Appeals court: DOC officials can be sued

• Karen Barkes and her children sued over the Nov. 14%2C 2004 suicide of her husband%2C Christopher
• Barkes%27 case was featured as part of a 2005 News Journal investigation

A federal appeals court has ruled that two Delaware Department of Correction officials can be held responsible for the failure of a state medical contractor to properly screen inmates for mental health issues, leading to a suicide at Young Correctional Institution.

"The court holds that two of the most senior executives in the Delaware prison system must stand trial in the suicide of Christopher Barkes," wrote Circuit Court Judge Thomas M. Hardiman, in a lengthy dissent, arguing the majority was wrong to allow the case against former Delaware Department of Correction Commissioner Stan Taylor and former warden Raphael Williams to go forward.

The lawsuit was filed in 2006 by Karen Barkes and her children over the Nov. 14, 2004, suicide of her husband, Christopher, while in custody, less than 24 hours after he was locked up for a probation violation.

The Delaware Attorney General's Office, which represented the DOC officials, declined comment, saying they are reviewing the case and the state's options. Delaware can appeal the case to the full Third Circuit Court, or to the U.S. Supreme Court.

Attorney Jeffrey Martin, who represents the Barkes family, said his clients are pleased that after so many years the case is finally moving forward.

The 50-page, 2-1 decision, along with a 30-page dissent, was flagged by the court as "precedential" and Widener University School of Law Professor John Culhane said the ruling sets a new, clear standard for when a supervisor can be held responsible for the failures of subordinates.

Barkes' case was featured as part of a 2005 News Journal investigation of prison medical care that led to a federal civil rights investigation and settlement with the state that called for significant reforms. The settlement agreement and federal monitoring of the prison system ended in January 2013.

According to the majority opinion by Circuit Judge D. Michael Fisher, Christopher Barkes had a long history of substance abuse, mental illness and suicide attempts, including one during a previous incarceration at Howard R. Young, when he was brought to the prison for a probation violation on Nov. 13, 2004.

However, a nurse employed by First Correctional Medical – the company Delaware hired provide medical services in state prisons – passed the 37-year-old Barkes through a mental health screening without calling for any special observation or care, according to the ruling.

The nurse apparently did not check prison records or probation reports where Barkes was described as "a threat to himself," and relied almost entirely on a form that Barkes was given to fill out.

On that form, Barkes indicated he was not suicidal and denied any substance abuse issues. He did report a single 2003 suicide attempt, something Martin said by itself should have raised a red flag under the rules at the time.

Had Barkes been properly screened, he would have been placed in an observation cell where he would have been dressed in a special gown and checked every 15 minutes. If that had been done, Martin said, "this never would have happened."

The majority opinion held that Taylor and Williams could face potential liability as supervisors because both had been put on notice about the "deteriorating quality" of First Correctional Medical's care before the suicide.

Audits cited repeated deficiencies and on June 2004, according to meeting minutes, one DOC official described the company as "beyond the borderline of not being in compliance with the contract."

Williams and Taylor also admitted in deposition testimony that they were aware FCM was falling short of its obligations and that the company may have intentionally been keeping positions vacant to save money.

The department, however, didn't take any apparent action to terminate FCM's contact until May 2005, months after Barkes suicide, according to court papers.

In his dissent, Hardiman argued that Taylor and Williams not only had to display "deliberate indifference," but also had to be personally involved with the "misfeasance" to be held legally responsible.

Culhane said that since a 2009 ruling – where the U.S. Supreme Court held that a supervisor could not be held liable just because they were a supervisor – the legal standard for liability had been unclear. This ruling clarifies that the standard is deliberate indifference by a supervisor – which in this case is ignoring prisoner's rights, he said.

U.S. District Court Judge Joseph Farnan Jr. ordered a default judgment against FCM in 2008, but the company went into bankruptcy and the family was never able to collect any of the $850,000 awarded, according to Martin.

The lawsuit, seeking damages and compensation for Barkes' widow and two children, has now been going on so long that not only have Taylor and Williams since retired from the DOC, but the presiding judge, Farnan, has retired from the bench.

Martin said his clients have been left with a void in their lives and are looking forward to having their day in court. And despite so many years, and a federal investigation, "this is an issue that has not gone away, unfortunately," he said.

Contact Sean O'Sullivan at 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan