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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ESTATE OF JAMES RUSH,

Plaintiff,

v.

HON. BOBBY HADDOCK, et al.,

Defendant.

CASE NO. 5:10-cv-152-RS

PLAINTIFF’S STATEMENT OF FACTS IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff, JACQUELINE FINN, Personal Representative of the ESTATE OF 

JAMES RUSH, by and through the undersigned attorney, provides this Statement of 

Facts in Opposition to Defendants’ Motion for Summary Judgment, and would show 

as follows:

(The transcripts of the calls based on two sequential audio recordings and filed by 

Defendants as Doc. 26-5 and 26-6 will be referred to as “T1 and T2, followed by a 

space and the pertinent page numbers.)

1. On January 23, 2008, about 12:45 a.m., James Rush, a 79-year-old man who 

suffered from Chronic Obstructive Pulmonary Disease (COPD), called

Washington County 911, and spoke to the operator in a confused and 

rambling way, about wanting to have an officer come out and check on him.

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2. According to the transcript of the calls, Mr. Rush wanted someone to come 

out “so I could get my head back together because I got an appointment in 

the morning for my ride, my transportation, and . . .” at this point the 911 

operator asks for his address and name. (T1 2).

3. Mr. Rush tells Dep. Rackard, “my transportation is coming tomorrow 

morning. And I don’t want to screw it up because I’m laying on the floor 

here.” He said his ride was supposed to come at 7:30 in the morning. (T1 6).

Mr. Rush tells Dep. Rackard that he tried to signal his brother for help: 

“Because I went out and blew the horn, blew the horn, and I put the lights on 

in the car. But he – he must be very, very sick because he’s not – he’s not 

answering the – my distress call.” (T1 6-7).

4. Mr. Rush frequently refers to his confusion, that “I think I got a little 

confused,” (T1 2). He needs a visit “to get me straight a little bit,” (T1 3). “I 

get a little mixed up.” (T2 9). “I’m getting a little feeble-minded.” (T2 11). 

When Defendant Rackard calls him he says, “I’m getting all mixed up.” (T1 

6). When warned he may be arrested if he calls 911, he says, “Oh okay. I’ll 

have to call 911. I don’t want to get arrested. So I’ll call 911 again.” (T2 14).

5. Mr. Rush says “I tried to set up everything in the house in case I fall. That’s 

my big problem. I just don’t want to fall on the floor.” (T1 3). While on the 

phone with Dep. Rackard, he says, “I just don’t know where to turn; do you 

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understand what I'm saying? And if -- if it's possible, I don't care if it takes 

three hours to come out. If -- I don't want to bother you. And if you could 

come out at your time, your leisure, you know, or call somebody that could 

help me, you know. I don't want to fall, okay?” (T1 11-12).

6. After several calls, Mr. Rush stopped calling 911 and started calling the 

Sheriff’s Office. The dispatcher says in a call to Dep. Rackard, “he done 

found the sheriff’s office number now.” She continues, “He ain’t calling 911 

no more. He’s calling the sheriff’s office.” (T1 25-26).

7. Mr. Rush alludes to a problem hearing. (T2-2). When Dep. Rackard tells him 

not to call 911 and Mr. Rush apparently thinks he told him to call 911. At 

another point, speaking to the 911 operator, he doesn’t realize who he’s 

speaking to and says, “if you had hanged up on me, I would have nowhere to 

go. I don’t want to be bothering the 911.” (T2 4-5, 8). Later he says, “I called 

911, but they’re so busy.” (T2 11). After being told to go to sleep, he says, 

“Oh, that’s great then. I’ll just have to wait until 911 calls me back.” (T2 13).

8. Although his conversation touched on a number of subjects, one theme Mr. 

Rush returned to again and again was not wanting to be found on the floor 

the next morning or, more specifically, not wanting to be found on the floor 

dead. He said that his brother was sick and his nephew lived 100 miles away 

and by the time he got there, “I’d be long gone.” (T2 6, 19).

