Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02444-REB-PAC

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Filed 11/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-2444-REB-PAC ______________________________________________________________________ KEVIN J. RUTHERFORD, Plaintiff, v. DR. LOUIS CABILING, Defendant. ______________________________________________________________________ REPLY IN SUPPORT OF MOTION TO REVIEW TAXATION OF COSTS ______________________________________________________________________ Kevin J. Rutherford, ("Plaintiff") through his attorneys, Burns, Figa & Will, P.C., respectfully files his reply in . In support thereof Mr. Rutherford states as follows: INTRODUCTION 1. Regardless of whether the Prison Litigation Reform Act ("PLRA")

exhaustion of administrative remedies requirement is characterized as a procedural or substantive prerequisite, Mr. Rutherford never tested the merits of his claim that Dr. Cabiling violated the Eighth Amendment. An award of costs should relate to the constitutionality of Dr. Cabiling's actions, not a statutory requirement designed to improve the quality of prisoner suits, reduce the number of meritless claims, and increase administrative resolution of claims. Furthermore, it was not until after Mr. Rutherford filed his suit that the Supreme Court held that exhaustion was mandatory -1-

Case 1:00-cv-02444-REB-PAC

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under all circumstances and the Tenth Circuit Court of Appeals parted ways with other circuits and held that the PLRA exhaustion of administrative remedies requirement was not an affirmative defense but a pleading requirement. Defendant Cabiling waited more than four years to assert this defense. The costs incurred by that delay do not warrant an extension of equity to Dr. Cabiling. This Court Never Reviewed the Merits of Mr. Rutherford's Eighth Amendment Claim 2. Mr. Rutherford is requesting that this court vacate its award of costs

because the merits of Mr. Rutherford's Eighth Amendment claim were not resolved and because of Mr. Rutherford's precarious financial condition. Mr. Rutherford does not dispute that he did not exhaust his administrative remedies. Mr. Rutherford's decision to circumvent the prison's internal administrative review process has no bearing on whether Dr. Cabiling violated his Eighth Amendment rights. The purpose of the exhaustion requirement was to improve the quality of prisoner suits and reduce the need for litigation. Porter v. Nussle, 534 U.S. 516, 516-17 (2002). The act was not intended to preclude claims with merit. 3. Dr. Cabiling's actions were not reviewed by this court. Had this Court

determined that Dr. Cabiling's actions were constitutional, Mr. Rutherford would be subject to the presumption of a cost award. Having made a decision on the statutory prerequisites for, rather than the merits of, Mr. Rutherford's deliberate indifference claim, this court should not burden Mr. Rutherford with costs.

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When Mr. Rutherford Filed his Complaint, a Plaintiff Did Not have to Prove Exhaustion 4. At the time Mr. Rutherford filed his Complaint, the Supreme Court had not

yet held that an inmate seeking only money damages must exhaust all administrative remedies, even if the administrative process did not provide any monetary relief. Booth v. Churner, 532 U.S. 731, 731 (2001). The Supreme Court also had not held that the PLRA exhaustion requirement applied to all inmate suits about prison life whether the suits involved general circumstances or particular episodes, and whether they alleged excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002). 5. When Mr. Rutherford filed his Complaint, it was not clear whether the

burden of proving exhaustion rested with the plaintiff or defendant. Not until December 2003, three years after Mr. Rutherford filed his Complaint, did the Tenth Circuit Court of Appeals clarify that the PLRA's exhaustion requirement was a pleading requirement not an affirmative defense to be raised and proved by a defendant. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003). 6. Consistent with the law at the time, the Defendants did not file a motion to

dismiss but filed an Answer. The Answer denies Mr. Rutherford exhausted his remedies, Answer [#33] at p.3 E.3, but does not raise exhaustion of administrative remedies as an affirmative defense. Id. at 3-4. It was not until July 2004 that Dr. Cabiling raised exhaustion of administrative remedies as an affirmative defense. Def. Dr. Cabiling's Answer to Amended Compl. [#193] at 6. Dr. Cabiling waited another year to prove that defense by filing a motion for summary judgment on June 24, 2005 [#262]. Until that time, the burden to raise and prove the affirmative defense rested with Dr. -3-

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Cabiling, not Mr. Rutherford. For unknown reasons, Dr. Cabiling waited to prove his affirmative defense. The financial burden of that decision should rest with Dr. Cabiling. 7. Mr. Rutherford is not seeking sympathy because he failed to exhaust his

administrative remedies. He is requesting that this court vacate its order of costs because he never tested the merits of his Eight Amendment claim and because he is incapable of paying the assessed costs. Without a finding related to the merits of his Eighth Amendment claim, this court is not capable of determining whether it is imposing a cost award despite a constitutional violation or because of a meritless claim. Under the circumstances, a cost award would upend the purpose of the Eighth Amendment and drive Mr. Rutherford further into penury. WHEREFORE, Plaintiff requests this Court vacate the Order of Costs taxed against Mr. Rutherford by the Clerk of this Court on October 18, 2005.

Submitted this 22nd day of November, 2005. /s/ David M. "Merc" Pittinos_____ D. Sean Velarde David M. "Merc" Pittinos Burns, Figa & Will, P.C. 6400 S. Fiddler's Green Circle, Suite 1030 Englewood, CO 80111 Telephone: 303-796-2626 Attorneys for Plaintiff Kevin Rutherford

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CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of November 2005, I electronically filed the foregoing REPLY IN SUPPORT OF MOTION TO REVIEW TAXATION OF COSTS using the CM/ECF system which will send notification of such filing to the following email addresses: Daniel Christopher, Esq. David Gerbus, Esq. Molly Walsh, Esq. Kennedy & Christopher P.C. 1050 17th St., #2500 Denver, CO 80265 [email protected] [email protected] [email protected] Joseph P. Sanchez Assistant Attorney General Litigation Section 1525 Sherman Street 5th Floor Denver, CO 80203 [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participants in the manner indicated by the non-participant's name: By U.S. Mail Kevin Rutherford 2815 Wood Avenue Colorado Springs, CO 80907

/s/ Ruth Rouse Ruth Rouse

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