Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-RB-2444 (PAC) KEVIN J. RUTHERFORD, Plaintiff, v. DR. LOUIS CABILING, Defendant. ______________________________________________________________________________ RESPONSE BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Plaintiff Kevin Rutherford, by and through his attorneys, and in support of his Response to Defendant's Motion for Summary Judgment, states as follows: I. INTRODUCTION Dr. Cabiling's Motion for Summary Judgment assumes a higher standard than this Court applies in analyzing a motion summary judgment. Mr. Rutherford does not have to prove his case in response to a motion for summary judgment, he must only establish that a question of material fact exists with regard to each of Dr. Cabiling's four claims for summary judgment. Mr. Rutherford has met that burden. First, Dr. Cabiling claims that Mr. Rutherford has failed to meet either prong of the twopart test to establish deliberate indifference. To defeat a summary judgment motion, however, Mr. Rutherford does not have to establish either prong, he must demonstrate the existence of a disputed issue of material fact. This Court has already found that Mr. Rutherford's condition

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constituted a serious medical need. It is sufficiently serious to defeat a summary judgment motion because Dr. Cabiling's ordered analysis and treatment of Mr. Rutherford's condition, and despite Dr. Cabiling's knowledge, Mr. Rutherford's experts have alleged that Dr. Cabiling's treatment delays demonstrated deliberate indifference to Mr. Rutherford's serious medical needs. Second, Dr. Cabiling was the physician in charge of the Four Mile Correctional Facility. No Colorado Department of Corrections ("CDOC") administrative regulation addresses the supervisory capacity of a physician in charge. Thus, a factual question regarding Dr. Cabiling's supervisory role exists. Dr. Rod Gottula, Mr. Rutherford's expert and a former Chief Medical Officer of the Colorado Department of Corrections ("CDOC"), testified at deposition that Dr. Cabiling, as physician in charge, would have provided clinical, as opposed to administrative, supervision over nursing staff. Dr. Cabiling's assertion that he was not in charge of nursing staff because CDOC regulations require medical staff to report to the Health Services Administrator is not sufficient to support summary judgment because the Health Services Administrator was in charge of administrative, not clinical, decisions. Pursuant to CDOC regulations, clinical decisions were the sole province of the responsible physician. Third, factual questions exists as to whether Dr. Cabiling should be entitled to qualified immunity because a treatment delay that causes substantial harm constitutes a constitutional violation. This rule had been in place for more than five years before Dr. Cabiling's treatment at issue, Dr. Cabiling was on notice of the rule. A delay, as Dr. Cabiling states, may be evidence not only of a conservative treatment but also of a constitutional violation. Summary judgment, based on a qualified immunity, is not appropriate.

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Fourth, regardless of whether Mr. Rutherford exhausted his administrative remedies, two factual questions remain. Should Dr. Cabiling be estopped from asserting the non-exhaustion of remedies defense? Are there "special circumstances" that preclude Dr. Cabiling from asserting the non-exhaustion defense? These are questions for the jury that are not ripe for determination on a motion for summary judgment. Dr. Cabiling has asserted four reasons this Court should grant summary judgment. A factual dispute exists for each assertion. Summary judgment is not appropriate. II. LEGAL STANDARD Summary judgment is appropriate if the pleadings together with competent evidence, if any, show that 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. Lawmaster v. Ward, 125 F.3d 1341, 1346-47 (10th Cir. 1997). (internal citations omitted). Under the summary judgment standard, the trial court must view the evidence in the light most favorable to the nonmoving party." Oliver v. Woods, 209 F.3d 1179, 1184 (10th Cir. 2000). III. ARGUMENT A. Mr. Rutherford Has Not Asserted Claims for Medical Care and Treatment Provided in 1995 and 1996 In both his Complaint and his Amended Complaint, Mr. Rutherford alleges that Dr. Cabiling acted with deliberate indifference towards Mr. Rutherford's serious medical needs from 1998-2001. Although Mr. Rutherford's experts have identified actions by Dr. Cabiling in 1995 and 1996 that could also constitute a deliberate indifference to Mr. Rutherford's serious medical needs, those claims, as Dr. Cabiling points out, are barred by the applicable statute of limitations. At trial, Mr. Rutherford intends to pursue only those claims set forth in the complaint.

