1

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 COMBINED RESPONSE TO DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

Plaintiff, JACQUELINE FINN, Personal Representative of the ESTATE OF 

JAMES RUSH, by and through the undersigned attorney, responds to Defendants‟ 

Motion for Summary Judgment, and would show as follows:

James Rush, Plaintiff‟s decedent, died of a cardiac event brought on by oxygen 

starvation (anoxia). He had appealed to Defendants for help through repeated 911 

calls, stating he was desperate and was afraid he would be found dead on the floor of 

his home. Deputies went to his home but failed to investigate the cause of his distress. 

Later that morning he was arrested for misuse of 911, which arrest was changed to a 

“Marchman Act” commitment, a temporary civil commitment on a suspicion of selfendangerment by substance abuse. Defendant Sheriff provided no particular training 

to dispatchers and deputies in how to do wellness checks and no medical staff was 

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available at the jail to evaluate the decedent. Decedent had no access to his oxygen 

during his transport to the jail. The booking area was deserted for a critical time when 

the decedent unsuccessfully tried to summon jail staff and then collapsed and died. 

Medical staff arrived too late to restore a heartbeat through CPR or the Automated 

External Defibrillator (AED).

Defendants argue as follows:

A. Plaintiff has not established liability in the individual officers.

B. Absent individual liability, there can be no official liability.

C. Plaintiff cannot establish that the Sheriff was personally involved, ignored 

widespread abuses, or deliberately indifferent to risk.

D. Plaintiff has not established liability except as to simple negligence.

E. The Court should decline to exercises supplemental jurisdiction.

MEMORANDUM OF LAW

A. Liability of Jonathan Rackard and Frank Stone

The individual officers, Dep. Jonathan Rackard and Dep. Frank Stone, were 

deliberately indifferent to the serious medical needs of James Rush. The officers had 

notice of his medical condition both in his words and in his evident physical condition. 

Mr. Rush‟s confusion was palpable in his conversations with Rackard.

Dep. Rackard was on notice that Mr. Rush had a serious medical condition. Mr. 

Rush told him he had a medical appointment in the morning. He said that he was afraid 

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he‟d be found on the floor. Dep. Rackard stated that he made two visits to Mr. Rush‟s 

home and spent a total of 37 minutes there but said he never entered the room. He 

claimed not to have seen oxygen tanks. He did not smell alcohol although he saw a glass 

of beer and two empty containers. He said Mr. Rush‟s speech was not slurred. He was 

not staggering. Dep. Rackard did not recall telling Dep. Stone that Mr. Rush was 

intoxicated but only that he had been drinking.

At the time of his actual arrest by Dep. Stone and Dep. Gary Smith, a video 

camera in Stone‟s patrol car shows Mr. Rush sitting low on his couch and visibly 

gasping for air.1 Oxygen tanks were in the room and were noticed by Dep. Stone but he 

made no effort to place the breathing apparatus on Mr. Rush who appeared feeble and 

confused. Dep. Stone stated that he had no discretion not to arrest Mr. Rush because 

his “commanding officer,” Dep. Rackard, ordered that Rush be arrested.

The Defendant Officers fault Plaintiff‟s decedent, for not telling them clearly 

that he needed access to his oxygen and that he needed to go to the hospital. They say 

he didn‟t seem to be out of breath as he moved around. However that claim is clearly 

contradicted by Dep. Stone‟s in-car video of Mr. Rush gasping for breath on his couch.

At about 1:17 a.m. on January 23, 2008, Dep. Rackard went to the home to do a 

welfare check on Mr. Rush at his request. Dep. Rackard did not go inside. He stood at 

the door, 10-12 feet away from Mr. Rush and did not go inside. He did not smell 

 

1 Dep. Stone zooms the in-car camera in on Mr. Rush through the open door so that it is possible to 

see with great clarity every labored breath that he takes, and the frailty he displays as his is physically 

supported by the two officers on the trip to the car.

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alcohol. He saw a full glass of beer and a couple empty containers.

Mr. Rush told Dep. Rackard that he had a doctor‟s appointment in the morning 

and that someone would be coming to pick him up. Rackard did not say that he made 

any inquiry about the reason for the medical visit. Dep. Rackard said Mr. Rush 

expressed a fear of ending up on the floor. He did not recall if the dispatcher told him 

about Mr. Rush‟s concern about being found dead.

