chanute Police Officer Michael Benard arrested Wilson and took him to the Chanute police station. At that time, Wilson was verbal and communicative and was able to stand and walk without assistance. Both Benard and Detective John Rausch testified in their depositions that, after being taken to the police station to give a statement, Wilson verbally agreed to a search of his residence on the condition that they allow him to accompany them to his home.

At approximately 2:15 p.m., Rausch, Benard, and Wilson arrived at Wilson’s home and the officers searched the residence. Wilson indicated that he needed to use the bathroom and to take his Prozac. Rausch searched the bathroom prior to allowing Wilson to occupy it and found approximately thirty bottles of medicine. Rausch testified in his deposition that he checked to make sure that Wilson’s name was on each bottle and that he believed that all were legal prescription medications. He did not inventory the drugs or notice if any were narcotics. The officers allowed Wilson to be in the bathroom unattended. Rausch later told County Attorney Sheryl Beagley that Wilson had taken some medications while they were searching his house. No contraband nor any evidence was found during the search.

Benard and Rausch advised Wilson that he should prepare to be taken into custody. Wilson told Benard that he needed to take his maintenance medications with him. Rausch and Benard accompanied Wilson to the bathroom to get his medications but neither noticed how many bottles of medication Wilson put in his bag and no inventory was taken.

Benard, Rausch, and Wilson returned to the station at approximately 3:10 p.m. and Wilson continued to walk normally and to speak without slurring. Wilson was allowed to keep possession of his bag of medications on the trip back to the police station and he carried the bag into the station. Benard testified in his deposition that he stayed with Wilson in the police department booking area prior to the bond hearing, which was held the same afternoon, and Wilson responded to all of Benard’s questions.

During Wilson’s bond hearing, Wilson told Judge Timothy Brazil that he had taken only two Valium. Wilson denied that he had taken any other drugs or that he intended to harm himself. Upon further inquiry, however, Wilson divulged that the county hospital had given him some antibiotics and acyclovir (Zovirax) and that he took Prozac every day. Wilson kept possession of his bag of medications throughout the bond hearing.

During the hearing, Wilson appeared lethargic — swaying while he stood up and leaning against a table, with occasionally drooping eyelids and slightly slurred speech. Judge Brazil suggested that Wilson be examined and set Wilson’s bond at $10,000.00 cash or surety. Neither Beagley, Rausch, nor Benard requested that Wilson be released on his own recognizance.

Immediately upon Wilson’s return to the police station after the bond hearing, Barbara Laver, a records clerk at the police department, noticed Wilson’s sickly appearance and asked Rausch if she could call an ambulance. Without explanation, Rausch refused. After the bond hearing, Wilson called an acquaintance, James Goble, in Denver regarding bail money. Goble testified in his deposition that he was able to understand Wilson’s speech during the entire conversation. Laver testified in her deposition that, approximately fifteen minutes after Wilson returned from the hearing, he staggered to the drinking fountain, put pills in his mouth, and took a drink of water. Laver immediately told Rausch that Wilson had taken the pills and again suggested that they call an ambulance.

After the bond hearing, Benard kept track of Wilson until Wilson was released from custody. During that time, Benard continued to question Wilson regarding the number of Valium he had taken and Wilson finally admitted that he did not know how many pills he had taken, but that he had taken a handful of them. Rausch, a licensed emergency medical technician, was standing nearby during that conversation. Benard testified that he believed that he should obtain medical assistance for Wilson if his condition worsened. Benard knew that a drug overdose involved a serious risk of harm and might require immediate medical attention. Wilson’s condition deteriorated much more rapidly after the hearing. Wilson was drifting in and out of consciousness, was trying to go to sleep, and was “slush-mouthed.”

At approximately 4:00 p.m. after Benard told Rausch that Wilson admitted taking a handful of Valium, and asked if they should call an ambulance, Rausch telephoned the County Attorney’s Office. Rausch testified in his deposition that he called to suggest that Wilson be released on his own recognizance. At the time, Beagley was at the county law library taking the statement of a witness in another case. In Beagley’s absence, Lisa Black, an employee of the county attorney’s office, spoke with Rausch. At the same time, Phaedra Wade, Beagley’s secretary, contacted Beagley at the law library so that Black and Wade acted as intermediaries between Rausch and Beagley. Wade testified in her deposition that she overheard Black tell Rausch to call an ambulance or take Wilson to the hospital. Wade also testified in her deposition that it was Beagley’s suggestion to release Wilson on bond. Rausch testified that he and Beagley never discussed saving medical expenses by releasing Wilson, but William Edwards, a local attorney who was with Beagley in the library, testified in his deposition that Beagley told him that the police were trying to release Wilson to avoid medical expenses. Approximately five minutes later, Officer James Cotton arrived in the booking area and watched Wilson. Cotton observed that Wilson was unable to sit upright in his chair and that he had slurred speech. He testified that he believed Wilson was drunk.

