Decedent at fault, Forks city says
By Paul Gottlieb
Defendants in a federal civil rights lawsuit have denied negligence in the death of a 23-year-old Native American woman who died by suicide in the Forks city jail.
Kimberly Bender was responsible for her own demise Dec. 7, 2019, not the city, Police Chief Mike Rowley or four other current and former jail employees, Seattle attorney Megan Coluccio said Monday in the filed response to the complaint.
“Plaintiffs claimed injuries or damages were caused in whole or in part by the contributory negligence or other fault of Kimberly Bender, thus barring or diminishing plaintiffs’ claims, if any,” Coluccio said in the filing, denying Bender was “allowed” to take her own life.
Coluccio said the city is immune from liability and that the individuals have qualified immunity from prosecution.
“Plaintiffs damages, if any, were a direct and proximate result of third parties over which city defendants had no control,” Coluccio said.
Along with Rowley, Corrections Sgt. Lex Prose, retired corrections Sgt. Ed Klahn, police records administrator and former Corrections Officer Brandon Leask, and former Corrections Officer Kelsey Pearson, are named as defendants.
Seattle indigenous rights attorney Gabe Galanda, who was born and raised in Port Angeles, is representing Bender’s mother, Dawn Reid of La Push, and Judson Gray, a representative of Bender’s estate, as plaintiffs. Galanda is managing lawyer at Galanda Broadman of Seattle.
They are seeking a jury trial, unspecified economic and non-economic damages, punitive damages and attorney fees, saying the defendants violated Bender’s 14th Amendment right to due process, which “imposes a duty on jail officials to provide humane conditions of confinement.”
Coluccio, a partner with Christie Law Group of Seattle, is seeking dismissal of the complaint and costs and attorney fees. She could not be reached last week for comment.
The firm was assigned to represent the city defendants by the Association of Washington Cities insurance risk pool, Forks City Attorney-Planner Rod Fleck said.
A primary plaintiff in the lawsuit, convicted sex offender and former Forks and state of Washington corrections officer John Russell Gray, is not represented by Coluccio.
The 53-year-old Forks resident is accused in the lawsuit of sexually harassing and tormenting Bender between July 2019 and November 2019, driving her to hang herself in her cell.
Galanda said last week his office had not yet served Gray with the 29-page complaint but intends to do so.
Gray is serving 20 months in a state prison on four charges of felony and gross misdemeanor custodial sexual misconduct. He pleaded guilty to having sexual intercourse or sexual contact with four Forks jail inmates between June 13-Oct. 4, 2019, two months before Bender’s death.
Gray was arrested in May 2020, pleaded guilty in February, and according to Galanda appears likely to be released by Jan. 31.
Three of the women Gray victimized were, like Bender, heroin addicts, according to the lawsuit. He paid bail for three after assaulting them, according to court records.
Gray made lewd comments to Bender about sex, referred to her inhaler as a sex toy, stalked her in her cell and “woke her up with vile remarks,” the complaint said.
“Kimberly would be defendant Gray’s fifth known victim,” according to the complaint.
The lawsuit alleges the jail knew about suicidal tendencies Bender had exhibited during past stays at the jail.
In her response, Coluccio admitted or denied aspects in the complaint.
Coluccio agreed Bender was incarcerated at the jail in 2019 from July 15-24, Sept. 25-Oct. 10, and Nov. 5-Dec. 7.
She denied Bender had been placed on suicide watch and had exhibited “a number of suicide risk factors,” saying the assertions, like many in the complaint, contained “improper legal conclusions and characterizations to which no response is required.”
She denies Rowley and Klahn left Gray “as the lone corrections officer at the jail” and that the city had an established practice of staffing one officer on duty to monitor all inmates — both males and females — except during shift changes.
On Nov. 16, three weeks before she died, Bender attempted to die by cutting herself, according to the complaint. The plaintiffs agree she cut her forearm and deny the other allegations.
They deny — saying they lacked information — that she tearfully complained about Gray to Quileute Tribal Officer Mike Palmer and Tribal Natural Resources Officer Rick Anderson. In the interview, recorded on Gray’s bodycam, Bender said she feared going to the bathroom while Gray was on duty.
They agree she was interviewed Nov. 16 by a Forks police officer and Leask. The lawsuit alleges that during an interview pursuant to the Prison Rape Elimination Act, Bender said Gray sexually tormented her and intended to harm her.
The city defendants agree Bender was interviewed but deny the allegations. They agree that West End Outreach Services (WEOS) was contacted Nov. 16 to provide her with crisis counseling. The lawsuit alleges she reported Gray to WEOS.
In a report to Rowley, Forks Police Officer Jackson Folkner said he believed “Bender is telling the truth,” according to the lawsuit, quoting Folkner’s report.
The lawsuit quotes an internal report issued Nov. 19 by Rowley that says Rowley and Folkner were “unable to find substantial evidence that Officer Gray” violated jail policy. Rowley characterized Gray’s actions as “verbal unprofessionalism,” the lawsuit said, quoting Rowley.
Following the report’s issuance, Gray was “quietly terminated,” according to the lawsuit. Coluccio says Gray’s probationary employment was terminated.
The lawsuit quotes Rowley as saying in the report that there was “no evidence to prove allegations of misconduct” and that Bender’s complaint was “unsubstantiated.” Each report quoted in the lawsuit “speaks for itself,” and the city denies all allegations, according to Coluccio’s answer.
Pearson said she last saw Bender at 3:57 p.m. Dec. 7, according to the lawsuit. Three hours later, at 6:55 p.m., Leask walked into Bender’s cell and found her dead, hanged by a bedsheet, according to Leask, who is quoted in the lawsuit.
Coluccio said Leask’s incident report speaks for itself.
Coluccio denied that Rowley concealed “material facts” concerning Bender’s complaint about Gray and denied he failed to address a risk to her well-being.
“Kimberly’s death by suicide was tragic and could have been prevented by standard approaches to jail management regarding sexual harassment and suicide prevention,” the lawsuit said.
Coluccio denied the assertion.
Gray worked at Clallam Bay Corrections Center, according to the lawsuit. An investigation culminated Oct. 17, 2018 — six months before he was hired at the jail — in the finding that he sexually harassed his CBCC colleagues, the complaint said.
Coluccio denied the assertion for lack of information. She agreed he was hired by the Forks jail on April 12, 2019.
Coluccio denies Gray was an “emergency hire,” that he was unfit for the job and that Klahn knew it.
Reid, 42, said last week she believes city employees knew of Gray’s past and that his coworkers ignored his predatory behavior.
“I wish that she was here every day, and you know, Gray was hired to protect and serve, and he didn’t protect and serve,” she said.
“I feel like he took advantage of vulnerable women, not just my daughter, but several others, and I feel that he’s at fault. I feel that she’d still be here if she didn’t feel like she was worth nothing.”
Reid remembered Kimberly, her first-born, as good-natured, forgiving and generous.
“She would give you the shirt off her back if you needed it, even if she was going to be cold,” Reid said.
Bender’s son Matthew, now 5 years old, is being raised by his father.
A memorial service is scheduled for Feb. 12.
The National Suicide Prevention Hotline is
Senior Staff Writer Paul Gottlieb can be reached at