PHILADELPHIA – Two Philadelphia Police Department officers have motioned to be dismissed from litigation brought by the widow of a 44-year-old man who died of a drug overdose while in custody.
Sherri Pomroy (Executor of the Estate of John Butler, deceased) first filed suit in the Philadelphia County Court of Common Pleas on Feb. 26 versus Philadelphia Police Officer Adam Trush and Philadelphia Police Detective Michael Fahy.
“At approximately 6 p.m. on Oct. 27, 2021, 25th District Philadelphia Police Officers Sylvester White and Markenson Smith responded to an accident at 500 Butler Street in Philadelphia, involving John Butler, driving one vehicle, and another driver, Mr. Mott, who was arrested by Officer White for terroristic threats. Officer Smith arrested Mr. Butler on an Arrest Other Jurisdiction warrant, which is an arrest warrant for an individual who is arrested for a warrant from outside of Philadelphia. Mr. Butler had a warrant from the Schuylkill Haven Pennsylvania State Police for not appearing for court on a drug possession case. Both Mr. Butler’s wife, Sherri Pomroy, and his brother in-law told the officers when Mr. Butler was arrested that he is drug-addicted,” the suit said.
“Officer Smith transported Mr. Butler to the Divisional Booking Center located at 3901 Whitaker Avenue, Philadelphia, PA to process him pursuant to the AOJ warrant. Officer Smith states that he searched Mr. Butler before transporting him to the DBC at approximately 7 p.m. Sergeant Richard Lineman interacted with Mr. Butler in the back of Officer Smith’s vehicle and suspected that he may be under the influence of narcotics or alcohol on account of his dilated pupils, so he performed a field sobriety test on him. Mr. Butler was then placed in Cell Number 16, where he was alone for the following 48 hours until he was pronounced dead at 6:08 p.m. on Oct. 29, 2021. The cell Mr. Butler has a solid steel door without bars, which upon information and belief, was closed during the time Mr. Butler inhabited it. Accordingly, Mr. Butler would have had no way to seek help absent an officer checking on him.”
The suit added that a multiple-day-long identity confirmation process then commenced, through the initial taking of Butler’s fingerprints for the verification of his identity. However, the suit continued that Mr. Butler’s photograph and second set of fingerprints were never taken, as he died of a drug overdose prior to the prints being taken for the second time.
“Philadelphia Police Detective Michael Fahy received confirmation from the Pennsylvania State Police for Mr. Butler during his shift from 8 a.m. to 4 p.m. on Oct. 29, 2021 and prepared a Preliminary Arraignment System report per procedure at 11:45 a.m. Detective Fahy went to Mr. Butler’s cell at approximately the same time he prepared the PARS report to ask if would sign a transfer of custody waiver. Mr. Butler responded that ‘he would do whatever would make him get out of there [the DBC] faster.’ Upon information and belief, this is the last time anyone saw Mr. Butler alive. Mr. Butler was in need of medical attention when Detective Fahy went to his cell that morning. His body had been shutting down from the drugs already in his system at the time of his arrest 36 hours earlier. Further, per the investigation into Mr. Butler’s death, there is camera footage of Mr. Butler in Cell 16 prior to his death which, upon information and belief, would show that his medical need was apparent from his physical appearance,” the suit stated.
“Detective Fahy stated when he was interviewed regarding Mr. Butler’s death that Mr. Butler told him that the vomit, along with the ‘smashed-up sandwiches’ [in his cell] was not from him. Given that Mr. Butler had been the only person in the cell for two days, and a different officer remembers bringing Mr. Butler a sandwich on that same shift, upon information and belief, that statement is false and was said by Detective Fahy as a post-hoc justification for his inaction which led directly to Mr. Butler’s preventable death. In addition to the vomit in Mr. Butler’s cell there were also many bottles of water, as ‘he kept asking for water.’ Further, given that within a few hours, despite taking no harmful action such as ingesting drugs or committing suicide, Mr. Butler was dead, it is reasonable to infer that Mr. Butler’s appearance demonstrated that he was in need of medical attention when Detective Fahy went to his cell in the late morning of Oct. 29, 2021. Philadelphia Police Officer Adam Trush discovered shortly after arriving for his shift from 2 p.m. to 10 p.m., that he was the only officer in the DBC due to callouts. Accordingly, his duties were to process and check on the individuals in the DBC. The term for Officer Trush’s role during this shift is ‘turnkey.”
The suit continued that as the “turnkey”, Officer Trush was responsible for regular checks on inmates from anywhere to every 15 to 30 minutes, and to document those checks in the “log-book” – and further, “should any personnel, during cell block/detention room inspections, perceive that a detainee’s behavior or statements indicate they may be a danger to themselves or others, [they] will take immediate action to ensure the health and safety of the detainee [and] personnel will notify a supervisor of the situation and document it on the medical checklist.”
“Per the Internal Affairs Investigation in this matter, there is no documentation of any checks on Mr. Butler from the start of the 2 p.m. shift until he was found dead four hours later. Officer Trush stated when questioned regarding Mr. Butler’s death that he checked on Mr. Butler at 4:30 p.m. and that Mr. Butler was ‘alert and in good health.’ Upon information and belief this is false. In addition to the lack of any documentation corroborating any checks, when Mr. Butler was discovered 90 minutes later without a pulse, he was, according to Police Officer Isaiah Banks, cold and stiff. Accordingly, it is illogical that 90 minutes earlier he was ‘alert and in good health.’ Even more illogically, the electronic detainee’s medical checklist which was created at 5:30 p.m. on Oct. 29, 2021, shows that as of that time, Mr. Butler had no obvious pain or injury, no obvious serious medical problems, did not appear to be under the influence of alcohol or drugs, and had no visible signs of alcohol and/or drug withdrawal,” the suit said.
