Controversial jail sign becomes part of lawsuit against county

A sign reading “If you can talk, then you obviously can (expletive) breathe” briefly displayed in the NaphCare medical section of the Montgomery County Jail is a disputed part of a pending lawsuit against jail personnel.

Attorneys representing Montgomery County argued in Dayton’s U.S. District Court documents that the sign — which they claim was displayed for about 11 days in October 2018 — is not pertinent to the lawsuit brought by Jeffrey Day.

Day sued the county after he was in the Montgomery County Jail for five days without treatment for a fractured pelvis requiring emergency surgery in late 2015 — nearly three years before the sign appeared.

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The case against the county, jail health care provider NaphCare, Inc. and former EMT Jack Saunders is scheduled for a July 8 trial in front of U.S. District Court Judge Thomas Rose.

“The exhibit is entirely irrelevant to any issue in this case, was created or produced years after the incident(s) in this case, is highly inflammatory and is unfairly prejudicial to these defendants,” county attorneys wrote. “For these reasons, the exhibit should be excluded from the trial of this matter.”

Rose in February ruled a picture of the sign can remain part of the evidence. County attorneys have urged Rose to reconsider.

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Day’s attorney, who has brought and settled other lawsuits against the jail, said the sign personifies the attitude of those dealing with inmates. Day’s claims include deliberate indifference to a serious medical need and medical negligence.

“I think it is demonstrative of their callous indifference of people’s medical needs in the jail,” attorney Douglas Brannon said. “No matter how in distress they may be, there’s a general unwillingness to provide needed medical care to them.”

A sheriff’s office spokeswoman said Sheriff Rob Streck and Jail Major Jeremy Roy were unable to comment due it relating to a pending lawsuit.

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The county has paid out settlements to a handful of the 15 or so former inmates who have sued in the past few years, including a reported $3.5 million family of Robert Richardson.

Richardson died in the jail in 2012 after he was placed face down in handcuffs during a medical emergency and held there for 22 minutes. NaphCare settled their part of that suit for $500,000.

“In the context of the Richardson case,” Brannon said, “for them to put that up as if it’s a joke or laughing matter when somebody made the same claim that they couldn’t breathe and ultimately died resulting in a $4 million settlement against the county (and NaphCare), we don’t think that’s very funny.”

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Saunders, who was employed by NaphCare from April 5, 2010, until Oct. 4, 2017, said in a deposition that he never saw the sign. Saunders evaluated Day on Nov. 27, 2015.

A sheriff’s office investigation found that a different ex-NaphCare employee took the photo of the sign. During a deposition, that former employee asserted her Fifth Amendment rights.

The county settled other lawsuits for hundreds of thousands of dollars and recently agreed to settle with Joseph Guglielmo, a homeless veteran who suffered brain damage after he said his head was slammed into a concrete wall.

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The official settlement amount is not yet available, but an expert estimated Guglielmo’s life care cost at about $5.3 million.

Sasha Garvin died in the jail two years ago of an impacted bowel after complaining of “10 out of 10” pain.

Of the jail sign, Brannon said, “we think it’s probative and relevant to the claims that we’ve made in the Jeff Day case and claims that we’re making in the Sasha Garvin case.”

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