Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2299-PSF-BNB F. DAVID SLUSHER, Plaintiff, v. JOHN W. SUTHERS, et al., Defendants. STATE DEFENDANTS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendants Joseph McGarry, Judy Bullard, Delayne Tornowski, Richard Howard, Trevor Williams, Don Lawson, Phillis Griswould, Jim Day, Tamara Williams, Teddy Laurence, Edd C. Gillespie, John W. Suthers, Al Estep, Shane Johnson, Tom O'Brien, and John Reilly, the State Defendants, by and through their attorney, Edward T. Farry, Jr., of FARRY and RECTOR, L.L.P., hereby submit this Brief in support of their motion for summary judgment. The two claims pending against the State Defendants are Claims I and III. Qualified Immunity The State Defendants pled qualified immunity as an affirmative

defense in their answer to the amended complaint. Summary Judgment Standard Summary judgment is proper if the moving party shows, "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. "When applying this standard, we view the evidence and draw reasonable

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inferences therefrom in the light most favorable to the nonmoving party." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Burden of Proof Although this motion is filed by the defendants, and although local rules of practice require movants in summary judgment motions to provide certain data in their motions or briefs, the burden of proof is on plaintiff. "`After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, and the plaintiff must first establish that the defendant' actions violated a constitutional or s statutory right. [Holland ex rel. Overdorff v.] Harrington, 268 F.3d [1179] at 1185 [(10th Cir. 2001)] '" Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003). "Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions. Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000). After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)." Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) Plaintiff also has the burden of proof to establish that each defendant personally participated in the claimed unconstitutional conduct. Nature of Claims Plaintiff's makes two Eighth Amendment cruel and unusual punishment claims alleging the deliberate indifference of prison officials to his claimed serious medical needs. Claim I alleges the deliberate withholding of a certain medication, which medicine was allegedly "prescribed" by physicians. The "withholding" was as a consequence of a change in the manner 2

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and mode of delivering over the counter medications to prisoners. That change was announced by memo dated April 27, 2000, and signed by John Suthers, the then Executive Director of the Colorado Department of Corrections (CDOC). Claim III alleges the withholding of physician-prescribed treatment, namely a mattress with sufficient support to ameliorate plaintiff's claimed serious medical condition. Eighth Amendment Unconstitutional Conduct The Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain." This principle establishes the government's obligation to provide medical care. Deliberate indifference to serious medical needs violates the Eighth Amendment. The test for an Eighth Amendment constitutional tort is plainly stated in Farmers v. Brennan, 511 U.S. 825, 837 (1994): "We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." (Emphasis supplied.) Plaintiff therefore must offer proof that each Defendant had actual knowledge of plaintiff's serious medical need and disregarded an excessive risk to his health. In order to offer proof of knowledge ­ and thereafter a disregard ­ of an excessive risk to plaintiff's health, plaintiff must first offer proof that he has a serious medical condition that, when not treated in the manner demanded by plaintiff, results in an excessive risk to plaintiff's health. Existence of Serious Medical Condition Mr. Slusher does not have a serious medical condition. Consequently, irrespective of 3

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whether he was or was not provided the type and kind of medication and things that he demands, the alleged failure to provide the medication and mattress as demanded does not pose an excessive risk to plaintiff's health. Undisputed Facts (1) Mr. Slusher's condition has never caused him to miss work in the prison power

sewing shop. The condition has never caused him to miss any recreational, social, or religious activity. The condition has never prevented him from engaging in any activities of daily living. [Deposition of Plaintiff Slusher on June 9, 2004, Exhibit 1, pages 193 - 194, lines 21 - 15] (2) As of June of 2004, Mr. Slusher had no evidence that he has a serious medical

condition. [Deposition of Plaintiff Slusher on June 9, 2004, Exhibit 2, pages 126 - 127, lines 13 25] (3) (4) Mr. Slusher's condition is not life threatening. [Exhibit 3, Affidavit of Dr. Bloor] Both aspirin and motrin were available for use as over-the-counter medications for

patients such as Slusher to purchase from the canteen, and more recently Aleve became available as well. These, or any other nonsteroidal anti-inflammatory drugs (NSAIDS), would have been efficacious for treating the symptoms of ulnar neuropathy with which plaintiff presented. [Id.] (5) As of the date of the filing of this motion, Mr. Slusher continues to have no

evidence that he has a serious medical condition. [Deposition of Plaintiff Slusher on September 9, 2005, Exhibit 4, pages 21 - 22] Discussion Mr. Slusher now has the burden of offering proof that he does have a serious medical 4

