Corruption in Massachusetts

01/12/2018 02:12 am ET

Since 1993 many Massachusetts residents have been horrified and dismayed to learn that the Commonwealth of Massachusetts could simply wash its hands of any financial liability in a case involving mentally ill inpatient Jason Davis. It is a sad and sordid tale of woe both in and out of the courts and the within the Massachusetts legislature as well. It highlights a broken system where States simply have no accountability to anybody even in the aftermath of their own concededly egregious conduct.

On August 12, 1993 Jason Davis was an acutely mentally ill inpatient housed within a locked unit at a Massachusetts State operated mental health facility. He was then 28 years old and had suffered from debilitating psychiatric disorders since his early teens. On August 12, 1993 he was savagely beaten bloody by one Mental Health Care Worker (Philip Bragg) while several other Mental Health Care Workers, including Paul Rennie, pinned him to the floor to perpetuate the beating. Philip Bragg and Paul Rennie were both convicted violent felons at hire which the State of Massachusetts knew. Both Rennie and Bragg were hired under a written hiring policy which allowed convicted violent felons to be hired in direct patient care capacities. Mr. Bragg had shot a young boy in the eye with a gun and was indicted for attempted murder. He pleaded guilty to a lesser charge and was incarcerated before being hired by the State. Paul Rennie pleaded guilty to two counts of armed robbery; one with a gun and another with a metal pipe. Both Rennie and Bragg were clearly unfit to care for anybody, much less a mentally ill inpatient, given their proclivity for violence and lack of patience. Charge Nurse Joyce Weigers, who witnessed the beating, looked on and encouraged it. In the aftermath of the beating she altered medical records in an attempt at a coverup. A Davis case defendant, Nicholas Tassone, testified that Jason Davis looked like "a fighter looks after they get out of the ring, how sometimes they get cut on their eye, and they have blood dripping down their face." He also observed a “puddle of blood” beside Davis’ head. The Charge Nurse told Davis, after the beating and as recounted by a Federal Court of Appeals, that "[t]his is what you get when you act – this is what you get when you act like this." Jason Davis testified about the punching: “It was over and over and over and over again. It was like it would never stop. And then I was calling for help and nobody was stopping them and they kept hitting me. I felt the blood; it was, you know, it was coming down my face.”. His psychiatrist testified that “Davis was ‘horrified’ by the event because ‘[h]e thought he was going to die.’” Davis suffered acute psychiatric injuries during the gruesome assault. Reference is made to the Davis website:

Jason Davis commenced a Federal Civil Rights case in Boston Federal Court in 1996. More than 200 exhibits were introduced at trial a good number of which demonstrated that there wasan ongoing wave of violence, at the facility where Jason Davis was placed, which was acute, documented and well known to all who cared to know. Then Massachusetts Attorney General Scott Harshbarger defended six defendants including Paul Rennie, the Charge Nurse and four other employees who pinned Jason Davis to the floor so he could be beaten. Shortly before the 1998 trial an Assistant Attorney General, acting on behalf of Scott Harshbarger, informed Davis’ attorneys that “Scott [Harshbarger] wanted me to tell you that he will pay the entire jury verdict if you win but that he will never have to pay you because you will never win.”A month long Federal Civil Rights trial in Boston Federal Court ensued. Jason Davis won a jury verdict which now stands at approximately 2.3 million dollars. The Commonwealth, through its Attorney General, appealed to the First Circuit and then filed a Writ of Certiorari with the Supreme Court. The central legal argument espoused by the Massachusetts in all three courts? It is permissible for State employees to stand idly by while their fellow employees beat a mentally ill inpatient bloody. The Commonwealth lost in all three Federal Courts. The 2.3 million dollar judgment remains unpaid by the Commonwealth. Why?

The answer is a simple one: Will v. Michigan Department of State Police, 491 U.S. 58 (1989). The holdings in Will are some of the best kept constitutional secrets in America. Nearly nobody knows, outside of a small pocket of lawyers and judges, that States simply cannot be held financially liable for any civil rights claim no matter how egregious their conduct. The Jason Davis case is the literal poster child for why it is that the Will doctrine is incredibly harsh and why it produces immediate danger to those kept in State custody.

In the Davis case the State placed Jason Davis in an institution where an historical wave of violence was acute, ongoing, documented and well known. It also provided care takers to him which included convicted violent felons hired pursuant to a written hiring policy. When expected and, indeed, statistically probable harm befell Jason Davis the State, relying as it could on Will, told him to take the matter up with the convicted violent felons who brutalized him insofar as it was washing its hands of the matter. The inequities which the Will holdings perpetuate are numerous but none is more vexatious than the hollowness which it brings to many of our constitutional provisions. The Commonwealth of Massachusetts was itself charged with the obligation to keep Jason Davis safe under the Constitution given the dictate of Youngberg v. Romeo, 457 U.S. 307 (1982). Yet when it failed miserably in this regard it informed Jason Davis and his family to take the matter up with the violent felons who attacked him. These violent felons were not, however, charged with insuring his safety; this was the State’s obligation under the Constitution.

The Commonwealth of Massachusetts turned a “blind eye” and a “deaf ear” to the danger which two convicted violent felons posed to Jason Davis when it hired them. When harm befell Jason Davis the Commonwealth, after losing a trial and two appeals, withdrew from the case and never paid the judgment because it could do so under Will. The brutalization of Jason Davis, while he was an involuntarily committed inpatient in a State mental health facility, clearly resulted from the rule of law articulated in the Willcase and the culture which it perpetuated. Thousands more have fallen prey to this same rule of law since 1989. There can be no meaningful improvement in our State institutional conditions, policies and procedures when nobody is held accountable. At bottom, States get off “Scott free” for their unconstitutional conduct in the context of civil rights monetary damage claims as the Davis case proves. The fix, however, is any easy one: with the addition of but a few words to the Federal Civil Rights Statute the gruesome result in the Davis case would never occur again. States simply could be made permissible parties in cases where they have done wrong. States should not get off “scott free” anymore. It hurts the safety of all mentally ill and other institutionalized people in State care throughout the Nation. Venerable Massachusetts State Representative John Rogers said it best:“The facts are uncontested. They [Massachusetts Department of Mental Health] hired, failed to train and failed to supervise these workers and to allow the State to walk away is just wrong.” The Will rule of law allows the State to do just that.

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