Dep. Rackard said he returned to the home at 4:20 a.m. and left at 4:32 a.m. 

Again, he didn‟t enter the home but stood in the doorway. He said he warned Mr. Rush 

about calling 911 and the possibility he could go to jail. Dep. Rackard would have 

known that Mr. Rush was confused and there is ample evidence that there was an 

emergency. There was substantial evidence that Plaintiff‟s decedent was reaching out 

for help as a result of an urgent fear of impending death and that because of his 

confusion and basically unassuming nature, he was unable to confront the subject 

directly. At different times, though, he said he was desperate and feared being found on 

the floor dead the next morning, and showed great nervousness. As such, there was an 

emergent reason for his calls which obviates probable cause. 

Decedent‟s alcohol level at the time of his death – .023 – was consistent with his 

having one or two beers in the preceding hours. Family members say Mr. Rush was not 

a heavy drinker. The medical examiner said the low alcohol level would have been a true 

picture of his blood alcohol level at his arrest and death 90 minutes later since his body 

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was refrigerated immediately after death. (Deposition of Cameron Snider). 

Arresting officers noted evidence that Mr. Rush needed oxygen but threw the 

oxygen tank in the trunk rather than keeping it with Mr. Rush in the back seat. By the 

time he got to the jail he was complaining about his inability to breathe.

A sheriff‟s in-car video recording that was not disclosed until very late in this 

litigation, Mr. Rush is seen in his living room sitting low on his couch and visibly 

gasping for breath just prior to being taken to the patrol car. At some point, Dep. Stone 

is seen pulling him from the couch and letting to of him just out of sight, presumably 

on the floor. In a few minutes he comes back and pulls Mr. Rush back onto the couch. 

The audio track is missing from the video clip. Dep. Stone said his microphone was 

broken and that he had previously known it was broken but had not gotten it fixed. As 

Mr. Rush is led from his apartment, it is clear on the video how weak he is.

A factfinder may conclude that an officer knew of a substantial risk from the 

very fact that the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 

1981, 128 L. Ed. 2d 811 (1994).

B. Qualified Immunity. 

Once it is established that a law enforcement officer is acting within his 

discretionary authority when the alleged violation of civil rights occurred, the burden 

shifts to the plaintiff to show that the conduct violated a constitutional right. Hadley v. 

Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). 

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There is ample evidence that Plaintiff‟s decedent needed the care Plaintiff

claims was denied. Dr. Dragovic, Plaintiff‟s expert, testified that, in his expert opinion, 

Mr. Rush died of a cardiac event brought on by anoxia. This corresponds with a 

denial of oxygen by Defendants during his trip to the jail. This evidence is certainly 

enough to allow the jury to conclude that Mr. Rush needed care that was denied.

The Defendants simply deny that they were on notice that Mr. Rush needed 

access to his oxygen or any kind of specialized care. They do not claim that they 

provided the needed care. Evidence exists that would allow a jury to conclude that the 

defendants knew of these needs. The in-car video shows Mr. Rush gasping for breath 

in his home just before he is to be taken to the jail. A jury could infer that this 

constitutes deliberate indifference to Mr. Rush‟s health needs.

Plaintiff has produced adequate proof to allow a reasonable jury to conclude 

that Mr. Rush had serious medical needs, and that the defendants knew of those 

needs. Whether the defendants acted with deliberate indifference to Mr. Rush‟s needs 

is a question of fact for the jury. Thus, the Defendants Rackard and Stone are not 

entitled to qualified immunity.

A. Official vs. Individual Liability. 

There is a strong basis for individual liability in this case but even if there were 

not, there are circumstances in which an official capacity defendant could be liable 

where his subordinates were not liable. Official capacity defendants could have a basis 

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for liability in their greater duty to train and supervise and in a greater store of 

information giving rise to deliberate indifference. As the Eleventh Circuit held in 

Anderson v. City of Atlanta, even where a jury found no liability in the individual officers, 

local government could still be found liable. The court stated:

[t]he language of § 1983 “plainly imposes liability on a government that, under 

color of some official policy, „causes' an employee to violate another's 

constitutional rights.” Monell, 436 U.S. at 692 [98 S.Ct. at 2036]. Although the 

acts or omissions of no one employee may violate an individual's constitutional 

rights, the combined acts or omissions of several employees acting under a 

governmental policy or custom may violate an individual's constitutional rights.

Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985), quoting Garcia v. Salt Lake 

County, 768 F.2d 303, 310 (10th Cir.1985) (quoting Monell v. New York City Dept. of Social 

Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Monell and its progeny do 

not require that a jury must first find an individual defendant liable before imposing 

liability on local government. Id.

B. Sheriff’s liability. 

Sheriff Haddock is sued in both his personal and official capacity. In his personal 

capacity, his liability depends on what he knew and did personally. In his official 

capacity, his liability is in the nature of municipal liability. The Supreme Court held in 

City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), that 

a municipality cannot be subjected to § 1983 liability “based upon theories akin to 

respondeat superior.” Tuttle, supra, 105 S.Ct. at 2433. Thus, only deprivations arising from 

municipal custom or policy can result in municipal liability. Id.; see also Monell v. New 

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York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); 

Gilmere v. City of Atlanta, 774 F.2d 1495, 1503 (11th Cir.1985) (en banc). When an injury 

is inflicted as the result of governmental policy or custom, the government is 

responsible under § 1983. Monell, supra, 436 U.S. at 694, 98 S.Ct. at 2037. Anderson v. City 

of Atlanta, 778 F.2d 678, 685 (11th Cir. 1985).

Plaintiff does not argue that the policies that proximately caused the death of 

James Rush were those of the officers, Defendants Rackard and Stone, or that they 

were part of a pattern of widespread abuse that resulted in the deaths of other inmates. 

Plaintiff argues that the policies of the Washington County Sheriff and in effect at the 

Washington County Jail were substantially certain, sooner or later, to result in the death 

of a vulnerable adult such as Mr. Rush.

The Sheriff had a policy of doing “welfare checks” on persons who were 

apparently in distress and the initial visits to Mr. Rush was such a welfare check. There 

was no training for persons who did welfare checks on issues like medical conditions 

that can cause distress. Neither was there particular training for a dispatcher, like 

Jennifer Cate, to recognize the desperation of her repeat 911 caller.

Defendant Rackard never entered the home and did not look for causes of 

distress and was not trained to do so. The jail was contacted and a wheelchair was 

requested. The officer was told none were available. Medical staff came on duty at the 

same time Mr. Rush arrived at the jail but was not requested to be present. There was 

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no policy or training to make these things available. There was virtually no staff on duty 

in the booking area when Mr. Rush was brought in. There was no permanent 

designated booking officer and the job was handled by whoever was available. At some 

point, a few minutes before his collapse, he is seen on video tape walking slowly up to 

the holding cell door, trying to attract someone‟s attention. 

This is not a case like Davis v. DeKalb County School Dist., 233 F.3d 1367 (11th Cir. 

Ct. App. 2000), in which the policymaker investigated claims of wrongdoing by a 

teacher accused of sexual abuse and despite his conclusion that the claims were 

unfounded, made efforts to monitor the teacher. 

1. Liability does not depend on a showing of multiple jail deaths

It is not necessary to the liability of the Washington County Sheriff to show that 

a pattern of deaths resulted from understaffing and lack of training at the Washington 

County Sheriff‟s Office and at the Washington County Jail. The understaffing and lack 

of training which was the proximate cause of the death of Mr. Rush was not in itself 

an isolated incident. See Anderson, supra, at 685-86 (understaffing at jail was not an 

isolated incident but a persistent problem).

As Defendants conflate personal with official liability, they also conflate two 

kinds of causal links between a policymaker‟s acts or omissions and an injury. They 

conflate the requirement of showing widespread abuse with a showing that the 

policymaker maintained standing policies that made the injury substantially certain to 

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occur. Defendants admit that there was no policy to take persons in Mr. Rush‟s 

condition to the hospital rather than to jail. However there were no provisions in place 

for persons showing serious health problems to get adequate treatment at the jail. And 

there was no one there to evaluate or monitor Mr. Rush.

To give the intended meaning to Depew, it is true that “[n]ormally random acts or 

isolated incidents are insufficient to establish a custom or policy. Depew v. City of St. 

Marys, Georgia, 787 F.2d 1496, 1499 (11th Cir. 1986) citing Bennett v. City of Slidell, 728 

F.2d 762, on rehearing, 735 F.2d 861 (5th Cir.1984) (en banc). However the minority of 

situations is that discussed in City of Oklahoma City v. Tuttle, 471 U.S. 808, 821, 105 S. Ct. 

