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Roosma v. Pierce County

United States District Court, W.D. Washington, Tacoma

February 8, 2018

JUSTIN ROOSMA and ELIZABETH ROOSMA, Plaintiff,
v.
PIERCE COUNTY, CORRECT CARE SOLUTIONS LLC, PAUL PASTOR, PATTI JACKSON-KIDDER, and DOES 1-500 Defendants.

          ORDER ON (1) DEFENDANT CORRECT CARE SOLUTION'S MOTION FOR SUMMARY JUDGMENT, (2) PLAINTIFFS' MOTION FOR LEAVE TO FILE EXCESS PAGES AND MOTION FOR LEAVE TO FILE 11 MINUTES LATE, AND (3) THE PARTIES' CROSS-REQUESTS TO STRIKE

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before Court on Defendant Correct Care Solution's Motion for Summary Judgment. Dkt. 119. Defendants Pierce County, Paul Pastor, and Patti Jackson-Kidder (“the County Defendants”) filed a Response in support of Defendant CCS' motion and also separately filed a Motion for Summary Judgment[1]. See Dkts. 96, 102. When filing their Response to Defendant CCS' motion, Plaintiffs also filed a Motion for Leave to File Excess Pages and Motion for Leave to File 11 minutes Late. Dkt. 109. Defendant CCS' Reply seeks to strike selections of Plaintiffs' Response, and Plaintiffs' Surreply moves to strike selections of Defendant CCS' Reply. Dkts. 109, 119. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file herein.

         I. BACKGROUND

         A. PRELIMINARY PENDING MOTION AND REQUESTS TO STRIKE

         This case centers on an injury to Plaintiff Justin Roosma while in custody at Pierce County Jail.

         Defendant CCS filed a Motion for Summary Judgment on November 29, 2017, which was renoted to January 26, 2018. Dkts. 77, 88. Defendant CCS withdrew the motion on December 13, 2017, and filed the present Motion for Summary Judgment on January 4, 2018. Dkts. 89, 90. Defendant CCS' summary judgment motions are substantially similar. Compare Dkt. 77 to Dkt. 90.

         The present pending motion, Defendant CCS' Motion for Summary Judgment, seeks summary judgment of dismissal under Fed.R.Civ.P. 56. The motion was originally noted for January 26, 2018, and on January 22, 2018, Plaintiffs filed a Motion for Extension of Time to File Response. Dkt. 97. The Court orally granted Plaintiffs' motion in part at a January 24, 2018 status conference, setting deadlines of January 29, 2018 and February 1, 2018 for the Response and Reply. Dkt. 101.

         Plaintiffs filed a Response on January 30, 2018 at 12:11am. Dkt. 106. At 1:35am, Plaintiffs filed a Motion for Leave to File Excess Pages and Motion for Leave to File 11 Minutes Late, requesting leave to file a brief “up to 10 excess pages” longer than allowed by LCR 7 and late by eleven minutes. Dkt. 109. Plaintiffs filed the “Correct Version” of the Response at 3:04am. Dkt. 113.

         On February 1, 2018, Defendant CCS timely filed its Reply. Dkt. 116. Plaintiffs filed a Surreply on February 1, 2018. Dkt. 119.

         Defendant CCS seeks to strike portions of Plaintiffs' Response. Defendant CCS raises its request in the Declaration of Marc Rosenberg Providing Objections to Plaintiffs' Response to Summary Judgment and Supporting Papers, an attachment to the Reply. The declaration lodges both procedural and evidentiary objections to Plaintiffs' Response. Dkt. 117. On procedural grounds, Defendant CCS moves to strike Plaintiffs' Response because of its length and untimeliness, where Plaintiffs had been given an extra month to properly file their Response. Dkt. 117 at 2. On evidentiary grounds, Defendant CCS moves to strike portions of Plaintiffs' Response as unsubstantiated by the record. Id. at 2-10. Defendant CCS also challenges the declaration of Karen Weill, Plaintiffs' counsel's wife and Legal Assistant, as well as the declarations of Plaintiff Elizabeth Roosma, and Plaintiff Justin Roosma, on multiple evidentiary grounds, inter alia, inadequate foundation and hearsay. Id. at 2-10.

         Plaintiffs' Surreply moves to strike the Declaration of Marc Rosenberg. Dkt. 119. Defendant CCS violated LCR 7(g), Plaintiffs opine, because the declaration was filed as a separate motion to strike, rather than part of the Reply. Dkt. 119. See LCR 7(g) (“Requests to strike . . . shall not be presented in a separate motion to strike, but shall instead be included in the responsive brief[.]”). The Surreply is more than three pages in length. Compare to LCR 7(g)(3).

