- What Happened
The whole thing started with a lie — a lie from a prison chaplain.
The loud ring of a telephone cut through the morning stillness of a dimly-lit house in Lebanon, Tennessee. Bobby Luna, already awake and brewing a pot of coffee, picked up the receiver. “Good morning,” a voice said. “This is Chaplain Jerry Wellers from Riverbend Prison. I need to speak with Jane Luna about her son Jason Toll.” Bobby’s mind raced. Shit, he thought. This can’t be good.
His stepson Jason was in prison for a parole violation that stemmed from burglaries, parole violations and property crimes. Although Bobby was annoyed by Jason’s legal issues, Jason had never been violent. “Jane,” Bobby gently shook his wife awake. “It’s the chaplain from Riverbend, and he needs to talk to you. It’s about Jason.”
Jane sprang out of bed and snatched the telephone from Bobby’s hand. “Mrs. Luna,” the chaplain said, “I am sorry to inform you that your son Jason was found dead in his cell at 2 a.m. this morning. He suffered a heart attack.” Jason was thirty-three years old. Jane had struggled to get help for Jason and his schizoaffective disorder; he had visibly suffered with mental illness since he was fourteen years old. No health insurance would cover the costs of a psychiatrist, and Jane worked double shifts just to make ends meet. So this is how it ends, she thought. Her only son died alone in a cold prison cell. Mental illness, diabetes and the harsh conditions of prison had finally ended Jason’s life.
Except that isn’t how it happened at all. The death of Charles Jason Toll started and ended with lies and more lies from the State of Tennessee.
Two days later, Jane Luna received an anonymous call at her home. The man was a corrections officer at Riverbend Prison and he had witnessed Jason’s death. He told her a new corrections officer named Jeffrey Reckhart was known for agitating inmates, especially those in solitary confinement. In the days prior to Jason’s death, there had been a running feud between Officer Reckhart and other inmates housed in solitary confinement within the prison pod.
According to the caller, Reckhart had repeatedly cursed at and taunted Jason, leading the inmates to toss liquids at Reckhart from their cell. The warden then banned the inmates in the pod from possessing liquid containers or straws. Despite the restriction, the caller reported that on the night of his death, Jason blew liquid — probably water — through a straw at Reckhart.
These types of events happen routinely in the prison. Although characterized as “assault on an officer” the punishment is usually handled internally with the prison’s disciplinary board. Consequences generally include withheld inmate privileges such as personal telephone calls.
Reckhart reported the event to his supervisor, Captain James Horton, telling him Jason had barricaded himself in his solitary cell to prevent anyone from coming in. Captain Horton, the man in charge of the prison pod that night, assembled five guards to forcibly extract Jason from his cell. When the door was opened, the extraction team stormed inside and tackled him. Handcuffed, Jason was dragged to a dark recreation yard where, lying face down, he died.
“It is all on film from two cameras, and there are two reports,” the anonymous caller said. “It looks like he suffocated.” Then he hung up. The call lasted less than five minutes. The next day, Jane received a copy of the incident report confirming that Jason was dragged from his cell for “tossing an unknown liquid onto a corrections officer.” An acquaintance who worked at a different prison boldly printed the report and gave it to a mutual friend who in turn gave it to Jane.
Jason Toll’s entire life to that point had been a slow-motion tragedy. His father, Frank, was mostly absent and disengaged. Jane worked tirelessly to support a young Jason. When he was four years old, Jason was dropped off at his paternal grandparents’ home so Jane could work the night shift at a factory. A paternal uncle sexually molested him for over a year at the grandparents’ home while Jane worked. When the abuse was discovered, Jane was told not to file a report. The authorities said Jason was too young to remember any of it.
When Jason was 14 years old, his mother married a man named Chris Gately. The two developed a warm relationship: Chris took Jason fishing, taught him how to play baseball, and spent quality time with him. Within a couple of months after marrying Jane, Chris died of a sudden heart attack. Jane was emotionally wrecked, while Jason became withdrawn and incorrigible. He asked to move in with his biological father.
In Frank’s home, Jason had no discipline and no parental instruction. He was arrested for trying to buy marijuana in a mall parking lot, stealing Frank’s car and high tailing it with a friend to Texas, setting a trash can on fire with a discarded cigarette. Time and time again, he landed in a boys’ detention center. Running away earned him more time in state custody. He dropped out of the ninth grade and never returned to school.