2427, 2435, 85 L. Ed. 2d 791 (1985), where Justice Rehnquist wrote that Monell 's

“policy or custom” requirement “was intended to prevent the imposition of municipal 

liability under circumstances where no wrong could be ascribed to municipal 

decisionmakers.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 821, 105 S. Ct. 2427, 2435, 

85 L. Ed. 2d 791 (1985). In other words, “one bad apple” in a law enforcement agency 

would not be sufficient to impose liability. Id.

In Monell, the Court held that “it is when execution of a government's policy or 

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 

said to represent official policy, inflicts the injury that the government as an entity is 

responsible under § 1983.” Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38 (emphasis 

added). In Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), a 

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plurality of the Court held that “a single incident of unconstitutional activity is not 

sufficient to impose liability under Monell, unless proof of the incident includes proof 

that it was caused by an existing, unconstitutional municipal policy, which policy can be 

attributed to a municipal policymaker.” Id. at 823-824, 105 S.Ct. at 2436 (emphasis 

added). In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 

(1986), the Court held that municipal liability may be imposed for a single decision made 

by a municipal policymaker.

The policies of the Sheriff here are like those in Monell compelling pregnant 

employees to take mandatory leaves of absence before such leaves were required for 

medical reasons. As Rehnquist notes in City of Oklahoma, “this policy in and of itself

violated the constitutional rights of pregnant employees by reason of our decision in 

Cleveland Board of Education v. LaFleur, [citation omitted].” City of Oklahoma City v. Tuttle, 

471 U.S. 808, 822, 105 S. Ct. 2427, 2435, 85 L. Ed. 2d 791 (1985). In such a case, there 

is no requirement to show repeated injuries by reason of the policy application.

2. Inadequate training

Sheriff Haddock had a policy that his dispatcher would take 911 emergency calls 

but did not offer the dispatcher training to discern the kind of medical problems that 

might attend confusion in an elderly caller that gave rise to his distress. The Sheriff had 

a policy that patrol officers would undertake to conduct welfare checks but did not 

provide the officers with training to discern medical problems once they made contact 

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with the subject of the check. Defendant Sheriff had a policy to take persons in 

decedent‟s position to jail, either as an arrest or a civil commitment, but did not provide 

the training to determine whether the person would go to the jail or the hospital. Nor 

was there a trained booking officer on duty in the booking area with the training to 

make that call when Mr. Rush arrived there. The Sheriff offered no such training and 

there was no testimony that the training was offered by the Training Academy.

Here, the policies are those of the Sheriff himself and not of errant deputies.2It 

was not a distortion of the Sheriff‟s policy for the agency to undertake welfare checks 

without particular training in assessing situations that give rise to distress in elderly and 

vulnerable adults. The Sheriff, through his Jail Administrator, not a freelancing 

corrections officer, created the “musical chairs” system for the jail booking officer that 

left the position empty when Mr. Rush was at the cell door trying to get help and for 

the time it took for him to collapse and die on the cell floor.

Where failure to train is alleged by a § 1983 plaintiff, municipal liability will be 

found only if a constitutional violation is part of a pattern of misconduct or where 

there is essentially a complete failure to train the police force, or training that is so 

reckless or grossly negligent that future police misconduct is almost inevitable or would 

properly be characterized as substantially certain to occur. Denning v. Metropolitan 

 

2 Defendant Haddock had good reason to be concerned about repeated incidents involving Deputy 

Jonathan Rackard, whose actions as recounted in Powell v. Haddock and Buckley v. Haddock, before this 

Court, violated an arrestee‟s civil rights (Defendant Haddock apparently refers to Buckley as Beasley

and claims the Eleventh Circuit found no constitutional violation. (Haddock MSJ, p.6, n.1). In fact, a 

majority of the panel said there was, but a different majority found qualified immunity.)

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Government of Nashville, 564 F.Supp.2d 805 (M.D. TN 2008).

Clearly, a policymaker, to be held liable for deliberate indifference, must have 

notice of facts that give rise to an inference of a risk of serious harm. That notice may 

be frequent wrongdoing by his officers or it may be instituting or failing to institute a 

policy or a failure to train that makes an injury substantially certain to occur.

