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Sept. 19, 2024 | By: Rudi Keller - Missouri Independent
By Rudi Keller - Missouri Independent
Missouri corrections officers drenched an inmate with pepper spray and ignored his pleas for help for four hours, responding only when his screaming stopped as he died in the Tipton Correctional Center, a federal lawsuit filed this month alleges.
The events that led to Brandon Pace’s death on April 7, 2023, began when correctional officers intervened in an altercation between Pace and another inmate, according to the lawsuit filed in the United States District Court for the Western District of Missouri.
Both men were taken into administrative segregation in restraints.
When Pace refused to give up what corrections officers believed to be methamphetamine, the lawsuit states, they put him in a holding cell and ordered him to strip for a search. When he refused, the officers called the Correctional Emergency Response Team, a unit used in cases where use of force may be required to deal with an inmate who will not comply with officer instructions.
An officer from the team used a fire extinguisher-sized can of pepper spray, a type usually used for riot situations, to subdue Pace.
The officers “took the MK-46 canister of OC and sprayed Mr. Pace with an excessive dose of the chemical agent at close range while Mr. Pace was in a confined space and, based upon information and belief, Mr. Pace’s hands were restrained behind his back and his legs shackled,” the lawsuit filed on behalf of Pace’s mother, Tammy Reed, states. “Mr. Pace began screaming in pain, gasping for air, and saying ‘I can’t breathe.’ He kept saying, ‘Help me, I can’t breathe,’ over and over.”
The lawsuit names former department Director Anne Precythe, current acting director Trevor Foley, three deputy directors, the department’s general counsel, former Tipton warden Brock Van Loo, medical care contractor Centurion Health, 12 corrections officers and a nurse as defendants.
The 11 counts in the lawsuit seek damages for wrongful death, civil rights violations and Missouri Sunshine Law violations for refusing to turn over any of the records, including video recordings, of the events prior to Pace’s death.
The lawsuit relies on statements from other men, held in nearby cells, for many of the allegations.
“The Department of Corrections is duty-bound to protect those individuals like Brandon Pace, who are in state custody,” said Lynn Ellenberger, one of Reed’s attorneys . “They’re obligated to provide for his well being and for his care, and in this case, that was not done.”
The department does not comment on pending litigation, Foley said last week.
The lawsuit is the latest in a string of cases filed this year related to inmate deaths. Despite a one-third reduction in the number of men and women being held by the department over the past decade, inmate deaths are at record levels.
In June, four former correctional officers were charged with assault and murder and a fifth was charged with involuntary manslaughter for the December death of Othel Moore while he was incarcerated at the Jefferson City Correctional Center.
Moore, 38, was pepper-sprayed in the face multiple times, had his face improperly covered by a hood that blocked his nose and mouth and was left unattended in a cell for more than 30 minutes, according to documents filed in the criminal case.
The charges against one of the corrections officers have been dropped and the remaining defendants were charged with assault and second-degree murder in September by the Cole County Grand Jury. An arraignment is scheduled for Oct. 16.
The criminal charges came after four officers were fired in March and the warden at the Jefferson City prison was fired in June.
“We take seriously our responsibility for creating the safest environment possible and will not tolerate behaviors or conditions that endanger the wellbeing of Missourians working or living in our facilities,” the corrections department said in a statement issued after the charges were filed. “The department has begun implementing body-worn cameras in restrictive-housing units at maximum-security facilities, starting with Jefferson City Correctional Center, to bolster both security and accountability.”
The family of Othel Moore began publicly agitating for release of records, including video showing the actions of the officers, in the weeks following his Dec. 8 death. The case was investigated by the Cole County Sheriff’s office.
No outside agency has investigated Pace’s death, said Tom Porto, an attorney working with Pace’s family.
“That’s not going to be done until the facts are brought to light,” Porto said. “There’s not going to be an investigation from the police, from the prosecutor’s office, from the Attorney General’s Office, until you smack them with the facts right in their face.”
Tony Wheatley, Moniteau County sheriff, said in an interview Wednesday that he has not received a complaint from the family about Pace’s death and he has not been asked to investigate by the department. His office has the necessary resources and no conflicts that would prevent him from investigating.
“What really upsets me is, and this happens all the time, is everybody wants to blame the local sheriff’s office because they didn’t do anything,” Wheatley said.
The only way he can act is if he gets a call, Wheatley said.