One sunny day on work release, Jason and some other inmates were trimming the hedges at a local high school. Jason jumped behind the wheel of a photographer’s van and drove to a nearby church parking lot one mile away, much to the amusement of his fellow inmates. He was promptly recaptured without incident. The escape caused a commotion for the sheriff: trusty inmates were forbidden from working near a school. Jason landed in prison for felony escape.
With minimal mental health treatment and an ever-worsening schizoaffective disorder, Jason Toll became institutionalized, he had grown accustomed to prison life. His behavior became increasingly antisocial. During his confinement Jason wrote a letter to Boris Yeltsin, the president of Russia at the time, complaining that the guards were “out to get him.” He developed a far away look in his eyes and he became more and more paranoid. After Jane was laid off from her job and lost her health insurance, no mental health treatment was available once his prison sentence ended.
After he was released from custody, Jason Toll lived with his maternal grandparents and returned to work in construction. He met a girl, and they were briefly engaged. That ended when Jason took her car to burglarize the home of a childhood friend. He then drove into Kentucky, where he crashed her car. Jason was captured and summarily returned to prison to serve his full sentence for violating parole. While incarcerated, two other inmates raped Jason and cut his wrists to make it look like a suicide attempt. A LifeFlight helicopter took him to Vanderbilt University Medical Center, where doctors saved his life.
Once he was returned to prison, a malignant resentment grew inside of Jason. He felt he had been betrayed by the prison guards for permitting the sexual assault to occur. He tossed hot water on two guards, neither of whom were seriously injured. After a brief transfer to DeBerry Special Needs Corrections Facility, he was placed in solitary confinement at Riverbend Maximum Security Prison, where he attempted suicide multiple times: swallowing razor blades, excessive doses of Tylenol. His actions screamed for help but none came. The stars aligned so that Jeffrey Reckhart would be Jason’s overseer.
- Is this a 1983 case?
“Is that make-up on your lapel?” asked Deltah, my wife of fifteen years, when I arrived home from work one late August evening in 2010. Three hours earlier, I had attended the funeral visitation of Jason Toll. Jane Luna, a former workers’ compensation client, had referred her injured co-workers to me over my first decade of practicing law. My father had been Jane’s supervisor. At the funeral home, Jane had buried her head against my chest and sobbed. “Please get justice for me and Jason,” she cried.
I felt helpless. I felt sadness. And, I felt I was not the right lawyer for this case. I mostly represented people injured in car wrecks and workers’ comp claims. Hell, I wasn’t even sure what category of law this case fell into. Maybe this is one of those “1983 cases” I read about in law school, I thought. I had never represented anyone in a civil rights case. I didn’t know how to use PACER. In my eleven years of practice, I had never tried a case in federal court.
As I held Jane, I caught the eyes of two former workers’ comp clients. They nodded to me. The lump in my throat was swollen and sore, and it was only getting bigger. A tear slipped out of my right eye. “Lawyers aren’t supposed to feel — and by all means, do not get emotionally attached to your clients.” That was taught to me at the Nashville School of Law. It felt as though all eyes in the room were upon us. I looked at Jane with blurry eyes. “I don’t know the first thing about this type of case, but I assure you I will find someone who does,” I told her. “I will find them and work with them, and we will get justice for you and Jason.”
As I left the funeral home, Jane’s husband Bobby gave me a copy of the internal prison incident reports. They confirmed that Jason was forcibly dragged from his solitary cell, handcuffed, kept face down and ultimately died. Sitting in my truck, I had no idea the life-changing journey that awaited me — or the extent of my promise to Jane.
For weeks following the cell extraction, the story of Jason Toll’s death was covered by Nashville’s daily newspaper, as well as the local television news channels. The media wanted to know why an inmate was dragged from his cell and caused to die. The Tennessee Department of Corrections offered vague answers as the District Attorney ran the facts through a secretive grand jury. Unsurprisingly, not one indictment was issued against the correctional officers.
Behind the scenes, a separate drama was unfolding. Dr. Brent Davis, a forensic pathologist, was tasked with performing the autopsy on Jason Toll’s body, as well as providing a final report and opinion on the cause of death. He was given two VHS recordings that, in accordance with prison policy, had captured the cell extraction and the final moments of Jason Toll’s life.