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B. Mr. Rutherford's Allegations Are Sufficient to State an Eighth Amendment Claim 1. Dr. Cabiling Was Deliberately Indifferent to a Serious Medical Need Summary judgment is not appropriate because Mr. Rutherford has set forth sufficient facts to demonstrate that Dr. Cabiling's treatment delays constitute deliberate indifference to his serious medical needs. Dr. Cabiling alleges that summary judgment is appropriate because he addressed "each and every one of Plaintiff's complaints of low back pain." Defendant's Motion for Summary Judgment, at 9. This allegation, however, is not sufficient to support a motion for summary judgment. Regardless of whether Dr. Cabiling eventually took action, the question of material fact is whether Dr. Cabiling's delay in taking action constitutes deliberate indifference to Mr. Rutherford's serious medical needs. "A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment. `Deliberate indifference' involves both an objective and a subjective component. The objective component is met if the deprivation is `sufficiently serious.' A medical need is sufficiently serious `if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.' The subjective component is met if a prison official `knows of and disregards an excessive risk to inmate health or safety.'" Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). This Court has already determined that Mr. Rutherford's back condition constituted a serious medical need. Recommendation of United States Magistrate Judge, April 16, 2002, at 11 (approved and adopted by Order Approving Magistrate Judge's Recommendations, May 29, 2002, at 4). Further, the Tenth Circuit Court of Appeals agreed. Rutherford v. Med. Dep't of

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Dep't of Corrections, 75 F.App'x 893, 898 (10th Cir. 2003). A delay of a matter of hours could be sufficient to establish the objective component of deliberate indifference. In Sealock, one of the defendants, Sargent Barrett, was told that the plaintiff prisoner "was or might be having a heart attack. Barrett refused to transport appellant immediately to a doctor or a hospital because it was snowing outside and it would take time to warm up the prison van for transportation. Finally, Barrett told appellant not to die on his shift." Sealock, 218 F.3d at 1210. "The pain and suffering imposed by Barrett's failure to get him treatment lasted several hours." Id. The evidence in that case "sufficiently establishe[d] the objective element of the deliberate indifference test." Id. Mr. Rutherford does not dispute that Dr. Cabiling took some steps to treat his back pain. It is Dr. Cabiling's delay in treating Mr. Rutherford that raises a disputed issue of material fact. Dr. Cabiling, in his motion for summary judgment, does not specifically articulate why Mr. Rutherford can not meet the objective test for deliberate indifference. Instead, Dr. Cabiling lists his responses to Mr. Rutherford's complaints. Those responses, however, viewed in the light most favorable to Mr. Rutherford, provide sufficient evidence to establish Dr. Cabiling's deliberate indifference. Mr. Rutherford's condition was "sufficiently serious" that it was analyzed by x-ray (R 3092, attached as Exhibit 1), EMG (R 2875-2876, attached as Exhibit 2), and MRI (R 32463248, attached as Exhibit 3). Dr. Cabiling ordered that Mr. Rutherford have multiple consultations with a neurosurgeon, Dr. Lindsay Lilly (Exhibit 2; Exhibit 4), prescribed medication for Mr. Rutherford (Exhibit 1), and imposed physical restrictions (Id.). Because Dr. Cabiling diagnosed Mr. Rutherford's condition as mandating treatment--with tests, medicine,

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and physical restrictions--Mr. Rutherford's condition was "sufficiently serious" to establish the objective prong of the test for deliberate indifference. Dr. Cabiling has not demonstrated that no genuine issue of material fact exists with regard to the objective component of the test for deliberate indifference. The subjective component of deliberate indifference is satisfied if the defendant "knows of and disregards an excessive risk to inmate health or safety." Id. at 1209. In Sealock, the court found that the prisoner had established the subjective component of the deliberate indifference test because "Barrett was informed that appellant might be having a heart attack, and [Barrett] was present when appellant displayed symptoms consistent with a heart attack. Barrett allegedly refused to drive appellant to the hospital, and told appellant not to die on his shift." Id. at 1210. Dr. Cabiling's motion demonstrates that a disputed issue of material fact exists with regard to the subjective component. The defendant terms a three month delay in setting a neurosurgeon consult a "decision to conservatively treat Plaintiff's back pain." Defendant's Motion for Summary Judgment, at 11. Whether Dr. Cabiling's delay constituted conservative treatment is a disputed issue of material fact, and Mr. Rutherford has demonstrated sufficient evidence to establish the subjective component of deliberate indifference. Mr. Rutherford's expert, Dr. Gottula, highlighted several delays that, considered in the light most favorable to Mr. Rutherford, would establish that Dr. Cabiling knew of and disregarded an excessive risk to Mr. Rutherford's health and safety. First, Mr. Rutherford was seen on May 11, 1999 for complaints about lower back pain. An x-ray was performed that day. Exhibit 1. Mr. Rutherford continued to complain and on July 7, 1999 demanded that a CT scan or MRI be performed because of his back problem. Exhibit 5. Dr. Cabiling saw Mr. Rutherford

