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Atem v. County of Lancaster

United States District Court, D. Nebraska

July 11, 2016

AROK ATEM, Plaintiff,
COUNTY OF LANCASTER, et al., Defendants.


          Richard G. Kopf Senior United States District Judge

         This is a 42 U.S.C. § 1983 and state-law negligence action originally brought on January 23, 2013, against Lancaster County, Nebraska, and several of its correctional administrators, supervisors, policymakers, officers, specialists, and nurses for their alleged deliberate indifference[1] to Plaintiff's medical needs during his incarceration on April 30 and May 1, 2011.


         According to the operative complaint-Plaintiff's June 22, 2015, Fourth Amended Complaint (Filing 232)-Plaintiff was being evaluated for psychiatric illness and minor abrasions at BryanLGH Medical Center West in Lincoln, Nebraska, on April 29, 2011. During the evaluation, Plaintiff was combative, agitated, and confused; argued with non-existent people; and expressed suicidal and hallucinatory thoughts. After Plaintiff threw a telephone and computer monitor, Plaintiff was arrested and booked into the Lancaster County Intake & Detention Center. Plaintiff claims that when he left BryanLGH, he was ambulatory and showed no signs of neurologic injury.

         The booking officer at the Lancaster County Intake & Detention Center documented Plaintiffs statements that he had left-leg pain and needed asthma medication, but did not record anything about Plaintiff claiming he was numb below the waist and had a "big problem with [his] neck, " as defendant Stacy Ruiz, LPN, asserts. Plaintiff was first placed in a holding cell where he was observed wrapping a t-shirt around his neck, making suicidal statements and gestures, and smearing feces and urine on his body to get "rid of bad sprits." (Filing 232 at CM/ECF p. 4.) Based on these observations, some of the defendants removed Plaintiff from his cell, during which Plaintiff went limp and dropped to the floor. He was lifted from the floor, placed in a therapeutic restraint chair, and rolled into a suicide-observation cell, where Plaintiff continued to yell unintelligible statements at unseen people.

         Plaintiff alleges that none of the defendants performed a suicide-behavior assessment, summoned a corrections specialist to do a mental-health assessment, or contacted a nurse to do a medical assessment on Plaintiff. Defendants also allegedly failed to remove water and urine from the holding-cell floor and left Plaintiff lying on the cell floor without medical or mental evaluation for 36 hours, despite having observed Plaintiffs lack of movement and his statements that he could not sit up or move.

         Plaintiff was then transported to BryanLGH Medical Center East, where he was diagnosed with a multilevel fracture to his cervical spine with a complete cord lesion and then underwent spinal surgery. Plaintiff is now quadriplegic. Contrary to defendant Stacy Ruiz's contention that Plaintiff must have sustained his spinal fracture before his arrival at the Lancaster County Intake & Detention Center, Plaintiffs spinal surgeon opined that the nature of Plaintiffs injury "would ordinarily paralyze a patient immediately, " making ambulation unlikely. (Filing 232 at CM/ECF p. 10.)

         In Plaintiffs motion for leave to file a Fourth Amended Complaint, Plaintiffs counsel specifically stated that "[Plaintiff] is withdrawing allegations that any individual Defendant caused his cervical fracture, after [Plaintiff]'s best efforts to identify discoverable information on this point." (Filing 209 at CM/ECF p. 2.) The Fourth Amended Complaint alleges that none of the defendants have "identified how [Plaintiff] sustained his spinal cord injury, " and that Plaintiff "is amnesiac and mentally ill and is incompetent to recall and describe how he sustained injury." (Filing 232 at CM/ECFp. 11.) In addition, portions of video footage of Plaintiff s incarceration are missing, as is medical information. Accordingly, Plaintiffs request for compensatory damages does not include medical expenses and is explicitly limited to payment for "physical and mental pain and suffering during his incarceration on April 30 and May 1, 2011, " "delay in arresting progression of the spinal cord lesion" if Plaintiff indeed was injured before he entered the detention center, and violation of Plaintiffs constitutional rights; punitive damages; attorneys' fees; and costs. (Filing 232 at CM/ECF p. 23.)