         At this juncture, both sides have, in one way or another, technically departed from strict observance of Local Court Rule 7. In an effort to reach the merits, neither request to strike should be granted on procedural grounds. To that extent, the requests to strike should be denied, and Plaintiffs' Motion for Leave to File Excess Pages and Motion for Leave to File 11 Minutes Late should be granted.

         The Court declines to reach the merits of each one of Defendant CCS' evidentiary objections, which are numerous. Facts relied upon here are only those substantiated by the record, and the Court has not considered those “facts” based only on counsel's representation. Defendant CCS' request to strike portions of the record for evidentiary reasons should be denied.

         B. FACTS

         Having clarified which facts should be stricken, the Court herein recites the facts supported by the record and relevant to resolving Defendant CCS' motion.

         Mr. Roosma was medically screened at Pierce County Jail on April 28, 2014. Dkt. 81-1 at 4. A Screening Questionnaire signed by Mr. Roosma and a nurse states that Mr. Roosma “does not know names of medications.” Id. at 4-6. Correct Care Solutions faxed a medical release and medication verification form to Rite Aid Pharmacy, which returned the request as “Not verifiable.” Id. at 9. After visiting a mental health provider, Mr. Roosma was given two anti-depressants, Norvasc and Effexor. Id. at 14. Mr. Roosma was released on bail on May 3, 2014. Id. at 21. Mr. Roosma maintains that he was released after having two seizures, caused by an abrupt stop of medications. Dkt. 110 at 3.

         Mr. Roosma was again booked into Pierce County Jail on June 17, 2014. Dkt. 81-1 at 25. A second Screening Questionnaire notes that Mr. Roosma currently takes medication but does not specify the type. Id. at 28. A second medication verification form completed by Rite Aid Pharmacy states that Mr. Roosma received a 60-day prescription on June 10, 2014 for Mirapex, a drug prescribed for restless leg syndrome. Id. at 33. The medication verification form also confirmed other then-current prescriptions, including Prilosec (gastrointestinal) and Effexor (antidepressant). Id.

         A June 21, 2014 healthcare request, or “kite, ” requests “meds” because “I'm really sick due to not having them.” Dkt. 81-1 at 37. Following a second kite, on June 23, 2014, Mr. Roosma received treatment for gastrointestinal issues. Id. at 39, 40.

         On June 26, 2014, Mr. Roosma sent a third kite, stating, “I have a severe case of RSP [sic] (Restless Leg Syndrome) . . . I take Maripax [sic] everyday I can't sleep or rest due to pain from it[.]” Dkt. 81-1 at 45. A signed response by a nurse notes, “Seen 6/27/14.” Id. The same nurse's handwritten notes reflect a June 27, 2014 discussion of Mirapex and a fax to St. Clare Hospital for release of Mr. Roosma's “RLS shoulder pain” records. Id. at 49, 51.

         On July 7, 2014, Mr. Roosma sent a fourth kite. “I was seen about a week ago for my meds . . . I take Maripax [sic] for Restless Leg and I haven't had my meds [and] they are current[.]” Dkt. 81-1 at 54. Mr. Roosma met with a nurse on July 9, 2014 and began taking some medications. Id. The Medication Administration Record, a medical log of medicine given to Mr. Roosma, reflects administration starting on either July 9 or 10, 2014 of Lopid (cholesterol), Effexor (antidepressant), Niaspan (cholesterol), and Prilosec (gastrointestinal medication). Dkt. 117-1 at 20; Dkt. 81-1 at 58.

         On July 11, 2014, Mr. Roosma sent a fifth kite, stating, “I've sent a couple kites out to find out about my Restless Leg medication “MeriPex” [sic] could you Please let me know what the hold up is. I would like to sleep.” Dkt. 81-1 at 60. The comments portion of the kite states, “Seen 7-14-14. Medication not being filled at this time per Carver ARNP.” Id.

         On July 12, 2014, Mr. Roosma sent a sixth kite, stating, “I'm kicking in my sleep! When I sleep, I'm hurting my toes and there [sic] bleeding all over my sheets. . . I really need my RLS MeriPex [sic] to sleep.” Dkt. 81-1 at 62. The comments portion, signed by a nurse, states “appointment already scheduled.” Another kite, sent on either July 10, 2014 or July 18, 2014, states, “I think I broke my foot from kicking in my sleep do [sic] to my RLS Restless Leg. I want my Meripex [sic] I'm really hurting[.]” Dkt. 81-1 at 64. The comment section, which is unsigned, reads, “Seen.” Id.