In City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 

(1989), a detainee brought a civil rights action for a failure to provide her with necessary 

medical attention while she was in custody. The U.S. Supreme Court held that 

inadequacy of police training may serve as basis for § 1983 municipal liability where 

failure to train amounts to deliberate indifference to rights of persons with whom 

police come into contact. Id. at 389. Such liability may occur where, 

“in light of the duties assigned to specific officers or employees the need for 

more or different training is so obvious, and the inadequacy so likely to result in 

the violation of constitutional rights, that the policymakers of the city can 

reasonably be said to have been deliberately indifferent to the need.10 In that 

event, the failure to provide proper training may fairly be said to represent a 

policy for which the city is responsible, and for which the city may be held liable 

if it actually causes injury.”

City of Canton, Ohio v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 

(1989). The Court made an analogy to the use of deadly force. City policymakers know 

that officers will be required to arrest fleeing felons and has armed its officers with 

firearms, in part to allow them to accomplish this task. Thus, the need to train officers 

in the constitutional limitations on the use of deadly force can be said to be “so 

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obvious,” that failure to do so could properly be characterized as “deliberate 

indifference” to constitutional rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 400, 

109 S. Ct. 1197, 1211, 103 L. Ed. 2d 412 (1989).

Here, as in Canton v. Harris, officers had basic first responder training, including 

First Aid. As in Canton v. Harris, the question should be for a jury whether this was 

sufficient for conducting welfare checks and taking into custody, either for arrest or 

commitment, elderly and frail persons apparently suffering from some sort of 

impairment. As the Supreme Court said in Canton v. Harris:

Would the injury have been avoided had the employee been trained under a 

program that was not deficient in the identified respect? Predicting how a 

hypothetically well-trained officer would have acted under the circumstances may 

not be an easy task for the factfinder, particularly since matters of judgment may 

be involved, and since officers who are well trained are not free from error and 

perhaps might react very much like the untrained officer in similar circumstances. 

But judge and jury, doing their respective jobs, will be adequate to the task.

City of Canton, Ohio v. Harris, 489 U.S. 378, 391, 109 S. Ct. 1197, 1206, (1989)

3. Inadequate staffing

There was virtually no staff on duty in the booking area when Mr. Rush was 

brought in. There was no permanent designated booking officer and the job was 

handled by whoever was available. A few minutes before his collapse, Mr. Rush is seen 

on video tape walking slowly up to the holding cell door, trying to attract someone‟s 

attention. The video shows that the booking area is deserted. A few minutes later, he 

collapses on the floor and is found without a heartbeat or pulse. There was testimony 

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that there was no medical staff called out to evaluate Mr. Rush and no booking officer 

on duty to screen him or to monitor him as he waited in his holding cell.

Anderson v. City of Atlanta, supra, was a case in which an arrestee took a large 

number of pills prior to entering the pretrial detention center. The booking officer was 

put on notice of this during the initial screening. The arrestee, Anderson, died in a 

holding cell sometime during the night and was found dead in his cell the next morning. 

Detention center officers testified they were hampered in their ability to monitor 

prisoners because the facility was inadequately staffed. The officer on duty testified he 

was alone that night because another officer assigned to receiving “was off doing 

someone else‟s job.” Anderson at 682. He testified that there was no medical staff 

present on that shift, Id., and that because of the shortage of staff, it was impossible to 

check on inmates as often as needed. Id. at 683.

Mr. Rush had a clearly-established right to medical care. Plaintiff maintains the 

facts demonstrate he was denied that right. But for the denial of that right, he would 

not have died. The acts and omissions were the moving facts behind his injury and 

death. Plaintiff does not maintain a small rural county jail must institute all the facilities 

of a modern hospital just because it is likely to receive frail and elderly persons into its 

care. But it must provide the minimal training necessary for its staff to know it must 

divert some arrestees to the hospital, which in this case was only a short distance away.

Defendants argue that law enforcement officers and jail staff are not 

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policymakers for the Sheriff. But our argument is that the Sheriff did not formulate 

policy or implement training to guide them. There is an argument that formation of 

policy or failure to promulgate a certain policy is a discretionary activity that does not 

give rise to liability in government actors but there are cases that say that where the 

need for a policy is clear, failure to promulgate a policy can lead to liability.

It is clear that these were the procedures on which the jail operated. Question for 

the finder of fact. The Court cannot find as a matter of law that they were not the 

proximate cause of Mr. Rush‟s injury and death.

