United States District Court, W.D. Washington, Tacoma
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
J. BRYAN UNITED STATES DISTRICT JUDGE.
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. 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.
PRELIMINARY PENDING MOTION AND REQUESTS TO STRIKE
case centers on an injury to Plaintiff Justin Roosma while in
custody at Pierce County Jail.
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.
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.
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.
February 1, 2018, Defendant CCS timely filed its Reply. Dkt.
116. Plaintiffs filed a Surreply on February 1, 2018. Dkt.
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.
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
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.
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.
clarified which facts should be stricken, the Court herein
recites the facts supported by the record and relevant to
resolving Defendant CCS' motion.
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.
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).
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.
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
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.
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.
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.
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.
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
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).
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.
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
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.
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 ...