         On July 21, 2014, at approximately 3am, Mr. Roosma fell from the top bed bunk onto the floor. Mr. Roosma was alone in the room. Mr. Roosma states that he “did not go to sleep until very late” because “they did not allow me to take the Mirapex[.]” Dkt. 110 at 10. Mr. Roosma represents that at some point prior to the fall, he had asked an unidentified person if could sleep on a lower bunk, but “they would not grant me one.” Id. at 8.

         Mr. Roosma states that he is “sure it was my restless leg syndrome (RLS) that caused me to fall out of bed . . . because after going into custody and being cut off of the Mirapex I started feeling the familiar symptoms, severe pain in my legs.” Further, he recalls, “a few days before the fall I had actually suffered injury to my foot and toes kicking the wall in my sleep, [which] leaves no doubt in my mind it was my RLS that caused the fall.” Dkt. 110 at 6.

         When asked at his deposition about self-diagnosing his own medical issues, Mr. Roosma agreed with opposing counsel that he “do[es] not have any medical training that would permit [him] to personally diagnose or treat any serious medical or mental health issues, ” Dkt. 78 at 4, although, he maintains, he is “at the worst end of the range of symptoms” for a person with restless leg syndrome. Dkt. 110 at 11. A doctor first diagnosed Mr. Roosma with the condition in 2008, when he was first prescribed Mirapex, which made a difference “like night and day.” Id. at 8; Dkt. 108-9 at 9. Mrs. Roosma also noticed a difference after Mr. Roosma began taking Mirapex, observing that Mirapex “was a godsend . . . There was no more thrashing [and] [s]udden leg movement ceased.” Dkt. 112 at 3. Since first being prescribed Mirapex, Mr. Roosma reports that his doctor has increased dosage from 1mg to 3mg per day. Dkt. 110 at 10. But compare to Dkt. 108-9 at 2, 8, 9 (.50 mg and .25mg).

         After the fall incident, Mr. Roosma was transported first to Tacoma General Hospital, then to Harborview Medical Center. Dkt. 110 at 8. Mr. Roosma states that he broke his eye socket, suffered a concussion, broke his wrist, and had to have twenty-two stiches on his knee. Dkt. 110 at 9. A radiology report dated July 21, 2014, concludes that an x-ray “showed no fractures besides the left orbital roof.” Dkt. 81-1 at 80, 82. According to the Medication Administration Record, Mr. Roosma was administered Mirapex from July 22, 2014 until July 24, 2014. Dkt. 117-1 at 20. It appears that a single person authorized administration of all medicine for Mr. Roosma. Dkt. Id. According to RN Jonathan Slothower, the nurse on duty when Mr. Roosma fell from his bed, inmates are given medication when “medically necessary, ” a determination made by a doctor or nurse practitioner. Id. at 9, 20.

         Defendant CCS' expert witness, Dr. Scott Bonvallet, medical director of Overlake Sleep Disorders Center, is familiar with distinctions between restless leg syndrome and obstructive sleep apnea. Based on his review of Mr. Roosma's medical records, Dr. Bonvallet has concluded that Mr. Roosma's RLS “was not the cause of, or even a contributor to, his falling out of bed.” Dkt. 80 at 3. According to Dr. Bonvallet, RLS “does not cause individuals to fall out of bed, as the movements are quite subtle[, ]” and the “limb twitching/awakenings from RLS occur during the first few hours of sleep . . . [but] Mr. Roosma fell out of bed at approximately 0300, making it very unlikely that his fall was caused by RLS.” Id. He opines that “there are much more probable explanations to include [Mr. Roosma's] severe obstructive sleep apnea, known history of sleep walking, or he simply fell out of bed.” Id.

         In Mrs. Roosma's experience, “sleep apnea never arose as a practical problem causing restlessness[.]” Dkt. 112 at 3. Mr. Roosma acknowledges his diagnosed sleep apnea, but Mr. Roosma had not been using the “CPAP, ” a respiratory ventilation to aid with sleep apnea, “because I was sleeping so well from the Mirapex.” Dkt. 110 at 10. Mrs. Roosma confirms that Mr. Roosma tried a CPAP without success, but Mirapex “profoundly” helped his RLS symptoms, “from mild irritation to severe kicking.” Dkt. 112 at 4.

         Dr. Bonvallet has also concluded that it was reasonable and within the standard of care for the jail medical providers to not prescribe Miramex. Dkt. 80 at 5. According to Dr. Bonvallet, “I understand that there are substantial reasons to restrict access to such medication in the setting of jail[, ]” and ...


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