Defendants almost have it right on a number of issues but where they miss, the 

miss is meaningful. For instance, where Defendant Haddock says, “There can be no 

imposition of liability based upon an isolated incident,” citing Depew v. City of St. Mary's, 

787 F.2d 1496 (11th Cir. 1986). What Depew actually says is that generally there can be no 

liability. “There can be no liability” is not the functional equivalent of “Generally there 

can be no liability” because the latter statement admits to exceptions whereas the 

former does not. Counsel for Defendants is, of course, aware of this.

At this point, Sheriff Bobby Haddock has had ample opportunity to see 

Jonathan Rackard‟s capacity for violating the civil rights of the persons with whom he 

comes in contact. In Buckley v. Haddock, 5:06-cv-53-RS/MD, Rackard used a Taser in 

drive-stun mode on a passively resisting arrestee. Although the Eleventh Circuit 

granted Rackard qualified immunity, two of the panel of three found that Rackard had 

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violated Buckley‟s constitutional rights. Buckley v. Haddock 292 Fed.Appx. 791 (2008). 

In Powell v. Haddock, Jonathan Rackard was found to have violated constitutional 

rights and not entitled to qualified immunity. 366 Fed.Appx. 29 (2010). 

4. Proximate cause

Plaintiff‟s expert, Dr. Dragovic, states that Mr. 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. Plaintiff‟s expert agreed oxygen starvation was the critical factor in the death. 

Mr. Rush stated as he was led from the car that he was short of breath.

Defendants‟ expert claimed a “diffuse edema” did not necessarily mean oxygen 

starvation where there had been vigorous efforts to resuscitate a decedent. Though the 

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.

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

condition and his need for oxygen. The Deputies had placed Mr. Rush‟s oxygen in the 

trunk of the patrol car, out of his reach. The Deputies had no particular medical 

training, other than CPR and First Aid. The Deputies did not take Mr. Rush to a 

hospital or call medical staff to meet them at the jail.

C. ADA and Rehabilitation Act Counts (Counts II and III)

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Defendants claim that Plaintiff fails to state a case under the Americans with 

Disabilities Act or the closely similar Rehabilitation Act. Defendants err in each area 

cited in the Motion for Summary Judgment.

1. James Rush was a qualified person with a disability

As alleged in the complaint, James Rush was a frail elderly vulnerable adult. A 

"Disability" for purposes of the ADA is "a physical or mental impairment that 

substantially limits one or more of the major life activities of such individual." 42 U.S.C. 

§ 12102(2). He suffered from COPD and required access to oxygen. Oxygen starvation

prevented him from understanding and advocating for his own medical treatment. 

2. James Rush was denied benefits of services, programs, or activities

James Rush was deprived of the safe care and custody of the Washington 

County Sheriff‟s Office and Washington County Jail. At the time of his arrest, he was 

suffering confusion as a result of oxygen starvation which affected his ability to think

and advocate for his own health care. Had he been provided with access to oxygen or 

been delivered to a medical facility, he could have been able to receive the same safe 

custody that other inmates received.

3. James Rush was subject to discrimination

Plaintiff adequately shows the discrimination against decedent was intentional. 

Although some cases use the term "for a discriminatory purpose," the better term is 

"intentional," that is, not "caused by mistake, accident, negligence, or another innocent 

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reason." Love v. McBride, 896 F.Supp. 808, 809 (N.D. Ind. 1995). 

The failure to accommodate James Rush was not simply negligent medical care. 

In Breedlove v. Costner, 2010 WL 354024 (W.D. Okl. 2010), citing Kiman v. New Hampshire 

Dept. of Corrections, 451 F.3d 274 (1st Cir. N.H. 2006), the distinction is clear. The court 

there held, "[C]ourts have differentiated ADA claims based on negligent medical care 

from those based on discriminatory medical care [emphasis added]." Id. at *3 n.16. 

Clearly although ADA and Rehabilitation Act cases do not apply to medical treatment 

decisions per se, they do when those decisions are discriminatory and the other 

conditions of the Acts are met. 

D. The State Counts

Plaintiff has pled in the alternative that the failure to treat was a negligent act by 

non-medical staff to which the Sheriff is liable under state law by virtue of his office. 