Davis waited to view the videos until after examining Jason’s body, so as not to bias his medical examination. He watched Captain James Horton assemble five corrections officers, all equipped with motorcycle helmets, gloves and riot gear. The lead officer, Gaelan Doss, held a clear Taser shield as they marched single file to the door of Jason Toll’s solitary cell. Anticipating a gas attack, Jason had wrapped his face with a t-shirt and stuffed toilet paper into his nostrils. His face in the cell’s narrow rectangular glass displayed agitation.
Jason pleaded with Captain Horton. “All I wanted was a bean tray!” he said, referring to vegetable trays that help diabetics moderate their blood sugar. Captain Horton ignored Jason, making no effort to deescalate the situation. Finally, Jason yelled, “Well, let’s get it on! Yeah! I ain’t no new buddy!” The other inmates, laughing, encouraged the escalating drama. As soon as the cell door opened, Officer Doss activated his shield’s electric charge. The rest of the cell extraction team followed him into the cell and forced Jason onto his stomach.
Almost immediately, Jason is heard screaming, “I can’t breathe! I can’t breathe!” from the bottom of a dogpile with all five guards on top. After two minutes inside the cell, he was handcuffed and dragged on his stomach onto the cold concrete floor outside his cell.
Written reports and testimony from the extraction team members falsely claimed Jason was “struggling and combative the whole time.” The videos proved otherwise. Jason showed no sign of resistance as he was dragged across the floor. He began to cry, clearly struggling to breathe. The prison nurse stood quietly nearby and did nothing. Captain Horton held a Taser to Jason’s bare stomach and gave a confusing command: “If you move a muscle, I will Taser you. Do you understand? Now, ROLL OVER!”
Jason cried that he couldn’t breathe. “You are not gonna be able to breathe, now ROLL OVER!” Exasperated and breathless, Jason did not obey the command. Captain Horton ordered his team to forcibly roll Jason over, cuff his hands behind his back and take him outside “face down” into the darkened prison yard.
Both cameramen continued to record. One was a corrections officer named William Terry Amonette, a former police officer from Georgia who was new to Tennessee. The corrections job was a temporary position before he could transfer into law enforcement. Amonette never spoke, and he never laid a hand on Jason Toll. He just watched and recorded.
While Jason was being carried to the recreation yard, the cell extraction team taunted him. “This is what you wanted,” laughed a guard. “How you doin’ now, buddy?” asked another. Captain Horton was not above the jeering. “We’re just trying to help!” he hissed. The videos showed a flashlight darting back and forth across Jason and the white concrete beneath him. Officer Doss pressed his shield onto Jason’s back while Jason thrashed. “I can’t breathe- please…I can’t breathe!” Jason thrashed like a fish out of water as he begged for air, his lungs burning underneath the shield. “Stop moving!” the guard shouted. “Do not resist!”
Jason cried for his mother before falling silent. None of the cell extraction team members realized what was happening. They continued to search Jason’s body, shouting commands as they pulled off his silver chain and T-shirt. Jason’s head slumped, his forehead bouncing off the concrete below. “Stop moving!” Officer Doss yelled. Jason was silent. Another thirty seconds of footage passed as Jason remained face down, skin blue, eyes shut. Finally, Officer Doss called the nurse over to check on him. She called out Jason’s name and got no response. Officer Doss rolled his body over and struggled to remove the handcuffs. Finally, CPR was started.
The final seconds of video footage showed frantic attempts to revive the dead Jason Toll. A medical staffer with a crash cart was radioed over, his face never appearing on camera. “Y’all better start documenting this shit real good!” he yelled. The footage faded out with CPR being performed on Jason’s body as it is carted away.
Having watched this video, Dr. Brent Davis felt deeply troubled. He had concluded from the autopsy and the video footage that Jason had died of positional asphyxia: a type of suffocation resulting from being held face down. Positional asphyxia was a known risk of being held face down, which is why the prison’s policy specifically forbade it. Davis was pressed by John Fisher, an internal affairs investigator for the state, for the report. Davis felt an unspoken pressure to issue a benign cause of death.
It was four months before Davis released the death certificate. In an act of conscience and courage, he identified positional asphyxia as the cause of Jason’s death. The manner of death: homicide. Contrary to the prison chaplain’s lie, Jason Toll did not die alone in his cell.