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on July 15, 1999, approximately two months after the prior visit, and conducted an EMG. Exhibit 2. The EMG was abnormal and Dr. Cabiling ordered a neurosurgery consult. Id. The consultation did not take place for two and one-half months. On October 1, 1999, Dr. Lindsay Lilly saw Mr. Rutherford. Exhibit 3. Dr. Lilly recommended that Mr. Rutherford's condition be analyzed by MRI. Id. at 3247. The MRI was not performed until February 9, 2000 (DOC00019, attached as Exhibit 6), even though Dr. Cabiling filed a report on October 8, 1999 requesting the MRI be performed. Exhibit 7. Dr. Gottula, in response, noted, "That means that it is almost 7 months since the abnormal EMG is discovered. . . .In my experience, the length of time between an abnormal EMG and subsequent MRI to determine the problem is generally around 2 months. Never root deterioration can begin within 3 months from the time compression begins." Expert Report of Roderic Gottula, MD, at 2, attached as Exhibit 8. In response, Dr. Cabiling ordered a second neurosurgery consultation on February 15, 2000. Exhibit 4. Three months later, a staffing, which includes Dr. Cabiling, occurs. R 1520 ­ 1529, attached as Exhibit 9. "During the staffing, there is discussion regarding the follow up on his MRI and low back pain. The discussion seems to completely ignore the fact that the consultation ordered on 2/17/00 has not occurred. . . .At this time, he has gone one year since the reoccurrence of his back pain and 10 months from the time he had an abnormal EMG and 3 months since he was found to have a significantly abnormal MRI." Exhibit 8, at 2. Dr. Gottula then concluded, "Such delays in my opinion are signs of deliberate indifference to Mr. Rutherford's serious medical needs. They put him at risk not only of having permanent neurological impairment, but also for the development of Chronic Pain Syndrome." Id.

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Like Sargent Barrett, Dr. Cabiling knew about Mr. Rutherford's health condition. Nonetheless, Dr. Cabiling delayed his treatment and disregarded the risks that delay could cause to Mr. Rutherford's condition. Summary judgment, consequently, is not appropriate. Furthermore, Dr. Cabiling wishes this Court to find, without a trial, that Dr. Cabiling, at most, committed medical malpractice. In support, Dr. Cabiling relies upon Estelle v. Gamble, 429 U.S. 97 (1976). In Estelle, the Supreme Court held that, "A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act." Id. at 107. This is not a situation where a doctor failed to order an x-ray; Dr. Cabiling, through both and EMG and MRI, was aware of Mr. Rutherford's serious medical need. Exhibit 2; Exhibit 7. "But the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment." Estelle, 429 U.S. at 107. Estelle might be applicable if, to analyze Mr. Rutherford's condition, Dr. Cabiling had selected an x-ray instead of an EMG. Estelle, however, does not apply where the alleged deliberate indifference arises from delay, rather from the selection of a diagnostic technique or form of treatment. Finally, Dr. Cabiling has cited no case that holds that delay in providing medical treatment is insufficient for establishing the subjective prong of the deliberate indifference test in a summary judgment motion. Dr. Cabiling has not specifically addressed the subjective prong but has made assertions that delay constitutes conservative treatment, which he then alleges is, at most, evidence of medical malpractice. Dr. Cabiling also cites no case holding that delay constitutes medical malpractice. Rather, the case upon which he relies, Estelle v. Gamble,

