The Eighth Amendment to the U.S. Constitution is direct and clear:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
When Nathan Kennedy was taken into custody in the North Central Regional Jail, he was caged, pepper-sprayed without proper decontamination, placed in a spit mask, physically assaulted, tased, restrained, and ultimately secured in a restraint chair. That is where he became unresponsive and died. He was in custody for a total of three hours.
That is the very definition of “cruel and unusual punishment.”
It is also why the state of West Virginia settled with the family for $700,000. This wrongful death action was brought by Jesse Forbes of Forbes Law Offices. Up to this point, families and inmates have been able to hold the state and correctional institutions liable for “deliberate indifference.” Now, that ability to hold these institutions accountable could be in jeopardy.
The West Virginia Division of Corrections and Rehabilitation is asking the West Virginia Supreme Court of Appeals to throw out the deliberate indifference doctrine.
If the state Supreme Court sides with the Division of Corrections, it will cut off a viable path for accountability.
“So, what the state is trying to say is, ‘we’re not responsible. We can’t be held responsible for anything that happens in our facility. People are tortured. People’s medical needs are ignored. You can’t come hold us accountable. Go sue the individual guard,’” attorney Jesse Forbes told the Mountain State Spotlight.
What Is Deliberate Indifference?
Everyone can accept the fact that jails are not meant to be four-star hotel accommodations, but that doesn’t mean inmates should be abused and neglected. When a jail or prison knows an inmate has a medical condition or is otherwise at risk, they can’t disregard that situation. That is known as deliberate indifference and is considered “cruel and unusual punishment.” That is not just a theory. It is precedent in West Virginia.
In 2022, Forbes and fellow attorney Dante DiTrapano won a similar case against the West Virginia Division of Corrections and Rehabilitation (WVDCR). In that case, an inmate died at Huttonsville Prison after correctional officers ignored his illness.
These aren’t just isolated cases. According to a study conducted by Reuters, West Virginia had the deadliest jail system, outpacing the national average death rate.
Forbes estimates that, along with DiTrapano, they have settled around 30 cases against the West Virginia Division of Corrections and Rehabilitation. There are also active in another 25 pending cases.
The Counterargument
Counsel for the WVDCR presented a counterargument that there is no cause of action under state law for deliberate indifference. According to Natalie Schafer, one of the attorneys representing WVDCR, allowing these cases to move forward would circumvent the West Virginia legislature, which has not adopted a state version of the federal statute that allows plaintiffs to seek damages against their state or local government, as found in Section 1983 of federal statute.
Jesse Forbes counters that argument by saying the state doesn’t need its own version of Section 1983.
“Many of these date back to before we were even a country. This is the way we hold people accountable in our system of justice,” Forbes told 13 News. “And it’s frankly shocking that the state would come up here after they’ve paid out millions of dollars in settlements.
They’ve tried these cases. They’ve lost these cases for decades, and now they want to come out and they want a ‘Get out of liability free card’ from the West Virginia Supreme Court.”
How a Charleston Wrongful Death Attorney Can Help Your Family
When an inmate’s health concerns are ignored, it can often lead to death. No matter why someone is incarcerated, there is no excuse for deliberate indifference. If your family is dealing with this type of trauma, you must contact an experienced wrongful death attorney right away. It’s not just about filing a claim to meet the state’s statute of limitations. You have to move swiftly to preserve evidence.
Because the legal team at the Forbes Law Offices has handled dozens of inmate claims, we understand how crucial evidence gathering is to proving a claim. The jail may control security footage, medical records, staff logs, and incident reports. Those must be preserved immediately to prevent “accidental” deletion.
Multiple witnesses may also be involved in the incident. Any guards, drivers, or medical staff member who came in contact with the inmate should be questioned before their memories fade.
When we take on a claim involving inmate abuse, we follow an established protocol. We want to help families find accountability and justice. That support begins with a free case evaluation. Call to schedule your talk today, and let’s find out together what should happen next.
