United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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 to Plaintiff's medical needs during
his incarceration on April 30 and May 1, 2011.
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
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.
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.
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.
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.
NDHHS's INVOLVEMENT, SETTLEMENT, AND COMPLAINT IN
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.
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.)
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.)
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. (Id.)
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
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
(Filing 297 at CM/ECF p. 14 (spacing altered).)
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.