This does not constitute a medical malpractice case because the staff were not trained 

medical professionals and were not under that duty. Rather the office of the sheriff was 

under a duty of care to provide care for its arrestees and a special duty for a vulnerable 

arrestee like Mr. Rush.

1. Negligent undertaking (Count IV)

Defendants claim that the “negligent undertaking” claim in Count IV is 

duplicative of the negligence claim in Count V. This is not the case. Count IV is based 

on the “undertaking doctrine,” that although a person may not have a duty to perform a 

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certain action (e.g. the limitations on police liability under the “public duty doctrine”), 

once the action is undertaken, there is a duty to perform the action non-negligently. 

The standard of care is the reasonable person standard.

In Wallace v. Dean, the Supreme Court of Florida held that:

[i]n every situation where a man undertakes to act, or to pursue a particular 

course, he is under an implied legal obligation or duty to act with reasonable 

care, to the end that the person or property of others may not be injured by any 

force which he sets in operation, or by any agent for which he is responsible. If 

he fails to exercise the degree of caution which the law requires in a particular 

situation, he is held liable for any damage that results to another, just as if he had 

bound himself by an obligatory promise to exercise the required degree of 

care.... [E]ven “where a man interferes gratuitously, he is bound to act in a 

reasonable and prudent manner according to the circumstances and 

opportunities of the case.”

Wallace v. Dean, 3 So. 3d 1035, 1050 (Fla. 2009), reh'g denied (Feb. 25, 2009), citing Banfield 

v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis 

supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting 

Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)).

In Wallace v. Dean, the decedent‟s daughter called 911 to request that deputies 

check on her mother who was not responding the phone or knocks on her door. 

Deputies responded and entered the dwelling through the window. They found the 

plaintiff‟s mother breathing but unresponsive to attempts to rouse her. In fact, the 

plaintiff‟s mother was in a diabetic coma but the deputies assured her that her mother 

was only sleeping and that there was no need to call an ambulance. Deferring to the 

deputies experience, family members did not seek further help. The next day, the 

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plaintiff‟s mother was still unresponsive. Family members called an ambulance to take 

her to the hospital where she died several days later. Id. at 1043.

In the current case, the decedent, Mr. Rush, told officers he didn‟t want to 

inconvenience members of his family in the middle of the night. He said his elderly 

brother, who lived nearby, was ill. Thus, Mr. Rush was delighted when the Sheriff‟s 

dispatcher told him an officer was coming to check on him. At the same time, in 

undertaking to check on Mr. Rush, the deputies undertook to do so non-negligently, 

since their undertaking discouraged Mr. Rush from going on, driven by his desperation, 

and calling his family members to help him.

The Undertaking Doctrine is a theory of tort liability that is outside the analysis 

in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912, 919-21 

(Fla.1985). In Wallace, the Florida Supreme Court found that in undertaking to conduct 

a safety check, the deputies owed the decedent a common law duty of care and that in 

carrying out the program of the 911 system, they were carrying out an operational 

function. Wallace at 1045-46.

2. Negligent supervision, training, discipline, or retention (Count V)

To state a claim for negligence under Florida law, a plaintiff must allege that the 

defendant owed plaintiff a duty of care, that the defendant breached that duty, and that 

the breach caused injury. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 

2001) (citing Paterson v. Deeb, 472 So. 2d 1210, 1214 (Fla. 1st DCA 1985)). Under 

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Florida‟s Public Duty Doctrine, a plaintiff suing a governmental entity in tort must 

allege that the defendant owed a duty of care to the plaintiff individually, rather than to 

the public in general. Seguine v. City of Miami, 627 So.2d 14, 16 (Fla. 3d DCA 1993).

One basis of such an individual duty is sometimes referred to as a “special 

relationship” between law enforcement and an individual. One such recognized “special 

relationship” exists when law enforcement has the individual in “custody of some 

sort.” Smith v. City of Plantation, 19 F.Supp.2d 1323 (1998) citing Kaisner, 543 So.2d at 

734. Here, Plaintiff‟s decedent was in Defendant Haddock‟s custody and Plaintiff has 

amply alleged a duty in Defendant Haddock to Plaintiff, based on that.

Defendant cites Tallahassee Furniture, Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 

1991), to the effect that there is only respondeat superior when the wrongdoer is at least 

motivated by a purpose to serve the employer's interest. However in this count, the 

Plaintiff's state claim against Defendant is not based on respondeat superior, but on the 

Defendant's own negligence.