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9. Mr. Rush tells the dispatcher, “I’ll just have to sweat it out till – I’ll just lay on 

the couch and then wait for somebody.” And “I’m sick, you know. Okay.” 

The dispatcher replies, “All right.” (T2 15). Later he says, “Oh God I’m sick. 

Oh God, help me. I keep holding this phone until somebody comes out. You 

know, I won't take the phone off the hook, and then I'll make sure that if 

they can't call me, they'll come out and look and take a peek in at me and see 

me on the floor. I don't want to be on the floor. (T2 16).

10. Though his conversations with the 911 operator touched on mundane 

subjects, he sounded troubled and afraid. At one point, Mr. Rush said to the 

911 operator, “No wait, no wait. I just want to tell you that before you hang 

up on me. All right, because I’m getting a little desperate, pretty near 

desperate.” (T2 19). At another point he said, “I don’t want to be on the floor 

here and my brother say – you know, dead or something and he’d say, 

“Christ, why didn’t you call 911?” (T2 19).

11. After numerous such calls, totaling nearly an hour, and two welfare checks by 

Deputy Rackard, Rackard ordered Mr. Rush to be arrested for misuse of 911.

Dep. Rackard did not smell alcohol and said Mr. Rush wasn’t staggering. 

(Deposition of Jonathan Rackard, p. 12, 16, 19). Mr. Rush’s speech was not 

slurred. (Rule 30(b)(6) Deposition of Jonathan Rackard, p. 8). He recalls only 

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telling Dep. Stone that Mr. Rush had been drinking, not that he was drunk. 

(Exhibit A, Deposition of Jonathan Rackard, p. 27).

12. James Rush stated, “I thought maybe the policeman would find out it's an 

emergency and then he wouldn't arrest me, you understand, because I don't 

want to bother my brother, you know.” (T2 24). A few minutes later, Deputy 

Stone was there to arrest Mr. Rush (T2 28).

13. Dep. Stone arrived at Mr. Rush’s home at about 5:54 a.m. On the in-car video 

camera installed in Dep. Stone’s patrol car, Mr. Rush is seen slouching low on 

his couch, gasping for air. Dep. Stone pulls Mr. Rush off the couch and lets 

him go just off camera, presumably on the floor. Later Stone returns and puts 

Mr. Rush back on the couch. (Exhibit B, Dep. Stone’s In Car Video 

Recording).

14. Dep. Stone did not think Mr. Rush was drunk. (Exhibit C, Deposition of 

Frank Stone, p. 22). He could have issued a notice to appear but felt he was 

bound to take Mr. Rush to jail because he was ordered to do so by his 

“commanding officer,” Dep. Rackard. (Exhibit C, Deposition of Frank Stone, 

p. 6). Dep. Stone noticed oxygen tanks in the home and placed one of them, 

which was attached to tubing and breathing apparatus, into the trunk for the 

ride to the jail.

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15. When Mr. Rush learned that he was to be arrested and taken to jail, he stated, 

according to Deputy Stone, “No, no . . .” and told Dep. Stone he no longer 

needed him. Dep. Stone said he had to call for assistance because of Mr. 

Rush’s being “uncooperative.” (Exhibit C, Deposition of Frank Stone). Mr. 

Rush is seen on the in-car video being supported on either side by Dep. Stone 

and Dep. Smith. (Exhibit B, Dep. Stone’s In-Car Video Recording). 

16. Mr. Rush was taken to the Washington County Jail where he collapsed and 

died in a holding cell. Shortly thereafter, the dispatcher received a call as 

follows:

UNIDENTIFIED FEMALE SPEAKER: Yes, rna' am. This is Ed Rush and 

this is Jane Pruitt. We are trying to find his brother, James Rush.

FEMALE DISPATCHER: Okay. And you are?