         A. NDHHS's Involvement

         On April 1, 2013-a little over two months after Plaintiff filed this lawsuit-the Nebraska Department of Health and Human Services ("NDHHS") sent to Plaintiffs counsel a Notice of Subrogation and Assignment which stated that because Plaintiff had filed an application for medical benefits under the Nebraska Medical Assistance Program, NDHHS had a statutory right to subrogation as to "every claim or right which the applicant may have against a third party when such right or claim involves money for medical care." (Filing 310-1 at CM/ECF p. 6.) Specifically, Plaintiff s application for benefits constituted an automatic assignment of rights "to pursue or receive payments from any third party liable to pay for the cost of medical care and services arising out of injury, disease, or disability of the applicant or recipient of medical benefits." (Id.) As of the date of this notice, the "amount subrogated" according to NDHHS was $389, 063.89.

         After two years of discovery and multiple amended complaints, Plaintiffs counsel advised NDHHS and other lienholders by letter dated September 2, 2015, that the Fourth Amended Complaint was "not seeking damages for medical expense (past or future) or disability (past or future). . . . We are only seeking damages for 44 hours of physical and emotional pain and suffering, to include the suffering precipitated by untreated mental illness (which he had upon his arrival to the jail) and compounded by his physical injury." Counsel included a copy of the Fourth Amended Complaint with the letter. (Filing 310-1 at CM/ECF p. 9.)

         A lawyer from NDHHS responded by letter on September 29, 2015, indicating NDHHS's interest in "discuss[ing] . . . amending the complaint to pursue medical claims." (Filing 310-1 at CM/ECF p. 12.) In a subsequent telephone conversation between Plaintiff s counsel and NDHHS's counsel regarding NDHHS's request that the Fourth Amended Complaint include a claim for past medical expenses, Plaintiffs counsel indicated that she "had originally included such a claim in the first Complaint, but... [she] had dismissed it" because "the course of extensive discovery had revealed evidentiary challenges in proving that Defendants caused or contributed to the cervical fracture which led to [Plaintiffs] spinal cord injury." (Filing 310-1 at CM/ECF p. 3.)

         The NDHHS lawyer stated that he would "get back" to Plaintiffs counsel "whether NDHHS agreed with [her] assessment of the evidence developed to date." (Id.) NDHHS did not further communicate with Plaintiffs counsel until a December 8, 2015, hearing in Lancaster County Court on Plaintiff s Petition to Establish a Special Needs Trust.[2] (Id.)

         B. Settlement

         On October 29, 2015, all parties except defendant Stacy Ruiz, LPN, reached a settlement, which was approved by Magistrate Judge Zwart. (Filing 297, Sealed Transcript of Settlement Conference.) The parties stated on the record that:

Number one, plaintiffs cervical fracture occurred while he was incarcerated at the Lancaster County Correctional Center on April 30th or May 1st, 2011.
Number two, the cervical fracture was not caused by any of the settling defendants. The cause and effect of Arok's cervical fracture, paralysis, and other related issues are not elements of damages.
Number three, Arok's claimed damages are limited to, number one, damages for pain and suffering during the actual period of incarceration on April 30th and May 1st, 2011. Number two, punitive damages. And, number three, attorney's fees, expenses, and costs as permitted by federal law.
From the settling defendants only, Arok is not claiming and may not recover any other type of special, general, or economic damage, including damages for future medical expenses.

(Filing 297 at CM/ECF p. 14 (spacing altered).)

         Further, Magistrate Judge Zwart ordered that the settlement funds be placed into a special needs trust for Plaintiffs care. (Id. at CM/ECF p. 21.) NDHHS did not ask to participate in the settlement conference.

         C. Complaint ...

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