III. Discovery and Trial
Damn it. I rolled over in bed. It was 6:45 a.m. on a Saturday, and the phone was ringing. Bobby Luna’s voice greeted me through the receiver. Two hours later, we were sitting at Waffle House. I had spoken with my lawyer friends, David Weissman and David Raybin, both known for prosecuting civil rights cases. They had agreed to associate with me on the case as long as Jason’s death was caused by asphyxiation. Bobby handed me a copy of the death certificate, and I scanned it until I spotted the cause of death: positional asphyxia.
We opened an estate. Because Jason was not married and he had no children, the probate court appointed his mother Jane Luna as the administratrix. For the next three weeks I read as much as I could about civil rights litigation. I came to understand that a “1983 case” is very different from a negligence case. The first step was to distinguish between a Fourth Amendment and an Eighth Amendment case. When a lawsuit is filed for violation of a Fourth Amendment violation due to “unreasonable search and seizure” or the use of “excessive force,” the injured plaintiff is considered a pre-trial detainee — the criminal process has not concluded. The accused person is still shrouded with the presumption of innocence.
When wrongful death of a prison inmate occurs due to a constitutional violation, the lawyer must sue under the Eighth Amendment. The inmate has lost his right to freedom (by their conviction) and is guaranteed that he will not be subjected to “cruel and unusual punishment.” One or more of the following elements must be met in order to prevail on an Eighth Amendment civil rights violation: 1) excessive force was used that amounts to “sadistic and malicious” conduct, 2) deliberate indifference to an inmate’s need by someone acting under color of state law, and/or 3) failure to train.
I wanted to name the state of Tennessee as a party in the civil rights case, but the Eleventh Amendment prohibits direct actions against the state itself unless sovereign immunity is waived. Instead, we were required to sue all persons “acting under color of law.” But since a lawsuit had not yet been filed, there was no subpoena power. So how the hell could we know who to sue? Moreover, the Tennessee Department of Corrections was stonewalling us.
On January 12, 2011, we sent a letter to the Tennessee Attorney General requesting the names of every officer on the cell extraction team. They divulged the names. We still needed the warden’s name, the footage of the cell extraction and a copy of Jason Toll’s inmate file. Finally, the state forked over the information.
Jason Toll’s medical records were clear: he received psychotropic drugs for schizoaffective disorder. Staff members at the prison who administered his medication should have known he had mental health issues. The records also revealed that in the months prior to his death, Jason Toll’s psychotropic drug prescription had increased. The parole board at Riverbend had recommended Jason for a transfer to a special needs prison that could better treat mental illness. However, they provided no evidence of a follow-up on the recommendation.
I was getting excited thinking about the proof development, only to realize…much of it just didn’t matter. This was not a negligence case – we had to show deliberate indifference, a much higher bar to clear than negligence. Prior notice of any health condition, without much more, would not help us survive qualified immunity. What did matter is that Ricky Bell, the prison warden, had eliminated cell extraction training one year prior to Jason’s cell extraction, relying on the basic training that trainees in the state Corrections Officer Training Academy received. The state training manual warned that leaving an inmate facedown and handcuffed can cause positional asphyxia. More importantly, that rule had become part of the prison’s policy.
In drafting the complaint, we checked the boxes of the three-pronged test. Was there excessive force that amounted to “sadistic and malicious” conduct? Check. The video showed Captain Horton ordering officers to keep Jason face down with his hands restrained behind his back — a forbidden position that caused him to suffocate. The video also showed corrections officers taunting and mocking Jason.
Was there deliberate indifference? Check. In three separate locations (his cell, the pod and the prison yard) Jason was plainly heard screaming, “I can’t breathe!” The captain in charge, along with the nearby nurse, ignored his pleas. Neither made moved a muscle to assist him. They were both deliberately indifferent to Jason’s basic human needs.
Finally, was there a failure to train? Check. Warden Bell had eliminated training on cell extractions. Although only one was needed, all three boxes for an Eighth Amendment case were checked. We filed suit on February 2, 2011.
We sued every member of the cell extraction team. Until we took each of their individual depositions, we had no idea the role each one had played in the event. The day the case was filed, we received an anonymous call. William Terry Amonette, a corrections officer who filmed the cell extraction, had resigned. The other guards thought he was “too sympathetic” to Jason, the caller said, and that he asked “too many questions.” We shrugged and thought little of it.