UNIDENTIFIED FEMALE SPEAKER: I am the lady that transports him 

to the doctor. And I came out to take him to Dr. Hatcher's this morning for 

an 8:00 appointment. And me and his brother both -Mr. Rush is hunting him 

all over this place.

(T2 39).

17. On another line, the dispatcher and another official discuss what they will be 

able to tell Ms. Pruitt, the woman who was to transport Mr. Rush to the 

doctor that morning. The dispatcher said, “Well, he’s been calling 911 100 

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times since 1:00 this morning.” The second person says, “There may have 

been a reason. I don’t know.” The dispatcher replies, “Yeah. Could have 

been. Don’t know.” (T2 42).

18. Mr. Rush had no criminal record and had no experience with the 

machinations of the criminal justice system. All indications are that he was 

terrified by the process

19. There is some question about the fierceness of Mr. Rush’s resistance to arrest. 

Deputy Smith, who Deputy Stone summoned for assistance, testified that 

Stone told him he needed help because of Mr. Rush’s frail condition.

(Deposition of Gary Smith, filed by Defendants as Doc. 28-1, p. 13).

20. As to whether Mr. Rush was intoxicated or seemed to be intoxicated at the 

time of his arrest, the laboratory tests indicated a .023 alcohol level, less than 

one-third Florida’s threshold of impairment. The Medical Examiner, Dr. 

Snider, said that would be consistent with having one beer in the preceding 

few hours and would be a pretty accurate snapshot of Mr. Rush’s alcohol 

level since his body was refrigerated at death and there would have been little 

change. (Exhibit D, Deposition of Cameron Snider, pp. 78, 84). Deputy 

Smith smelled no alcohol on his person but thought he might be intoxicated 

because he seemed happy although he was going to jail. (Deposition of Gary 

Smith, filed as Doc. 28-1, p. 34).

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21. James Rush died of a cardiac event brought on by oxygen starvation or 

“anoxia.” The Medical Examiner, Dr. Cameron Snider, stated there was a 

“diffuse edema” in the brain caused by a lack of oxygen to the brain. (Exhibit 

D, Deposition of Cameron Snider, p. 64-68, 72-74).Plaintiff’s expert agreed 

oxygen starvation was the critical factor in the death. (Exhibit E, Expert 

Report of L.J. Dragovic, M.D.). Mr. Rush stated as he was led from the car 

that he was short of breath. (Exhibit F, Deposition of Billy Brock, p. 19).

22. Defendants’ expert claimed a “diffuse edema” did not necessarily mean 

oxygen starvation where there had been vigorous efforts to resuscitate a 

decedent. Though the Defendants’ expert did not explain, an inference could 

be drawn that he meant an edema could be caused by head trauma resulting 

from the resuscitation process. Medical Examiner Snider made clear there 

was no evidence of trauma to the head. (Exhibit D, Deposition of Cameron 

Snider, p. 72-74).

23. The Medical Examiner testified that stress would have aggravated Mr. Rush’s 

condition and his need for oxygen. (Exhibit D, Deposition of Cameron 

Snider, p. 78-79). The Deputies had placed Mr. Rush’s oxygen in the trunk of 

the patrol car, out of his reach. After their Academy Training, Deputies had 

no particular medical training, other than CPR. (Deposition of Gary Smith, 

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filed as Doc. 28-1, p. 32). The Deputies did not take Mr. Rush to a hospital or 

call medical staff to meet them at the jail.