“Officer Banks was not scheduled to work in the DBC, but was called in on an overtime detail to assist fingerprinting and processing prisoners at the DBC. When he went to Mr. Butler’s cell, Mr. Butler was unresponsive. Per Officer Banks, Mr. Butler was ‘cold to the touch, felt stiff, and his eyes were open.’ Officer Banks checked his pulse with negative results and then went to get a supervisor and call a medic. Sergeant Stanley Sanford stated in a written statement that after being informed by Officer Banks that Mr. Butler was unresponsive he observed Mr. Butler ‘laying on his stomach with his head down next to his sneakers. After life-saving measures were attempted, Mr. Butler was pronounced dead at 6:08 p.m. The Medical Examiner’s report cites the cause of death for Mr. Butler as ‘Drug Intoxication (Methamphetamine)’ and manner of death as ‘Accident.’ Philadelphia Police Lieutenant Francis Erickson of Internal Affairs investigated Mr. Butler’s death. Lieutenant Erickson states in his report, ‘On 7-12-22 the assigned spoke with Dr. Sorokin, at the Medical Examiner’s Office, regarding how Mr. Butler could die from methamphetamine use 48 hours after being arrested. The investigator was informed that methamphetamine overdoses after a prolonged period could be due to the subject not being aware that their body was in distress because of the effects of the drug.”
The suit added “defendants Trash and Fahy made an intentional decision with regard to Mr. Butler’s medical care which placed Mr. Butler at substantial risk of suffering serious harm and did not take reasonable available measures to abate that risk, even though a reasonable police officer in the circumstances would have appreciated the high degree of risk involved, thereby making the consequences of the defendants’ conduct obvious.”
On April 4, the City removed the case to the U.S. District Court for the Eastern District of Pennsylvania, citing the plaintiff’s reference to alleged violations of federal civil rights laws.
UPDATE
On May 23, defendants Trush and Fahy motioned to be dismissed from the case, arguing they were statutorily-immune from the negligence claim asserted against them and that the “reckless disregard of safety” is a non-existent cause of action, in addition to Fahy being added beyond the statute of limitations.
“Courts may grant a motion to dismiss for failure to state a claim based on the statute of limitations. In Pennsylvania, personal injury actions “founded on negligent, intentional, or otherwise tortious conduct” are subject to a two-year statute of limitations.
Detective Fahy was only named as a defendant upon the filing of the complaint in the third consolidated state-court action on Feb. 26, 2024. Because the allegations in the complaint concern the death of Mr. Butler on Oct. 29, 2021, Detective Fahy has been sued three months after the two-year statute of limitations passed. Accordingly, the action should be dismissed against Detective Fahy,” the dismissal motion stated.
“Reckless disregard of safety refers to a degree of care; it does not give rise to a tort distinct from negligence. Reckless disregard of safety, as that standard is described in the Restatement (Second) of Torts Section 500, is subsumed within a negligence cause of action. Because plaintiff has separately pled negligence in Count II, Count I should be dismissed as failing to allege a distinct cause of action recognized by Pennsylvania (or, for that matter, federal) law.”
The named defendants further argued they are immune from the plaintiff’s claims, pursuant to the Political Subdivision Tort Claims Act.
“The Pennsylvania Political Subdivision Tort Claims Act provides that ‘an employee of a local agency is liable for civil damages…caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency…’ Local agencies – and therefore their employees – are immune from liability, Section 8541, except for negligent conduct falling within nine enumerated exceptions. Moreover, the Tort Claims Act immunizes individual public servants from civil liability unless they act with ‘willful misconduct.’ Given this standard, courts must dismiss a claim against individual defendants unless that claim alleges the individuals ‘acted with even more than gross negligence or recklessness.’ Put differently, the Tort Claims Act’s immunity is only withheld ‘where an officer commits an intentional tort or certain negligent acts excepting governmental immunity under Section 8542,” the motion continued.
“A claimant seeking to impose liability on a local agency has the burden of establishing (1) That a common-law or statutory cause of action exists against the local agency or its employee acting within the scope of his employment, and (2) That the negligent act falls within one of the [now nine] exceptions to sovereign immunity enumerated in subsection 8542(b) of the Judicial Code.’ Plaintiff has not asserted an intentional tort claim against Officer Trush or Detective Fahy. Nor do her characterizations of negligence in Count II, or any conduct described in the complaint, meet one of the enumerated negligence exceptions in the Tort Claims Act. Accordingly, defendants Trush and Fahy or immune from liability under state law and the complaint should be dismissed against them. For all the foregoing reasons, the Court should dismiss plaintiff’s complaint against defendants Trush and Fahy.”
For counts of reckless disregard for safety, negligent undertaking to render services to protect others, negligent infliction of emotional distress and gross negligence, the plaintiff is seeking compensatory and punitive damages in excess of $50,000, along with costs, attorney’s fees, interest and such other and further relief as the Court may deem just and proper.
The plaintiff is represented by Alan L. Yatvin and Noah S. Cohen of Weir Greenblatt Pierce, in Philadelphia.
The defendants are represented by Andrew Pomager of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01416
Philadelphia County Court of Common Pleas case 231003264
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com