Motions are pending in a civil suit filed in connection with the in-custody death of a man who was pepper sprayed in the Bi-State Justice Building jail after complaining of shortness of breath.
Michael Todd Sabbie, 35, was found dead in his cell shortly after 6 a.m. on July 22, 2015. He had been arrested by Texarkana, Ark., police and booked into the jail on a misdemeanor charge the afternoon of July 19, 2015, following a verbal argument with his wife, according to a complaint filed in May 2017 on behalf of Sabbie's family in the Texarkana Division of the Eastern District of Texas.
Sabbie, who suffered from diabetes, asthma high blood pressure and heart disease, allegedly received little attention and no treatment when he complained of breathing problems. At about 4:15 p.m. July 21, 2015, jail cameras recorded Sabbie speaking to a correctional officer while holding a tissue to his face and leaning against a wall. In the recording, Sabbie briefly moves out of the camera's view, and the next images depict officers piling on top of Sabbie while one sprays him in the face with a chemical agent as he is pinned beneath them and unable to move.
Sabbie repeatedly states, "I can't breathe, I can't breathe," as officers threaten him, according to a recording from a hand-held camera with audio. After being placed in a shower, where he appears to momentarily collapse, Sabbie is thrown into his cell. He is discovered dead the following day by officers who open the door after Sabbie fails to respond to their commands to pull up his pants.
In November, U.S. District Judge Robert Schroeder III adopted a recommendation penned by U.S. Magistrate Judge Caroline Craven to deny a motion to dismiss the case filed on behalf of LaSalle Corrections, the private company that manages the jail.
A couple of other motions, filed by lawyers representing Sabbie's family-Erik Heipt and Edwin Budge of Seattle and Texarkana lawyers Matt Soyars and Bruce Flint-are now pending before the court.
Motion to Bifurcate
Budge and Heipt filed a motion in June asking the court to break the trial down into two phases. The first phase of trial will deal with what happened in the jail and whether any of the defendants should be found liable for Sabbie's death and/or guilty of violating his civil rights. If a jury finds that one or more of the defendants is liable, the jury would decide in the first phase the amount of damages that should be awarded for Sabbie's pre-death pain and suffering and whether, and in what amount, punitive damages should be awarded.
Should the jury find none of the defendants liable for Sabbie's demise, the trial would end. But if the jury determines there is liability, then a second phase to determine the amount of damages each of the individual defendants should receive will commence, under the plaintiffs' lawyers' proposal. The motion argues that the two-phase trial is a good idea because it would make the testimony of members of Sabbie's family, including his children, unnecessary if no liability is found, shorten the trial's length and avoid the possibility that prejudicial or emotional testimony could taint the jury's findings concerning liability.
"First, bifurcation would be vastly more efficient because the many first-phase witnesses have no information relevant to second-phase issues-and vice versa. In other words, there is a distinct separation between the witnesses who would be called in the first and second phases. The eight individual plaintiffs (Mr. Sabbie's four minor children, his widow, and his three siblings) as well as several dozen supporting damages witnesses have no information concerning first-phase issues of liability, cause of death, pre-death pain and suffering, or punitive damages," the motion states.
Texarkana lawyer Paul Miller filed a blistering response earlier this month in which he accuses the plaintiffs' lawyers of carefully crafting a "false narrative" which has been widely disseminated by the media.
"Each of those elements of the false narrative are clearly wrong and will be proved wrong at trial," Miller's response states. "Plaintiff, however, now seeks through this Motion to Bifurcate Trial, to be allowed to maintain the false narrative through the liability portion of a bifurcated trial."
The response squarely places blame for the death on Sabbie himself. Sabbie is described as someone who has a long history of faking illness to get what he wants and as a man addicted to synthetic marijuana. The response cites numerous news reports on the dangers and side effects of synthetic marijuana. Attached as an exhibit to the response are two pages from Sabbie's eight-page autopsy report, which classifies his death as "natural" from heart damage related to high blood pressure.
Also attached are copies of an offense report and witness statements regarding Sabbie's behavior in a local emergency room in August 2014, about a year before his death. According to the reports, Sabbie became violent at the hospital and assaulted a staff member, resulting in his arrest. Medical records indicating Sabbie complained of having delusions in 2014 are attached as well.
Excerpts from a deposition of Sabbie's wife are attached to the response. The wife admits that, on the day of his arrest, the couple had a fight and she told police her husband was abusing synthetic marijuana and she was afraid of him. She states that Sabbie was using traditional marijuana and synthetic marijuana to self-medicate symptoms of schizophrenia.
In a reply to the response Miller filed on behalf of LaSalle, Sabbie's family's lawyers accuse the defense of failing to address the real issue of whether the trial should be conducted in two phases.
"While their response is laden with assertions intended to assail Mr. Sabbie-assertions that have little or no relevance to the instant motion-they have not remotely addressed the sound reasons for bifurcation urged by plaintiffs," the reply states.
The reply argues that the highly prejudicial claims made in Miller's response about Sabbie's failings and flaws are evidence of why the trial should be conducted in two phases. The motion is pending.
Motion to compel
Sabbie's family's lawyers recently filed a motion asking the court to order LaSalle to turn over video evidence that records LaSalle correctional officers using chemical spray on inmates since February 2013 and video records of any use of force by officers during the same time period. The lawyers claim the video records are evidence that LaSalle permitted a pattern, practice or custom of using excessive force. In order to prove that the corporation is liable, the plaintiff must show that an accepted practice of the employees led to a violation of his rights.
Attached to the motion to compel are deposition excerpts from a nurse who said she has treated hundreds of inmates who've been pepper sprayed in the jail in the past five years.
"The number she examined was so great that she was unable to say whether it was more or less than 500," the motion states.
The motion describes the number of inmates sprayed as "clearly exceptional for a jail the size of Bi-State. Certainly, the evidence is consistent with allegations made to the Texarkana, Ark., Police Department after Mr. Sabbie's death that the corporate defendants used unjustified force on a 'daily basis.'"
The motion claims the videos are necessary to prove their claim that LaSalle staff had a pattern of using excessive force and regularly failed to adequately decontaminate inmates after using pepper spray on them.
The motion argues that LaSalle's own policy requires that use of force incidents be videotaped and documented and the records should, therefore, be easy to find and copy. Reports from TAPD documenting interviews with inmates housed near Sabbie at the time of his death conflict with statements from officers who allegedly told investigators Sabbie had moved and made noise after being thrown onto the floor in his cell.
The motion complains that LaSalle's lawyers have refused to provide copies of videos of use of force incidents and use of chemical spray for the past five years as requested. A copy of the defense's response to the plaintiff's initial request for the videos describes the request as "overbroad and harassing in nature," and as seeking "information that is not relevant to this claim nor calculated to lead to relevant evidence."
LaSalle has not filed a response to the motion to compel.
The case is scheduled for jury selection April 15, 2019, before Schroeder in Texarkana's downtown federal building.