As a result of Rausch’s call, Beagley directed Wade to prepare an own recognizance bond, fill out the conditions and the court date, and take it to the police station for Wilson’s signature. Beagley testified in her deposition that she instructed Wade to get Wilson’s signature before taking the bond form to Judge Brazil because the judge would not approve it without the defendant’s signature. Wade arrived at the police station at approximately 4:11 p.m. to get the bond form signed by Wilson. Wade described Wilson’s condition as pale and sweaty when she arrived at the police station. Wilson needed assistance.

to get out of a chair and to stand at the counter with Wade. Because Wilson was unable to sign the document without assistance, Wade helped him guide his hand. Wade was concerned that the signature was insufficient. Wade therefore waited for Wilson’s sister, Nan Lassman, to arrive and requested her signature also.

Benard testified in his deposition that no one suggested to him that he call an ambulance for Wilson. Benard called Lassman to request that she pick up Wilson and informed her that Wilson was being released on his own recognizance, that he was under the influence of Valium, and that he was unable to drive. At approximately 4:20 p.m., Lassman arrived at the police station to pick up Wilson. At that time, Benard told her that Wilson kept changing his answer to how many pills he had taken — two, then four, then a handful. Lassman testified that, when she arrived, Wilson was totally incoherent, he was unable to respond to her questions, and his eyes were rolled back. Lassman further testified that, at that time, Wilson was semi-conscious or unconscious. Lassman did not believe that Wilson needed immediate medical attention because she believed that the police would have taken care of him if he had. After the bond was signed by Wilson and Lassman, Cotton offered to assist Lassman in taking Wilson home. Benard then said to Wilson, “Come on, Kevin, it’s time to go home.”

Cotton, Lassman, and Wilson arrived at Wilson’s home about four minutes later. Cotton was a licensed EMT employed by Neosho County Hospital. Cotton helped Wilson into his house. Cotton testified that Wilson was conscious at the time. Bill Pennington, Wilson’s neighbor, however, witnessed the incident and testified in an affidavit that Wilson appeared unconscious when Cotton was helping him outside. Inside the house, Cotton placed Wilson on his back on the living room floor. After turning on the light, Cotton saw that Wilson’s mouth was full of emesis and immediately knew that Wilson had gone into full respiratory and cardiac arrest. Cotton called an ambulance and immediately began cardiopulmonary resuscitation. The ambulance arrived and took Wilson to the hospital, where he was pronounced dead.

That night after Wilson’s death, Kansas Bureau of Investigation agent Tom Williams found a handwritten note in the bathroom of Wilson’s home. The note indicated to whom Wilson wanted his property to go and stated, “This is no one’s fault I want NO MORE PAIN. Please Understand. I love you all.”

Dr. Erik Mitchell conducted the autopsy of Wilson on the night of his death. Dr. Mitchell reported that Wilson died of an acute drug overdose, and that Wilson’s system contained propoxyphene (Darvon), diazepam (Valium), loxapine (Loxatine), and fluoxetine (Prozac). Dr. Mitchell testified in his deposition that if Wilson had received medical care while he was still conscious or semi-conscious, he would have had a good chance of survival.

Defendants argue that there is insufficient evidence for a reasonable jury to conclude that Benard, Rausch, and Beagley conspired to deny Wilson his constitutional rights. The court disagrees. The evidence of communication between Benard and Rausch, and Rausch and Beagley is sufficient to create an inference that the three had agreed to deprive Wilson of his substantive due process rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 155, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (presence of officer and sequence of events that followed sufficient to infer conspiracy).

Accordingly, summary judgment is granted to Beagley with respect to the conspiracy claim, and denied to Benard and Rausch.

IT IS, THEREFORE, BY THE COURT ORDERED that defendants City of Chanute, Michael A. Benard, John Rausch, James R. Cotton, and Sam Budreau’s motion (Doc. 89) for summary judgment is granted with respect to plaintiffs’ Fourth Amendment claim against Michael Benard and John Rausch. The motion is denied in all other respects.