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addresses the selection of a diagnostic technique, not delay. Thus, a question of material fact remains: Did Dr. Cabiling's delay cause Mr. Rutherford substantial harm. The correct forum for making that determination is at trial, not a summary judgment motion, because Mr. Rutherford has presented sufficient evidence of the seriousness of his condition, Dr. Cabiling's knowledge of his condition, and Dr. Cabiling's disregard for the risks delay would cause his condition. 2. Dr. Cabiling Had Supervisory Responsibility for Nursing Staff "Under § 1983, a defendant may not be held liable under a theory of respondeat superior. Instead, to establish supervisory liability, a plaintiff must show that an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000) (internal citations and quotations omitted). A factual dispute exists whether Dr. Cabiling, in his supervisory capacity, acted with deliberate indifference to Mr. Rutherford's serious medical need. Dr. Cabiling was the physician in charge of the Four Mile Correctional Center while he treated Mr. Rutherford. See Deposition of Dr. Louis Cabiling, at 38:18-20, attached as Exhibit 10. Those allegations demonstrate that a question of material fact exists, and when considered in the light most favorable to Mr. Rutherford, he has made factual allegations sufficient to state a claim against Dr. Cabiling, acting in his supervisory capacity. CDOC Regulations do not define the supervisory role of a physician in charge. CDOC Administrative Regulation 700-01, attached as Exhibit 11. The regulation does, however, state, "Clinical decisions will remain the sole province of the responsible physician, dentist, or mental health staff and are not countermanded by non-clinicians." Exhibit 11, at IV.F.2

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(emphasis not added). Consistent with this policy, Dr. Gottula, when asked, "Did the nursing staff within the Department of Corrections have a separate management chain that was distinct from the management chain for physicians assistants and physicians?," noted: Okay. My recollection is that the clinical administrator at a facility or a cluster of facilities would be involved in hiring and firing nurses and PAs and nurse practitioners. The clinical administrator frequently was a nurse; and in those instances, would provide some global supervision, I guess, of the nurses. They would also provide some oversight for PAs and nurse practitioners; however, it was the expectation that the physician responsible for that particular facility would be the one that provided the oversight for the PAs and nurse practitioners immediate clinical as opposed to administrative supervision over the PAs and nurse practitioners. Deposition of Roderic Gottula, MD, at 47:12-25, 48:1-8, attached as Exhibit 12. "In July 1999, Dr. Cabiling authorized neurosurgeon consultation for Mr. Rutherford related to his lumbar disc and nerve problems." Amended Complaint at ¶24. "The medical staff at FMCC allowed Mr. Rutherford's authorization to see Dr. Lilly to expire, delaying a proper diagnosis even further." Amended Complaint at ¶29. Mr. Rutherford also alleged, "medical staff at FMCC disregarded Mr. Rutherford's complaints about severe back pain, prescribed exercise and physical therapy that worsened his back condition without first performing tests or examinations on him, delayed referring him to a doctor for medical care, allowed orders for referrals to expire, and failed to schedule prescribed tests, surgery, and follow-up care." Amended

Complaint at ¶35. Mr. Rutherford later alleged, in his claim against Dr. Cabiling, that Dr. Cabiling showed deliberate indifference "by allowing a referral to a neurosurgeon, when eventually made, to expire before the specialist could see Mr. Rutherford; permitting delays in arranging for consultations with a neurosurgeon, for MRIs, for follow-up

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appointments, and scheduling and transporting Mr. Rutherford for surgery; and for scheduling rehabilitation for Mr. Rutherford at times and in a manner which aggravated Mr. Rutherford's injuries." Id. at ¶51. Finally, Mr. Rutherford alleged "Dr. Cabiling's actions and inaction constitute deliberate indifference to Mr. Rutherford's serious medical needs amounting to cruel and unusual punishment in violation of Mr. Rutherford's rights under the Eighth Amendment to the United States Constitution." Amended Complaint at ¶57 (emphasis added). Dr. Cabiling had authorized Mr. Rutherford's second neurosurgeon consultation, but the consultation expired. R 2133, attached as Exhibit 13. Mr. Rutherford has alleged that medical staff disregarded his complaints, prescribed physical therapy that made his condition worse, delayed referring him to a doctor, allowed orders for referrals to expire, and failed to schedule prescribed tests, surgery, and follow-up care. Amended Complaint at ¶35. Dr. Cabiling's inaction, with regard to responses by medical staff, raises a disputed question of material fact whether Dr. Cabiling's supervisory inaction constituted deliberate indifference. Summary judgment is not appropriate because there is link between Dr. Cabiling's inaction and Mr. Rutherford's serious medical needs, and when viewed in the light most favorable to Mr. Rutherford, that link establishes deliberate indifference. C. Dr. Cabiling is Not Entitled to Qualified Immunity Dr. Cabiling is not entitled to qualified immunity because Mr. Rutherford has made sufficient allegations that (1) Dr. Cabiling violated a constitutional right by delaying medical care; and (2) the law was clearly established--at the time of Dr. Cabiling's inaction--that a delay in providing medical care that results in substantial harm violates the Eighth Amendment.