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condition, and that, when deprived of the medication and mattress as he alleges he was deprived, there is an excessive risk to Mr. Slusher's health. Without proof that he had a serious medical condition, Mr. Slusher can offer no proof that any state official violated any constitutional right, irrespective of their subsequent conduct. Consequently, the State Defendants are entitled to a dismissal of the claims against them because there is no evidence or proof that Mr. Slusher has or had a serious medical condition, and that any State Defendants' conduct thereafter caused an excessive risk to Mr. Slusher's health. KNOWLEDGE OF CONDITION Mr. Slusher has no evidence that any State Defendant knew that he had a serious medical condition. Undisputed Facts (6) Mr. Slusher has no evidence that either John Suthers or Dr. Joseph McGarry knew

that Slusher carried a diagnosis of ulnar neuropathy; indeed until Slusher wrote to them, they did not know who he was. Further, Slusher has no evidence that either knew that Slusher would be placed in a position of excessive or substantial risk of serious injury if Slusher did not get ibuprofen in dosage units of 400 milligrams three times a day. lines 4 - 25] (7) Mr. Slusher has no evidence that Don Lawson knew Slusher, or that he carried a [Exhibit 5, pages 140 - 141,

diagnosis of ulnar neuropathy. Further Slusher has no evidence that either knew that Slusher would be placed in a position of excessive or substantial risk of serious injury if Slusher did not 5

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get ibuprofen in dosage units of 400 milligrams three times a day. [Exhibit 5, pages 161 - 162, lines 13 - 25] (8) Mr. Slusher has no evidence that Phillis Griswould knew that Slusher carried a

diagnosis of ulnar neuropathy. Further Slusher has no evidence that either knew that Slusher would be placed in a position of excessive or substantial risk of serious injury if Slusher did not get ibuprofen in dosage units of 400 milligrams three times a day. [Exhibit 6, pages 177 - 181, lines 5 - 25] (9) Mr. Slusher has no evidence that Ted Laurence knew that Slusher would be placed

in a position of excessive or substantial risk of serious injury if Slusher did not get ibuprofen in dosage units of 400 milligrams three times a day. [Exhibit 7, page 183, lines 1 - 25] Mr. Slusher has added additional defendants in Claim III to those named above. In like manner, Mr. Slusher has no proof that any of these defendants has knowledge that he has or had a serious medical condition, or that his condition required treatment in the form of a special mattress. Discussion Without evidence that any defendant knew that he had a serious medical condition, or that any defendant knew that Slusher would be placed in a position of excessive or substantial risk of serious injury if Slusher did not get ibuprofen in dosage units of 400 milligrams three times a day or approval of additional or specialized bedding in the form of a mattress, he has no evidence that any state official violated any constitutional right. Indeed the State Defendants, through the affidavit of Dr. Bloor, introduced evidence that Mr. Slusher's condition cannot reasonably be 6

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characterized as a serious medical condition, and thus no constitutional right was violated. WHEREFORE, the State Defendants respectfully request that the Court dismiss the complaint. Respectfully submitted September 30, 2005. FARRY and RECTOR, L.L.P. s/ Edward T. Farry Edward T. Farry, Jr. #8273 Attorney for State Defendants 131 South Weber Street Colorado Springs, CO 80903 Phone Number (719) 578-2000 Facsimile Number (719) 578-1794 Original copy signed by Edward T. Farry is on file with Farry and Rector, L.L.P.

CERTIFICATE OF SERVICE I hereby certify that on September 30, 2005, a copy of the foregoing Motion for Summary Judgment as electronically filed with the Clerk of Court using CM/ECF system, which will send notification to the following, and served on each of the following at the indicated address by first class U.S. mail, postage prepaid: F. David Slusher DOC #44260 Fremont Correctional Facility P.O. Box 999 Canon City, CO 81215

Kelly R. Moss Original Copy signed by Kelly R. Moss is on file with Farry and Rector, L.L.P. 7