We asked for personnel files for each individual defendant. Naturally, we expected any resignation letter to be part of the material produced. We requested “any and all written reports, memoranda, emails” and asked for “any statements made by each person involved with the cell extraction.” Thankfully, we sequentially “Bates stamped” every document that was produced — something we didn’t realize would be vital down the road.
After reviewing thousands of pages of information, we set a total of ten depositions for each of the cell extraction team members for the week of January 23, 2012. David Weissman would depose five officers, and I would depose the rest. On Saturday, my wife called. She had gone to check on my father, who had been feeling ill. He had not come to the door when she knocked, and he was not answering his cell phone. His black Jeep sat parked in front of the door to his townhouse. The porch light was on.
I knew. I knew before I ever got into the car with my brother Scott to go check on him that my father had died. When we opened the door, we found him lying just inside the doorway. He had died of a heart attack. I knelt down and hugged my father’s cold body as I cried.
While I attended my father’s funeral and worked to clean out his apartment in the following days, David Weissman did yeoman’s work. In less than 48 hours, my co-counsel’s workload had doubled. He took ten depositions that week. That included his very productive January 25 deposition of Terry Amonette. In his three years at Riverbend, Amonette had never received cell extraction training. As he filmed the officers carrying and holding Jason face down, Amonette knew it was not good practice. An assistant warden told Amonette that “except for Jeffrey Reckhart’s agitation of Toll, there would be no case.” Amonette also mentioned he had resigned, saying the resignation letter “should be in my personnel file.”
On May 22, I deposed Officer Gaelan Doss. Since our theory of the case centered on the cause of death being positional asphyxia, it became necessary to ask each officer his weight. “473 pounds,” Doss testified. The other four officers weighed around 200 pounds each. The combined weight of the cell extraction team — which was compressed on Jason’s body for nearly two minutes — exceeded half a ton.
Doss testified that in the year before Jason Toll’s death, despite being involved in more than 20 cell extractions, he had not undergone training for the procedure. Doss had never had any problems with Jason being unruly. Doss acknowledged that in the moments leading up to the cell extraction, Jason was not a threat: he was alone, secure and locked in his cell and was not making suicidal threats. There was no discussion among the guards concerning Jason’s health. Doss characterized the cell extraction was “successful,” which raised questions of what would have to happen in Doss’ mind for a cell extraction to be unsuccessful. He testified he had heard Jason say, “I can’t breathe two or three times.”
Doss gave a sworn statement to John Fisher, the internal affairs investigator, at 4:00 a.m., seven hours after Jason died. Its transcript revealed that Doss had heard Jason say he couldn’t breathe. “We did not let up because inmates will say that to trick us … and then they will resist again.” After the autopsy report came out, Doss provided another sworn statement in January 2012. Once again under oath, Doss stated something totally different. This time, he said he “never heard Toll say, ‘I can’t breathe.’” Asked to explain this blatant discrepancy, he shrugged it off as “it was the best I could remember.”
Warden Ricky Bell gave his deposition and acknowledged that he made policy and oversaw its implementation. Relating to his knowledge of positional asphyxia, Bell testified that he knew “we shouldn’t do it” when it came to cuffing an inmate behind their back and putting them belly-down, “because of suffocation.” He had “cut out” cell extraction training despite prison policy which mandated it. Bell boasted that he had been sued at least 50 times — all ending with no payment to an injured inmate. He considered Jason’s case to be “frivolous.”
Bell had the authority to seek review of an inmate’s mental health for transfer to a different facility but did not recall ever looking into it for Jason Toll. The warden “didn’t recall” discussing Jeffrey Reckhart’s ongoing conflict with Jason with the officer under his command. He left it to the unit manager to “handle.” When he received the call informing him of Jason’s cell extraction and death, Bell did not go to the prison because “there was nothing I could do.”
We took 24 depositions. Our law firms expended $47,000 on experts, videographers and court reporters. We thought we were dealing with all the facts of the case. Little did we know, a key piece of evidence was missing. Had that evidence been produced in the discovery phase, it would have influenced every single deposition we took. But defense counsel Arthur Crownover, an attorney for the Tennessee Attorney General, buried it….