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The Tenth Circuit decides qualified immunity questions on motions for summary judgment differently from other summary judgment motions. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1311 (10th Cir. 2003). "When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the burden shifts to the plaintiff to show that 1) the official violated a constitutional or statutory right; and 2) the constitutional or statutory right was clearly established when the alleged violation occurred." Id. at 1312. When analyzing a qualified immunity defense, the court must consider an initial, threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." Saucier v. Katz, 533 U.S. 194, 201 (U.S. 2001). "[T]he next, sequential step is to ask whether the right was clearly established." Id. "This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. If the plaintiff indeed demonstrates that the official violated a clearly established constitutional or statutory right, then the burden shifts back to the defendant, who must prove that "no genuine issues of material fact" exist and that the defendant "is entitled to judgment as a matter of law." In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense. When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be "properly denied." Olsen, 312 F.3d at 1312 (internal citations omitted).

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"[D]elay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference which results in substantial harm." Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). When "there is factual evidence from which a jury could conclude that the delay occasioned by [the defendant's] inaction unnecessarily prolonged appellant's pain and suffering," an Eighth Amendment violation has occurred. Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000). In his first Motion for Summary Judgment, filed on August 15, 2001, Dr. Cabiling alleged that he was entitled to qualified immunity. In the order deciding that motion, this Court found that Mr. Rutherford's back condition constituted a serious medical need. Recommendation of United States Magistrate Judge, April 16, 2002, at 11 (approved and adopted by Order Approving Magistrate Judge's Recommendations, May 29, 2002, at 4). The Tenth Circuit also noted, "The district court determined that Mr. Rutherford's back condition constituted a serious medical need, and that finding has not been appealed from." Rutherford v. Med. Dep't of Dep't of Corrections, 75 F.App'x 893, 898 (10th Cir. 2003). This Court, however, then granted summary judgment in favor of Dr. Cabiling without specifically addressing the qualified immunity defense. Id. at 11-12. The Tenth Circuit later overturned this Court's decision, holding that "A year and one-half delay in obtaining surgical relief after diagnosis of nerve damage could be determined to be unreasonable and indicative of deliberate indifference." Rutherford v. Med. Dep't of Dep't of Corrections, 75 F.App'x 893, 899 (10th Cir. 2003). The Tenth Circuit's opinion establishes that Mr. Rutherford has met the first prong of the Saucier test. Taken in the light most favorable to Mr. Rutherford, the facts alleged show that Dr. Cabiling's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (U.S.

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2001). Second, the Tenth Circuit has held, since at least 1993 (five years prior to Dr. Cabiling's conduct), that a delay in providing medical treatment that results in substantial harm violates the Eighth Amendment. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). To meet the second prong of the Saucier test, whether it would be clear to a reasonable officer that Dr. Cabiling's conduct was unlawful in the situation Dr. Cabiling confronted, Dr. Cabiling asserts, "[D]elay in treatment is not unlawful, and there is no statute or legal opinion that would put Dr. Cabiling on notice that his decision to treat Plaintiff's complaints of back pain with conservative treatment was in violation of Plaintiff's rights." Defendant's Motion for Summary Judgment at 15-16. Dr. Cabiling, however, was on notice that a delay that results in substantial harm, regardless of the length of the delay, violates the Eighth Amendment. Olsen was decided at least two years before Dr. Cabiling even saw Mr. Rutheford, and five years prior to the events at issue in this case. Mr. Rutherford has established, as the Tenth Circuit held, that Mr. Rutherford's allegations "could be determined to be unreasonable and indicative of deliberate indifference." Rutherford, 76 F.App'x at 899. When analyzed in the light most favorable to him, Mr. Rutherford has also established the second prong of the Saucier test. As the Tenth Circuit held in Olsen, once a plaintiff has satisfied the two-prong test outlined in Saucier, "then the burden shifts back to the defendant, who must prove that `no genuine issues of material fact' exist and that the defendant `is entitled to judgment as a matter of law.'" Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2003). "When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be `properly denied.'" Id. As explained by the Tenth Circuit, an unresolved dispute of historical

