Relatives Sue Over Inmate's Slaying by Prison Guard

Relatives Sue Over Inmate's Slaying by Prison Guard
The family alleges improper training of the officer and inadequate medical care for the Wasco facility's prisoner.
By Jenifer Warren, Times Staff Writer

March 29, 2006


SACRAMENTO — Relatives of an inmate killed by a guard at a prison near Bakersfield sued the state Tuesday, alleging that the officer was ill-trained in the use of his weapon and that corrections officials failed to provide adequate medical care.

The lawsuit, which seeks unspecified damages, was filed on behalf of the young son and mother of Daniel Provencio, an Oxnard man who died last year after he was shot in the head with a rubber projectile.

The shooting was ruled justified by an independent review team. But investigators said inadequate training with the weapon may have caused the officer to hit Provencio in the forehead, rather than in the legs as intended, when he opened fire to break up a fight.

The Kern County coroner's office ruled the death a homicide caused by blunt-force trauma to the head.

Provencio's case stirred attention from state lawmakers -- and Gov. Arnold Schwarzenegger — because he was hospitalized in a coma for weeks while being guarded around the clock at a cost of more than $30,000 to taxpayers. For a portion of that time, Provencio also was shackled.

Schwarzenegger called the guarding of a brain-dead inmate "ludicrous" and a poor use of state money, prompting a review of internal rules by the Department of Corrections and Rehabilitation. On Tuesday, a department spokeswoman said that review was continuing and that decisions about appropriate security for incapacitated inmates were being made on a case-by-case basis. She declined to comment on the lawsuit.

The shooting took place during dinner on Jan. 16, 2005, at Wasco State Prison. After an inmate dumped food on another and hit him on the head with a tray, an officer ordered all prisoners to lie down.

Most complied, the investigative report said, but Provencio — who had not been involved in the fight — moved toward the officer in what witnesses described as a threatening manner. Tests later showed that he was intoxicated, with a blood-alcohol level of nearly twice the legal limit for motorists. Witnesses said he had consumed a large amount of pruno, an alcoholic brew made illegally behind bars from fruit and other ingredients.

Perched in an elevated control booth, a second officer fired a projectile from his 40-millimeter launcher, striking Provencio in the head. He lost consciousness at the prison infirmary and was taken to a hospital, where he slipped into a coma that lasted until his death March 4, 2005.

An investigation by the Office of the Inspector General — a watchdog over state prisons — called the use of the launcher reasonable but faulted the prison's weapons training.

The lawsuit alleges that the state and the prison's warden were negligent in failing to properly train the officer to use a weapon designed to be nonlethal. The suit also says prison officials failed to conduct inspections that might have discovered the pruno.

The lawsuit further alleges that a doctor and nurse who examined Provencio in the prison infirmary lacked the education and skills to properly treat him. As a result, the suit contends, his head wound developed into a subdural hematoma, leading to his death.

A Westwood lawyer for the Provencio family, John P. McNicholas, declined to discuss the lawsuit, saying, "We will get to the bottom of this through the due process of law."

Provencio, 28, was in prison for parole violations and previously had served a term for a narcotics conviction. In an interview after he was shot, his mother, Nancy Mendoza, said her son had recently overcome a heroin addiction and had been working a steady job laying utility pipe until his arrest for drunk driving.

Provencio's sister, Nancy Anaya, said Tuesday that her family decided to sue because "we hope to make some changes, so that his death will not be in vain."

"The guards need to be trained on this weapon if they are going to be firing," Anaya said. "Not all of these inmates are in prison for violent crimes and [they] do not deserve to be treated like an animal."