CHARLESTON – The West Virginia Division of Corrections and Rehabilitation has removed a lawsuit to federal court, arguing that the plaintiff's complaint "reveals a federal question."
Joseph Wood and an unknown and unnamed individual were also named as defendants in the suit.
WVDOCR argues that because Robin Bailey, as personal representative of the estate of Zachary A. Bailey, cited violations of the U.S. Constitution, it must be removed to federal court.
"In her complaint, plaintiff asserts theories of liability including, but not limited to: violations of the plaintiff's decedent's constitutional rights guaranteed under Article III, Sections 5, and 10 of the West Virginia Constitution (Complaint, 8); and, deprivation of plaintiff's decedent's "unconstitutional conditions and restrictions and deprivations of decedent's confinement and denial or neglect of basic and humane need for medical care and treatment" under 42 U.S.C. Section 1983," the notice of removal states.
Robin Bailey initially filed the lawsuit against the defendants in Kanawha Circuit Court before the removal. She alleged that her son, Zachary Bailey, who was a 26-year-old father of a 2-year-old, was arrested on July 8 and taken to Camden Clark Medical Center's Emergency Department in Parkersburg for clearance prior to incarceration.
Robin Bailey claims her son was taken to the hospital after complaining of lower back pain, pain in both of his knees and wrists from a motor vehicle accident that occurred the day before in which he was the restrained driver.
The hospital diagnosed him with a lumbar strain and his medical records noted that his urinalysis came back positive for amphetamines, methamphetamines and Ecstasy. He was then taken to Northern Central Regional Jail for booking.
Zachary Bailey was agitated and making incoherent statements while in the holding cell and, at some point, broke free from the holding cell when correctional officers entered the cell to restrain him, according to the suit.
Robin Bailey claims several correctional officers subdued him and one even laid down on top of him mirroring his position, while three others watched.
Zachary Bailey allegedly yelled and pleaded for the officer to get off of him because he was unable to breathe, but the officer smothered him until he stopped moving and his legs began turning blue, according to the suit.
Robin Bailey claims correctional officers and medical staff attempted life-saving measures, but Zachary Bailey was dead.
The plaintiff also claims her counsel requested security footage from the incident for four months before counsel was informed the camera in that particular area was inoperable.
Robin Bailey claims the defendants had a duty to keep inmates safe and failed to do so.
Robin Bailey is seeking compensatory damages with pre- and post-judgment interest. She is represented by Dante diTrapano, Alex McLaughlin and Benjamin Adams of Calwell Luce diTrapano; and William C. Forbes and W. Jesse Forbes of Forbes Law Offices.
U.S. District Court for the Southern District of West Virginia case number 2:19-cv-00882