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fact exists: whether Dr. Cabiling was unreasonable and acted with deliberate indifference by delaying Mr. Rutherford's surgery for a year and one-half. See Rutherford, 76 F.App'x at 899. This Court should deny Dr. Cabiling's claim that he should be entitled to qualified immunity. First, Mr. Rutherford has made sufficient allegations to establish that Dr. Cabiling violated a constitutional right by delaying medical care. Second, the law was clearly established, at the time of Dr. Cabiling's inaction, that a delay in providing medical care that results in substantial harm violates the Eighth Amendment. Third, the issue of whether Dr. Cabiling acted with deliberate indifference is still outstanding. Summary judgment is not appropriate. D. Defendant's Are Estopped from Asserting Mr. Rutherford Failed to Exhaust Administrative Remedies Dr. Cabiling asserts that Mr. Rutherford's claims must be dismissed for failure to exhaust administrative remedies under the statutory mandates of the Prison Litigation Reform Act of 1996 ("PRLA"), 42 U.S.C. § 1997. The Second Circuit has adopted a three-part inquiry1 "in cases where a prisoner plausibly seeks to counter a [defendant's] contention that the prisoner has failed to exhaust available administrative remedies as required by the PRLA, 42 U.S.C. 1997e(a)." Hemphill v. New York, 380 F.3d 680, 686 (2nd Cir. 2004). First, the court must ask "whether administrative remedies were in fact `available' to the prisoner." Id. Second, the court should inquire whether the defendant may be estopped from raising failure to exhaust as a defense. Ziemba v. Wezner, 366 F.3d 161, 163 (2nd Cir. 2004). Third, "If the court finds that administrative remedies were available to the plaintiff, and that the defendant[ is] not estopped

The Tenth Circuit has not adopted this test. Although it does not appear a Tenth Circuit decision has analyzed Hemphill, or the cases decided simultaneously with Hemphill, the Tenth Circuit has previously applied among the most stringent standards for exhaustion. Giano v. Goord, 380 F.3d 670, 676 (2nd Cir. 2004) (recognizing different approaches in stringency of application of PLRA exhaustion of remedies requirement). Mr. Rutherford urges adoption of the test applied in the Second Circuit.

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and [has] not forfeited [his] non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether `special circumstances' have been plausibly alleged that justify `the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 686. As noted in the defendant's motion, the Colorado Department of Corrections ("CDOC") has a three-step grievance process. See Colorado Department of Corrections, Administrative Regulation 850-04(IV)(C)(1), attached as Exhibit 14. To exhaust administrative remedies, a prisoner must file a Step 3 grievance, the CDOC must deny the grievance, and the grievance officer must certify that the offender has exhausted the grievance process. Exhibit 14, at 85004(IV)(C)(1)(c)(1). "The decision of the grievance officer is the final agency action." Id. at (IV)(C)(1)(c)(4). As noted in Dr. Cabiling's Motion for Summary Judgment, Mr. Rutherford admitted at deposition that he did not file a Step 3 grievance against Dr. Cabiling. Defendant's Motion for Summary Judgment, at 17. The grievance process appears to have been available to Mr. Rutherford. Mr. Rutherford can not satisfy the requirements of the first Hemphill exception. Dr. Cabiling, nonetheless, should be equitably estopped from asserting the nonexhaustion defense. See Ziemba v. Wezner, 366 F.3d 161, 163 (2nd Cir. 2004). Equitable estoppel applies: to prevent a party from taking a legal position inconsistent with an earlier statement or action that places his adversary at a disadvantage. The purpose of the doctrine of equitable estoppel is to ensure that no one will be permitted to "take advantage of his own wrong." In private suits, the traditional elements of equitable estoppel are: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his conduct will be acted upon or must so act that the party asserting the estoppel has the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the other party's conduct to his injury.