24. Numerous customs and practices were implicated in Mr. Rush’s death:

a. The Sheriff’s Dispatcher, who handled 911 calls, had no particular training 

to assist her in determining a caller’s mental condition. (Exhibit G, 

Deposition of Jennifer Cate, p. 23). Although Mr. Rush complained that 

he was desperate and feared being found dead on the floor of his home, 

the Dispatcher did not alert deputies conducting the welfare checks or 

going out to arrest him as to his fear of death or the likelihood that he had 

a health emergency. (Exhibit A, Deposition of Jonathan Rackard, p. 15).

b. The Sheriff had a policy of undertaking to conduct welfare checks but the 

officers who conducted the checks had no particular training, other than 

standard law enforcement training, on which to base decisions about the 

well-being of the subjects of the checks. (Deposition of Gary Smith, filed 

as Doc. 28-1, p. 34). Deputy Rackard spoke to Mr. Rush from the 

doorway. He did not go in the home and did not observe the oxygen tanks 

or any other indicators of a serious health condition. He saw a glass of 

beer and noted Mr. Rush’s confusion. (Exhibit A, Deposition of Jonathan 

Rackard, p. 10, 15, 18).

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c. When Mr. Rush was brought to the jail in a fragile state of health, no 

medical assistance was requested although his status had changed from an 

arrestee to a person committed under the Marchman Act, an involuntary 

civil commitment based on danger from substance abuse. (Exhibit C, 

Deposition of Frank Stone), (Exhibit A, Deposition of Jonathan Rackard, 

p. 25). Jail nurse Hazell testified that there was no policy or training for 

evaluation by trained medical staff at booking. (Exhibit H, Rule 30(b)(6) 

Deposition of Judy Hazell, p. 3-4), (Exhibit I, Deposition of Judy Hazell, 

p. 9). Mr. Rush was hooked up to his oxygen but otherwise virtually 

abandoned. (Exhibit J, Video of Washington County Jail Booking Area).

d. The booking desk was unmanned during much of Mr. Rush’s 25 minutes 

in the booking area holding cell. The Washington County Jail did not 

normally have a permanent designated booking officer. Rather, the job 

was undertaken by an officer who was available for a period of time but

who might leave the area to do other tasks with or without a replacement. 

(Exhibit K, Deposition of Karla Brock, p. 4). Minutes before his death, 

Mr. Rush is seen on video walking slowly to the holding cell door as if 

trying to summon assistance. Finding no one, he returns to his bench and 

collapses a few minutes later. (Exhibit J, Video of Washington County Jail 

Booking Area).

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25. The above policies and practices are causally-related to Mr. Rush’s death 

because he died of oxygen starvation, a state a reasonable jury could ascribe 

to his having been transported without access to his oxygen in what would 

have been a stressful trip to jail. When the Jail’s sole medical staff person 

arrived at Mr. Rush’s cell, he had no pulse although a weak pulse started up 

though CPR it was quickly lost and did not recur. There was no heart beat 

sufficient to trigger the Automated External Defibrillator (AED). (Deposition 

of Judy Hazell, p. 10-27). Ironically, in the minutes after his collapse, a 

community health worker was at his home looking for Mr. Rush to take him 

to his doctor’s appointment that morning. (T2 39).

26. The Defendant Sheriff learned of the incident while it was unfolding and 

intervened to change Mr. Rush’s status from an arrestee to a person who was 

being temporarily involuntarily civilly committed on the basis of a concern 

that his life was endangered by abuse of alcohol or drugs. However the 

Sheriff did not arrange for medical staff to be present to evaluate Mr. Rush or 

request any other special arrangements to be made at the Jail. (Exhibit L, 

Deposition of Sheriff Bobby Haddock, p. 11, 22-23).

Respectfully submitted,

s/ James V. Cook___________

JAMES V. COOK

Florida Bar Number 0966843

314 West Jefferson Street

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Tallahassee, Florida 32301

(850) 222-8080; 561-0836 fax

Attorney for Jaqueline Finn

I CERTIFY the foregoing was filed electronically on 5/31/2011 and that the person 

noted below is registered to be notified by the CM/ECF electronic mail system:

Keith Tischler

Jolly & Peterson, P.A.

Post Office Box 37400

Tallahassee, FL 32315

s/James Cook____________________

JAMES V. COOK

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