But there too, Tallahassee Furniture can be instructive. In that case, a young woman 

was raped by a man who had earlier delivered a couch to her home. He subsequently 

returned to her home on a pretext and she let him in. The employee then stabbed and 

bludgeoned the young woman. Id. at 748-49. The case went to trial on both theories of 

negligence and respondeat superior. The Florida First District Court of Appeal agreed that 

there was no respondeat superior under the facts but that there was negligence where the 

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employer failed in his duty to investigate the background of the attacker before giving 

him access to his customers.

The court held that "the ultimate question of liability to be decided is whether it 

was reasonable for the employer to permit the employee to perform his job in the light 

of information about him which the employer should have known." Id. at 751. 

3. Abuse or neglect of a vulnerable adult (Count VI)

Plaintiff also alleged that the treatment of Mr. Rush constituted abuse or neglect 

of a vulnerable adult under § 415.1111, Florida Statutes. 

Although Mr. Rush had been able to care for himself for some time, driving 

short distances to shop, keeping house, cooking, and cleaning, on the early morning of 

January 23, 2008, he was deteriorating, confused, and unsteady. Prior to his being taken 

into custody, he spoke of fearing that he would be found dead on the floor, of being 

desperate. The video portraits of Mr. Rush before arrest and at arrival at the jail being 

helped from the patrol car and ushered into the jail, an officer on each arm, was one of 

a vulnerable adult. § 415.102(27), Florida Statutes.3

As to the other definitions under Chapter 415, Washington County Sheriff‟s 

Department employees, in their role as transporters and, Washington County Jail 

 

3 Defendants disingenuously quote the provision in 415.102(5) that, “For purposes of departmental 

investigative jurisdiction, the term caregiver does not include law enforcement officers . . . .” Defendants 

underline “law enforcement officers” when they should pay more attention for the limited purpose 

for which law enforcement officers are excluded. The passage simply means the agency that had a

duty to investigate abuse and neglect of vulnerable adults did not have that duty with regard to law 

enforcement officers.” Under the rule of construction expressio unius est exclusio alterius, law 

enforcement officers are clearly meant to be included as persons who may be caregivers.

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employees, as providers of care and custody to its residents, fit all the essential elements 

of the term “caregiver.” The Jail itself fits the description of a facility providing 

residential care providing care to persons, including vulnerable adults. § 415.102(5), 

Florida Statutes.

“Neglect,” under § 415.102(16), Florida Statutes, includes “the failure or 

omission on the part of the caregiver to provide the care, supervision, and services 

necessary to maintain the physical and mental health of the vulnerable adult, including, 

but not limited to, food, clothing, medicine, shelter, supervision, and medical services, 

that a prudent person would consider essential for the well-being of a vulnerable adult.” 

§ 415.102, Florida Statutes.

In discussing the application of Bohannon v. Shands Teaching Hosp. & Clinics, Inc., 

983 So. 2d 717, 721 (Fla. Dist. Ct. App. 2008), Defendants characteristically blur the 

import of the decision by failing to state forthrightly that the critical reason the Chapter 

415 theory of action was rejected (although the court held on the facts of the case that 

it failed to state a claim) was that the complaint sought to use Chapter 415 to extend 

liability under Florida‟s medical malpractice statute, Chapter 766. Plaintiff‟s allegations, 

although they allege a failure to treat, do not allege medical malpractice.

4. The Court should retain jurisdiction

A federal court has discretion to exercise supplemental jurisdiction under 28 

U.S.C. § 1367(a) is discretionary and may be declined if the district court has dismissed 

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claims over which it has original jurisdiction. There should be no such basis here. 

Defendant Haddock‟s failure to staff and train his patrol and jail divisions to 

accommodate the health needs of frail and elderly detained persons demonstrated 

deliberate indifference and negligence.

The Court, having become intimately aware of the facts and circumstances of 

the case is able to and should continue to exercise jurisdiction to the conclusion of the 

matter. However if the Court chooses not to exercise that jurisdiction, the terms of its 

dismissal should clearly state that the dismissal is not on the merits of the state claim.

WHEREFORE, Plaintiff moves this Honorable Court to Deny Defendant's 

Motion for Summary Judgment.

Respectfully submitted,

s/ James V. Cook___________

JAMES V. COOK

Florida Bar Number 0966843

314 West Jefferson Street

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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