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Penny v. Giuffrida, 897 F.2d 1543, 1546-46 (10th Cir. 1990). First, the defendant has been aware for more than four years that Mr. Rutherford had not exhausted his administrative remedies. In their Answer to Complaint, filed on May 8, 2001, Defendants, including Dr. Cabiling, denied that Mr. Rutherford had exhausted his administrative remedies. Answer to Complaint, at 3, ¶ E.3. Second, Dr. Cabiling acted in such a way that Mr. Rutherford had the right to believe that Dr. Cabiling was not going to assert the non-exhaustion of remedies defense. Mr. Rutherford filed his complaint on December 5, 2000. Dr. Cabiling filed his Motion for Summary Judgment on June 24, 2005, raising this issue for the first time after four and a half years of litigation, including an appeal to the Tenth Circuit. On April 16, 2002, this Court denied Mr. Rutherford's March 8, 2002 Motion Seeking Injunction F.R.C.P. 65 and Motion Seeking Court Order F.R.C.P. 65 and noted, "it does not appear that plaintiff has exhausted his available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. §1997e(a)." Recommendation of United States Magistrate Judge, April 16, 2002, at 18. Although this Court raised the issue sua sponte, Dr. Cabiling did not assert Mr. Rutherford had not exhausted his administrative remedies until after Mr. Rutherford was appointed counsel, experts were hired by both Mr. Rutherford and Dr. Cabiling, and depositions of Mr. Rutherford, Dr. Cabiling, and experts had been taken. Mr. Rutherford, consequently, had the right to believe Dr. Cabiling was not going to assert the non-exhaustion of remedies defense. Third, Mr. Rutherford believed that he had exhausted all administrative remedies available to him. In his Complaint, Mr. Rutherford stated, "I have written in grievance form, numerous letters to the medical department in Co. Springs, Colorado. And, attempted the

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informal procedure twice to no avail. The resolves have been limited to those spoke of within this action." Complaint at 5, ¶E.2. Mr. Rutherford stated, when asked whether he had exhausted available administrative remedies, "Yes: When allowed and when redressed by the department in question." Id. at ¶E.3. In his Complaint, Mr. Rutherford also stated, "THIS LED THE PLAINTIFF TO FILE A GRIEVANCE FORM---WHICH---WAS NEVER ANSWERED AND LATER RETURNED. THE NOTE STATED THAT I WAS TO PERFORM AN INFORMAL; WHICH, THIS COURT CAN CLEARLY SEE OCCURRED ON NUMEROUS OCCASSIONS. EITHER WAY, PLAINTIFF DID IN FACT RE-FILE AN INFORMAL, WHICH CABILING ONCE AGAIN REFUSED TO ANSWER. HE RETURNED THEM TO THE PLAINTIFF AND I RETURNED THEM TO CASE MANAGER TRAINOR. THEY WERE NEVER RESPONDED TO NOR SPOKE OF AGAIN." Complaint at 9 (emphasis in original). At deposition, in response to a question regarding CDOC requirements for exhaustion of administrative remedies, Mr. Rutherford stated, If a letter was drafted and submitted to the proper authorities under Administrative Reg 100-19, which is an open door policy, has been standing, is standing to this day, then fair opportunity has been given to them. If they're given a problem and they don't address it, which is the same thing that happens in a grievance, if I'm going to file against Dr. Cabiling, per se, then I have the opportunity through the administrative regs to write a letter to his reviewing supervisor. And if he's aware of that problem and he fails to react or to act in a proper manner, then he could become liable at that point because he does have notice and that awareness just doesn't have to come from a grievance. Rutherford Deposition, at 105:1-16, attached as Exhibit 15. Mr. Rutherford, acted pursuant to the CDOC open door policy--outlined in Colorado Department of Corrections Administrative Regulation 100-19--instead of the grievance process. Mr. Rutherford stated, "There are grievances filed against Dr. Cabiling. Whether or not they're

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in Step 1, Step 2 form, I would say that that -- I utilized the open door policy and not necessarily the grievance at times due to the fact of -- of the severity of the injury." Exhibit 15, at 109:18-23 Furthermore, Mr. Rutherford did not believe the Step 3 grievance process was applicable to his circumstances because "it was asking me to open up medical records to a nonmedical personnel. So Frank Rabolli was not entitled to that information pursuant to Federal rules. So he was not give that opportunity for that very reason." Exhibit 15, at 110:5-11. Because of the severity of Mr. Rutherford's injury, he believed that he had exhausted his administrative remedies and was ignorant that his failure to follow the three-step process outlined in CDOC Administrative Regulation 850-04 would preclude his claim. Fourth, Mr. Rutherford and this Court have been prejudiced because Dr. Cabiling waited more than four years to raise this issue. On May 8, 2001, Dr. Cabiling denied that Mr. Rutherford had exhausted his administrative remedies. In its April 16, 2002 Order, this Court put Dr. Cabiling on notice that Mr. Rutherford had not exhausted his administrative remedies. Nonetheless, Dr. Cabiling proceeded with this litigation, as did Mr. Rutherford, who successfully appealed this Court's April 16, 2002 Order at the Tenth Circuit. In January 2004, Mr. Rutherford requested--and was granted--court appointed counsel. Mr. Rutherford has been represented by counsel since February 2004. Mr. Rutherford has obtained two experts, both of whom have drafted reports and have been deposed. Mr. Rutherford has deposed Dr. Cabiling, and Dr. Cabiling has deposed Mr. Rutherford. Dr. Cabiling also has retained two experts, both of whom have prepared reports related to this matter. Since 2000, this Court has entertained numerous filings, and has expended considerable resources, addressing this matter. Dr. Cabiling

