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Per a judge's order, a lawsuit against Cleveland police Sgt. Brian Carney was allowed to proceed.

(File photo)

CLEVELAND, Ohio – A federal judge has again refused to throw out a lawsuit against a Cleveland police sergeant accused of not providing proper medical care to a drunken driving suspect who had a stroke and later died.

In a 13-page order issued Tuesday, U.S. District Chief Judge Solomon Oliver Jr. wrote that Sgt. Brian Carney is not immune from claims made by the family of Richard Kollin Sr., since there is a genuine dispute over whether Carney was indifferent to Kollin's medical needs.

Kollin was arrested at 8:15 p.m. Oct. 25, 2009 on suspicion of drunken driving. He suffered a stroke right before his arrest.

At about 9:15 p.m., when booking Kollin on the charge, he tried to have Kollin take a breath test, but Kollin "was not able to do so," the order says. Eventually, somebody determined that Kollin should go to the hospital, and a form requesting medical attention says it was filled out at 8:15 p.m.

An ambulance was not called until 9:43 p.m. Kollin died at Metro Health Medical Center on Dec. 15, 2009.

Kollin's son, Richard Kollin Jr., filed suit in 2011. The city of Cleveland and the hospital were dismissed from the suit, leaving Carney as the sole defendant.

In September, Carney asked the judge to dismiss the case, arguing that as a police officer, he has qualified and governmental immunity. Oliver disagreed, though, saying it was clear that Kollin had a "serious medical need" and that the medical request form's time at least suggested that Carney knew that a risk of serious harm existed. Both are prerequisites under federal law to show that an officer is deliberately indifferent to an arrestee's needs.

Carney also tried to show, through declarations from other officers, that the time on the form was a mistake and that reports clearly show that the decision to get medical help was actually made an hour later, at 9:15 p.m.

Oliver rejected that argument as well.

"A jury could still conclude that, if the Referral Form was indeed filled out at (9:15 p.m.), waiting almost thirty minutes to contact EMS when Kollin, Sr. had suffered a medical emergency could constitute deliberate indifference to his medical needs," Oliver wrote.

A spokesman for the city of Cleveland, which is providing representation to Carney, declined to comment on the order.

This is the second time Carney tried — and failed — to have the case against him dismissed. Oliver rejected his qualified immunity argument in 2013, and the 6th U.S. Circuit Court of Appeals upheld it in February 2014.

A jury trial is set to begin on April 23.

Richard Demsey, the attorney representing Kollin's estate, did not return messages left Wednesday and Thursday.