The state of Kentucky and a company that provides medical care in its state prisons have reached an undisclosed settlement with the widow of a man who died during mental health episode at a state facility, but attorneys say there is still a lack of accountability and systemic issues that plague the prisons.
Attorneys for Marcus Penman’s wife said instead of treating him for his mental disorder, prison staff at the Kentucky State Penitentiary in the town Eddyville responded with “physical torture” that led to his death.
No criminal charges were filed against anyone involved in the incident. It is an example of the systemwide disregard for inmates with mental health issues and an attempt to cover up misconduct, one lawyer says.
“What I’ve seen historically is a manipulation of the truth by Kentucky officials as to how a death has occurred and a prolonged investigation, which I believe to be designed to prevent any family from claiming a civil rights violation because it would push it past the one-year statute of limitations,” Daniel Smolen, attorney for Marcus Penman’s widow, said in an interview with Atlanta Black Star.
Video footage of the April 2017 incident shows the 39-year-old man, who had bipolar disorder, punching himself in the face, slamming his head, and running into a cell door even after blood splashes on the wall and he falls multiple times.
After nine minutes, Penman was tased seven times and pepper-sprayed three times before seven guards entered his cell to shackle him. He was placed in a restraint chair with a spit mask over his head and a shield pressed against his face for about eight minutes.
Penman’s official autopsy report shows that he died of asphyxia by “compression of the neck.” He had a collapsed lung and blood in his eyes, and blunt force trauma to the head and wrist and knees. However, days after his death, prison officials announced in a press release that he died because of self-inflicted injuries.
The medical examiner Dr. Christopher Kiefer pointed out that a guard’s hands were on Penman’s neck while he was being restrained.
“The decedent is moved from the cell into the common area where he is raised by officers to the restraint chair. At this point, an officer located behind the upright part of the chair appears to restrain the decedent’s head by placing his left hand on the head and his right hand on the upper anterior neck,” Kiefer wrote.
“During the following two and a half minutes, the decedent’s head and neck are not visible. In the first minute there is an audible stridor-like sound that alternates with the decedent’s groans,” he wrote. “When a view of the head is again established, the officer’s hand is still on the anterior upper neck.”
Several media outlets reported the news. His wife’s cousin saw the news and informed her of his death. However, Alice Penman said she never received a call from the prison or any officials letting her know that her husband of 15 years had died. Marcus Penman was months away from his parole hearing for drug trafficking and arson charges.
“I knew that wasn’t true because he wouldn’t. He might have been going through some things, but he wasn’t one that wanted to kill himself,” Alice Penman told ABS.
Marcus’ wife did not find out what happened the day her childhood sweetheart died until she was contacted by the attorneys who eventually took on the case.
Smolen said he was working on another case about a dead inmate when he learned about Marcus Penman’s death in a disposition. He reached out to Alice to ask her to be a witness in the other case and revealed to her then the prison’s actions that led to her husband’s death.
It was two months before the statute of limitations on filing a civil lawsuit would run out in Kentucky. Smolen said the state is not legally required to inform the family and can deny records requests during an open investigation.
“I didn’t see the video until my deposition and when I seen it, I couldn’t do nothing but cry. That wasn’t him,” Alice Penman said, acknowledging that he had issues with bipolar and depression from a young age, but she never saw him act out as she saw in the video.
Kentucky State Trooper Cory Hamby, who responded to the scene after Marcus Penman’s death, wrote in his report that many witnesses told him the behavior was usual for the man who had been incarcerated in the prison for 12 consecutive years. Records show Penman was restrained at least two times in the same month before he died on April 25, 2017, because of an “extraordinary occurrence.”
On one occasion, Marcus threw his food tray at a corrections officer. The guard reported the incident to his supervisors, who found Marcus in his cell “sweating profusely and yelling.”
“They’re trying to kill me.” and “I am not coming out,” the prisoner reportedly said on April 4, 2017. He told corrections officers he still felt “unstable” after another incident two days prior. Neither report indicates that Marcus was seen by medical staff.
On the day he died, supervising staff told Hamby the team used pepper spray and a stun gun on Marcus because he ignored their commands. Both forms of force appeared to be “ineffective,” the report says. They placed the spit mask on the prisoner because he tried to spit on them, and shortly after that, Marcus stopped struggling, and they got him on the chair, the report says.
The prison nurse realized he was unresponsive after he checked on him and noticed one of the restraints on the chair was not secure. Video footage shows that he was removed from the chair while CPR and other attempts to resuscitate him were made.
Defense attorneys for the state’s prison system said he was restrained for his and the staff’s safety.
“Corrections staff had to stop Mr. Penman from continuing to injure himself because corrections staff have a duty to protect inmates — even from themselves,” they wrote in court filings.
Hamby said he asked the medical examiner to check for possible suffocation during Marcus’ autopsy, but the medical examiner said his throat did have any damage, and there was blood on his brain, leading to the initial report of “self-inflicted” injuries. However, the medical examiner did not determine the cause of the death until he released a full report on Jan. 8, 2018.
Alice Penman filed the civil lawsuit against Kentucky State Penitentiary officials and employees, Correct Care and medical personnel in April 2018. She received a settlement from Correct Care in the January. The state settled, on behalf of its employees, in March.
Smolen said he believes the prison was trying to keep the truth behind Marcus Penman’s death under wraps until the one-year time limit on civil action had passed.
A grand jury in April 2018 reportedly decided there was no need for a criminal case, but Smolen believes the state did not take a “genuine hard look at a criminal investigation.”
“It’s shocking to me that no one filed criminal charges when you had a homicide, and no criminal justice was ever done on the case,” Smolen said. “No one was really even investigated, even though they had the entire event on video.”
Smolen said Marcus Penman’s case is the fourth case that he has worked on in Kentucky where state prisons have failed to provide mental health care adequately.
In February 2020, the Kentucky Department of Corrections paid a $400,000 settlement to James Kenneth Embry’s family after he starved to death. Embry, who had a history of mental health issues, had refused 35 of his last 36 meals.
“They have what appears to be a complete systemic failure in properly dealing with mental health,” Smolen said.