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did not raise this issue properly, slept on his rights, and should not be awarded summary judgment. Nonetheless, if this Court finds that Dr. Cabiling is not estopped from raising the nonexhaustion of remedies defense, this Court should consider whether "`special circumstances' have been plausibly alleged that justify `the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 686. Mr. Rutherford, rather than follow the three-step grievance process, followed the CDOC open-door policy in communicating with CDOC staff regarding his injuries. In Hemphill, the plaintiff attempted to exhaust available administrative remedies by writing to the superintendent of the prison where he was incarcerated. Id. at 689. In Hemphill, the "special circumstances" justifying a bar to the non-exhaustion defense was the prisoner's "reasonable interpretation of those regulations [at issue]." Id. at 689. The court noted, "the appropriate standard for determining whether Hemphill's fear of retaliation justified his sending a letter to [the superintendent] rather than filing a level 1 grievance is the same as is applicable in cases of retaliation, that is, whether `a similarly situated individual of ordinary firmness,' would have been deterred from following regular procedures." Id. at 690 (internal citations omitted). The court also noted, "Hemphill `should have the opportunity to develop facts that would demonstrate that [defendant's actions] would deter a reasonable inmate from pursuing grievances.'" Id. (internal citation omitted). Similarly, Mr. Rutherford, who has alleged that Dr. Cabiling threatened retaliation, should have the opportunity to develop facts that further explain (1) why he did not exhaust his administrative remedies (See Exhibit 15, at 110:24-25 to 113:6); and (2) whether a similarly situated person of ordinary firmness would have been deterred from following administrative

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procedures. Summary judgment is not appropriate because Mr. Rutherford has made sufficient allegations, when viewed in the light most favorable to him, to establish special circumstances warranting an exception to the non-exhaustion defense. Whether for reasons of estoppel or "special circumstances," Mr. Rutheford has demonstrated disputed issues of material fact that defeat Dr. Cabiling's motion for summary judgment. Even though Mr. Rutherford has not exhausted available administrative remedies pursuant to CDOC Administrative Regulation 850-4, he should be able to pursue his claims against Dr. Cabiling at trial. IV. CONCLUSION This Court should deny Dr. Cabiling's Motion for Summary Judgment. Mr. Rutherford has provided sufficient evidence, when viewed in the light most favorable to him, to establish that (1) Dr. Cabiling acted with deliberate indifference for his serious medical needs; (2) Dr. Cabiling, in his supervisory capacity, acted with deliberate indifference; (3) Dr. Cabiling is not entitled to qualified immunity; and (4) the PLRA exhaustion of remedies requirement should not apply to Mr. Rutherford. Summary judgment, consequently, is not appropriate. WHEREFORE, for the foregoing reasons, Mr. Rutherford respectfully requests this Court deny Dr. Cabiling's Motion for Summary Judgment.

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Respectfully submitted this 14th day of July 2005. s/ D. Sean Velarde D. Sean Velarde BURNS, FIGA & WILL, P.C. Plaza Tower One, Suite 1030 6400 South Fiddlers Green Circle Englewood, CO 80111 Telephone: 303-796-2626 FAX: 303-796-2777 E-mail: [email protected] Attorneys for Plaintiff Kevin Rutherford

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of July 2005, I electronically filed the foregoing Response Brief in Opposition to Defendant's Motion for Summary Judgment with the Clerk of Court 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 nonCM/ECF participants in the manner indicated by the non-participant's name: By U.S. Mail Kevin Rutherford 138 West Uintah Street Colorado Springs, CO 80903

s/ D. Sean Velarde D. Sean Velarde Attorneys for Plaintiff Kevin Rutherford BURNS, FIGA & WILL, P.C. Plaza Tower One, Suite 1030 6400 South Fiddlers Green Circle Englewood, CO 80111 Telephone: 303-796-2626 FAX: 303-796-2777 E-mail: [email protected]

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