“I have not once heard from the family, I have not once heard from the state, I have not heard from anybody on this,” Wheatley said.
If Reed or her attorneys send him the complaint, Wheatley said, he will read it and evaluate whether it warrants further action.
The mother of another man who died in custody, Willa Hynes, won a $60,000 judgment against the department for withholding records in the death of her son Jahi, who died April 4, 2021, at the Southeast Missouri Correctional Center in Charleston.
Jahi Hynes, who was 27, was serving a 13-year sentence for first degree robbery when he hanged himself with a bedsheet while in solitary confinement.
On April 1, Willa Hynes filed a wrongful death lawsuit accusing the department, Centurion Health and 11 corrections employees of negligence in allowing her son to possess the bedsheet and failing to conduct required checks on inmates in administrative segregation.
A hearing is set for Monday in Charleston on a motion to dismiss the lawsuit.
Pace’s death was one of 134 among people being held by the Department of Corrections in 2023. This year, with 96 deaths through Aug. 31, could exceed the record 136 deaths in 2022.
Only eight of the inmate deaths over the three years were executions of men sentenced for capital crimes.
“My main concern being an organizer and an advocate is to make sure this information is publicized,” said Michelle Smith, director of the Missouri Justice Coalition, who compiles data on inmate deaths.
Smith, who in January led a memorial service for the deceased inmates at the Missouri Capitol Building, said most elected officials have yet to take the problem seriously.
“They think that I and other people are just being hyperbolic and exaggerating the issues at the Department of Corrections,” she said. “We need legislation, we need transparency, we need accountability at DOC.”
In his opinion in the Hynes case alleging Sunshine Law violations, Western District Court of Appeals Judge Edward Ardini wrote that the department deliberately withheld public records, including video recordings and a death investigation report, to hinder her wrongful death lawsuit.
The department argued unsuccessfully that the material was inmate medical records protected from disclosure even to the family of an inmate.
The same violations are occurring in the case of Pace, his mother’s lawsuit alleges. Reed, who is a former corrections officer, asked for all the video from that day that shows officers with her son. The video recordings being withheld include one recorded by a member of the emergency response team of the pepper spray being used on Pace.
Pace was autopsied two weeks after his death by the Boone/Callaway Medical Examiner’s Office and the toxicology tests showed methamphetamine and Narcan, used by officers as they tried to revive him. The report says Van Loo told the medical examiner’s office he investigated Pace’s death personally and that video showed Pace swallowing the methamphetamine.
“Plaintiff has been denied all video evidence of the events that occurred that day – including the video defendant Van Loo says exists – despite lawful requests for such evidence,” the lawsuit states.
The autopsy report lists the cause of death as accidental due to methamphetamine intoxication, the court filing states.
The lawsuit accuses Van Loo of lying to the medical examiner’s office by stating Pace was taken to a medical unit after he was seen ingesting the unknown substance, and that there was an emergency response in an attempt to revive him when he stopped breathing while in the unit.
Based on statements of other inmates in nearby cells, the lawsuit alleges “other inmates at Tipton were charged with spurious infractions because they said things such as ‘Rest in Pace’ or otherwise referred to Mr. Pace’s death,” the lawsuit states. “The correctional officer defendants did this to instill fear in the inmates to stop them from speaking about the brutality and callousness that led to Mr. Pace’s death.”
In the recitation of events after Pace was doused with pepper spray, the lawsuit alleges the corrections officers joked about his agony. When corrections officer Billie Webb told another officer, Randy Witt, that Pace was “saying he can’t breathe,” Witt allegedly responded, “I don’t give a f**k.”
A nurse “talked and laughed” with another corrections officer stationed outside the cell where Pace was held but never entered the cell to check on Pace. She only did so at the urging of inmates after Pace had stopped crying out for help.
“Defendant (Terry) Payne said to other correctional officers present words to the effect of, ‘make sure you get the restraints off of him before the ambulance arrives,’ in an attempt to cover-up that Mr. Pace was restrained when he suffered and died,” the lawsuit states.
The degrading comments about Pace by corrections officers did not stop when he died, the lawsuit alleges.
“An inmate in administrative segregation said to Defendant (Earl) Roach, ‘they killed that guy,” referring to Brandon Pace,” the filing states. “Defendant Roach responded, ‘we didn’t kill him. He was kinda like a dog that ran out on the street, and we were just the car that hit him.”
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