Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02555-JLK-BNB

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Filed 04/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case Number 00-K-2555 (BNB) ______________________________________________________________________________ PAMELA CLIFTON, Plaintiff, vs. NURSE IONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants.

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR RECONSIDERATION OF THIS COURT'S MARCH 8, 2006, ORDER ______ Plaintiff, Pamela Clifton, by and through counsel, David A. Lane and Mari Newman of KILLMER, LANE & NEWMAN, LLP, files this Response to Defendant's Motion for Reconsideration of This Court's March 8, 2006, Order as follows: I. INTRODUCTION Defendants ask this Court to reconsider the denial of their Motion for Summary Judgment. In their Motion for Reconsideration, Defendants essentially argue that the Memorandum Opinion and Order should be reconsidered because the court did not address each of the issues Defendants asserted in their Motion for Summary Judgment. However, that is not a compelling ground for reconsideration. "A motion for reconsideration is proper when the court has `made a mistake not of reasoning but of apprehension . . . [or] if there has been a significant change or development in the law or facts since submission.'" FDIC v. Hildenbrand, 892 F. Supp. 1317, 1319-20 (D. Colo. 1995) (quoting EEOC v. Foothills Tile Guar. Co., 1991 WL

Case 1:00-cv-02555-JLK-BNB

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61012 at *3 (D.Colo. Apr. 12, 1991), aff'd, 956 F.2d 277 (10th Cir. 1992)). As the court wrote in Oiness v. Walgreen Co., 774 F. Supp. 1277, 1289 (D. Colo. 1991): [a] motion for reconsideration should be granted only where the court has patently misunderstood a party or has made a mistake, not of reasoning, but of apprehension. . . . Reconsideration is also proper where there has been a significant change in the law or facts since submission to the court. . . . To the extent that a motion for reconsideration merely restates arguments previously addressed, the court should decline to reconsider the ruling. (internal citations omitted). II. ARGUMENT Defendants do not allege that this Court patently misunderstood their argument, made any mistake of apprehension, or that there has been any significant change in the facts or law since the submission of Defendants' Motion for Summary Judgment. Because Defendants' simple disagreement with the Court's final ruling cannot serve as the basis for a motion for reconsideration, the Defendants' Motion must be denied. Defendants' main argument relies on the fact that the Court's Memorandum Opinion and Order does not specifically address the issue of qualified immunity. However, this argument is misplaced. The district court is not required to provide findings of fact or conclusion of law in granting or denying summary judgment. F.R.C.P. 52(a) (findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56). Moreover, had the Court specifically addressed the issue of whether Defendants are entitled to qualified immunity the decision would have no doubt been the same. Defendants are clearly not qualifiedly immune from suit based on their violation of Ms. Clifton's clearly established constitutional rights. Ms. Clifton's right to be free from cruel and unusual punishment in the form of deliberate indifference to her serious medical needs was clearly established at the time she went into labor and was denied medical treatment resulting in the stillbirth of her child. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to establish such an Eighth Amendment violation, Plaintiff must

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Case 1:00-cv-02555-JLK-BNB

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prove, by a preponderance of the evidence that Defendants were aware of her serious medical needs and either the prison guards denied her access to adequate medical care or she was provided inadequate medical care by a doctor. Id at 104-05. A valid Eighth Amendment claim is established by showing "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id at 106. Defendants failed to make a sufficient showing that Ms. Clifton's constitutional rights were not clearly established or that those rights were not violated by their actions. Based on Defendants' Motion for Summary Judgment this Court ruled, and Plaintiff agrees, that Defendants are not entitled to qualified immunity and their Motion for Summary Judgment was appropriately denied. III. CONCLUSION For the foregoing reasons, this Court should deny Defendant's Motion for Reconsideration of This Court's March 8, 2006, Order. Respectfully submitted this 3rd day of April 2006. KILLMER, LANE & NEWMAN, LLP s/ David A. Lane _______________________________________ David A. Lane Mari Newman The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on April 3, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:

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Thomas J. Lyons [email protected] [email protected];[email protected]

and I hereby certify that I have mailed or served the document or paper to the following participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Vincent M. Garvey U.S. Department of Justice Civil Division, Federal Programs Branch 901 E Street, N.W., #946 Washington, DC 20530 Pamela Clifton 1550 S York St. Denver, CO 80210-2817

s/ David A. Lane ________________________________

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s/ David A. Lane ________________________________

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