From his retirement home in Pennsylvania, Frank Davis has watched the Joshua Messier case unfold with keen interest and painful familiarity.
Messier is the young man who died while being restrained by guards at Bridgewater State Hospital in 2009. Governor Deval Patrick has called the death “disgusting” and has disciplined several officials deemed responsible.
But before the death of Messier, there was the beating of Jason Davis, Frank Davis’s son. He, too was a mental patient at a Massachusetts state hospital — in his case, Westborough State Hospital. He suffered a beating at the hands of guards, in 1993.
Davis wasn’t killed during his beating. But it was, his father says, a tragic turning point in a life that ended too early a decade later. The Davis family is still waiting for the justice that courts say it is owed.
Jason Davis was 28 at the time of his assault. He had been diagnosed with schizophrenia and bipolar disorder and had been in and out of mental hospitals since he was 17. He had been committed to Westborough for threatening to kill his father.
The string of events that led to his assault, as outlined in multiple court decisions, began harmlessly enough.
On Aug. 12, 1993, Davis and a fellow patient slipped out of the hospital — it was not a locked facility — and headed for a nearby liquor store. Davis’s father believes he was disappointed because his birthday had come and gone two days earlier with no visitors.
The two men were in the woods near the hospital drinking beer and wine coolers when a State Police officer assigned to the hospital tracked them down and took them back to the hospital, turning them over to hospital officials without incident.
The men were placed in separate “restraint” rooms when a couple of guards began to taunt Davis, according to court documents.
In the room at this point were six guards, the nurse, and Davis, who became increasingly agitated. He kicked at one of the guards, missing him. At least four guards then held him down while one, Phillip Bragg, did most, if not all, of the punching, and the nurse cheered them on, according to court documents. Bragg was later fired.
The State Police officer who had returned Davis to the hospital broke up the beating, which started when he was out of the room.
“There was blood all over the place,” said attorney Christopher Perry, who represented Davis in his successful lawsuit. “At trial, one of the defendants said [Davis] looked like a fighter looks like when he comes out of the ring.”
Davis sued the state employees responsible for his assault, winning a string of judgments in state and federal court between 1998 and 2001. The state’s attorney general, Tom Reilly, attempted to appeal the state’s losses to the US Supreme Court. The high court in 2002 refused to hear the state’s appeal, effectively upholding the decision of the First Circuit Court of Appeals.
The award was divided into seven parts, one for each of the state employees found culpable in the beating. They were sued individually, because the state itself could not be sued under the applicable federal civil rights law.
With accrued interest, the judgment now stands at $2,085,000, according to Perry, but Davis’s family has seen almost none of it. The defendants have maintained in court documents that they cannot afford to pay the judgment.
Given that the beating happened while Davis was in state care the obvious solution is for the state to pay the judgment. But a measure that would have done just that, sponsored by Representative John Rogers, a Norwood Democrat, was removed from a supplemental budget appropriation a couple of weeks ago.
“In my mind, the liability of the Commonwealth has always been crystal-clear,” Rogers said last week.
Oddly, the state chose, years ago, to pay a small part of the judgment — a $177,000 verdict against one of the guards — while appealing on behalf of the other defendants. Why it has resisted paying the other awards has never been clear, said Rogers, who took up this cause a decade ago, while serving as chairman of the House Ways and Means Committee.
Perry said the case has become something of a landmark — cited, by his count, in 167 other federal decisions. Still, the awards have never been funded.
“It is ironic that the state will pay verdicts for harm that is accidentally occasioned but it will not pay verdicts from harm which results from an intent to hurt our mentally ill — the most voiceless, vulnerable, and defenseless members of our society,” Perry said.
Jason Davis recovered from his beating physically. He was transferred to Bridgewater State Hospital after the incident and taken off his psychiatric medications. He left state care the moment he was legally free to do so, and refused further hospitalization. He died in 2004 from alcohol poisoning. His mother died five months later.
“It all affected my family considerably,” William Davis said Sunday.
Besides being an avoidable tragedy, the case of Jason Davis was a missed opportunity. It might have been an early chance to establish and rigorously enforce standards of conduct for caring for mentally ill patients. It might have taught the state a lesson. It might not be too much to think it might even have saved a life.
“The Davis case should have sent a loud, clear message to the Commonwealth, which would have avoided Joshua Messier’s death entirely,” Perry argues.
Rogers said the Legislature can still address the issue before the session ends later this year, and he hopes to persuade his colleagues to do the right thing.
Meanwhile, Frank Davis lives with a hollow legal victory. “The state should have been held accountable for all this stuff and they weren’t,” Davis said. “They were held accountable in court, but what kind of accountability is it when there are no consequences?”