Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 04-cv-1107-REB-CBS ELIZABETH MEDINA, Individually as mother of and as Personal Representative of the Estate of LUCAS de HERRERA, and MARGARITO de HERRERA, Individually as father of LUCAS de HERRERA, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS, ALAMOSA COUNTY, COLORADO, in both their individual capacities; SHERIFF DAVID STONG, in his individual capacity; UNDERSHERIFF JOHN BIANCA, in his individual capacity; SGT. RON GOODMAN, in his individual capacity; FORMER DEPUTY RICK MARTINEZ, in his individual capacity; DEPUTY LISA BENEVIDEZ, in her individual capacity; CORPORAL GARY THOMAS, in his individual capacity. Defendants. ______________________________________________________________________________ PROPOSED FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATE OF CONFERENCE

The Pretrial Conference was held on January 25, 2006 at 9:30 a.m. in Courtroom A701, Alfred A. Arraj United States Court House 901 19th Street in Denver, Colorado 80294. 2. JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, supplemental jurisdiction is conferred by 28 U.S.C. § 1367(a). pursuant to 42 U.S. C. § 1983. 3. CLAIMS AND DEFENSES This action is authorized and instituted

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Plaintiffs' Claims: Plaintiffs are the parents and personal representatives of the estate of Lucas de Herrera, who hung himself on July 27, 2002 while incarcerated at the Alamosa County Jail. Plaintiffs have brought suit against Alamosa County, as well as its Sheriff and several deputies, alleging that Defendants' conduct preceding Lucas's death constituted a deliberate indifference to his serious mental health needs which ultimately resulted in Lucas's suicide. Specifically, Defendants marginalized the significance of Lucas's prior suicide attempt, in which Lucas attempted to cut his wrists only one month prior to his suicide by hanging. In addition, Defendants failed to follow-up and ensure that Lucas received the mental health counseling which he specifically requested approximately three days before his suicide. Defendants also refused Lucas access to clergy because his priest was not on Defendants' "approved" clergy list. Finally, notwithstanding their awareness of Lucas' prior suicide attempt and his request for counseling and clergy, Defendants kept Lucas in an ordinary cell containing bedsheets and a bookshelf. Defendants were fully aware that the bookshelf/bedsheet combination was a danger to suicidal inmates because, only three months prior, another inmate hung himself by employing nearly the same method. Nevertheless, Defendants placed Lucas into such a cell. On July 27, 2002, Lucas hung himself by attaching the bedsheet to the bookshelf, tying the bedsheet around his neck, and hanging himself. Plaintiffs assert two claims against Defendants: 1. Eighth Amendment Failure to Provide Medical Care and Treatment in violation of

42 U.S.C. § 1983. Plaintiffs have the burden of proof on this claim and, in order to prevail, must establish the following elements: 1) that Lucas de Herrera had a serious medical need; 2) that

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Defendants were aware of his serious medical need; and, 3) that Defendants were deliberately indifferent to Lucas de Herrera's serious medical need. 1 2. Eighth Amendment Failure to Train and Supervise in violation of 42 U.S.C. §

1983. Plaintiffs have the burden of proof on this claim, and, in order to prevail, must establish the following elements: 1) that Lucas de Herrera was denied treatment for a serious medical need; 2) that denial arose under circumstances that constitutes a usual and recurring situation with which jail deputies must deal; 3) the inadequate training demonstrates a deliberate indifference on that part of Defendant Stong toward persona with whom his deputies come into contact; and 4) that the failure to provide adequate training cause the Constitutional injury to Lucas de Herrera and the Plaintiffs . 2
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Defendants disagree to some extent with Plaintiffs' statement of the elements of the first claim. In order to prove the Eighth Amendment Claim of Failure to Provide Medical Care and Treatment, in Violation of 42 U.S.C. § 1983, Defendants argue that Plaintiffs have the burden of proof with respect to this claim and, in order to prevail, must prove that the Defendant jail officials exhibited deliberate indifference to Lucas de Herrera's serious medical needs by proving the following elements by a preponderance of the evidence: 1. 2. 3. That Lucas de Herrera had a serious medical need; That Defendants were aware of Lucas de Herrera's serious need for medical care; and That Defendant jail officials, with deliberate indifference to the illness of Lucas de Herrera, failed to provided needed medical care.

A "serious medical need" is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. See U.S. CONST. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976); Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992); Wilson v. Seiter, 501 U.S. 294 (1991); Federal Jury Practice & Instructions (5th Ed.), § 166.21. 2 Defendants disagree with Plaintiffs' statement of the elements of their second claim as well. In order to prove a violation of 42 U.S.C. § 1983 under a theory of a "failure to train", the Plaintiff bears the burden of proof to establish the following elements by a preponderance of the evidence: 1. 2. That Defendant Sheriff Stong's training program was inadequate to train its officers and employees to carry out their duties; The need for more training or different training is so obvious, and the inadequacy so likely to result in the violation of Constitutional rights, that Defendant Sheriff Stong can reasonably be said to have been deliberately indifferent to the need for such training; and The failure of Defendant Sheriff Stong to provide proper training was a cause of injury to Lucas deHerrera.

3.

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Defendant's Defenses: 1. Defendants deny Plaintiffs' allegations and state that Lucas de Herrera was

provided with adequate medical care while incarcerated in the Alamosa County Jail, and under no circumstances were Defendants deliberately indifferent to Lucas de Herrera's serious medical needs. Defendants further deny that Defendant Stong failed to properly train and supervise Alamosa County Jail personnel. Defendants deny all of Plaintiffs' claimed damages.

Furthermore, the individual Defendants have qualified immunity against liability in this matter. In addition, the Board of County Commissioners of Alamosa County is not a proper defendant in this case. Further, Defendants object to the addition within Plaintiffs' claims of what appears to be a new claim for failing to allow Mr. de Herrera's chosen priest to visit him in the jail facility. This is the first mention made that Plaintiffs are associating any portion of their claim with an alleged act relating to Mr. de Herrera's clergy. Defendants assert the following affirmative defenses: 1. 2. Plaintiffs fail to state a claim upon which relief can be granted. Defendants Stong, Bianca, Goodman, Martinez, Benevidez and Thomas are

entitled to qualified immunity as to Plaintiffs' claims. 3. 4. Plaintiffs failed to mitigate their damages. At all times material hereto, Lucas de Herrera was accorded all rights, privileges,

and immunities guaranteed him by the Constitution and laws of the United States.

See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978); City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808 105 S.Ct. 2427 (1985); Board of County Comm'rs. of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382 (1997); Federal Jury Practice & Instructions (5th Ed.), § 165.26.

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5.

Plaintiffs' injuries or damages, if any, were the result of the actions or inactions of

third parties over whom the Defendants had no control or right to control. 6. Defendants are not liable under the facts and circumstances alleged in Plaintiffs'

Complaint because no improper acts were committed by them and they did not in any way personally participate in any alleged improper acts toward Lucas de Herrera, nor did they authorize, ratify, direct or control any alleged improper acts of any person toward Lucas de Herrera. 7. At all times relevant to Plaintiffs' Complaint, the Defendants acted in good faith

and are, therefore, not liable to the Plaintiffs. 3. 1. STIPULATIONS

Defendant Stong was the Sheriff of Alamosa County at all times relevant to the

subject matter of this litigation. 2. Defendant Bianca was employed as an Alamosa County Sheriff's Deputy at all

times relevant to the subject matter of this litigation. 3. Defendant Goodman was employed as an Alamosa County Sheriff's Deputy at all

times relevant to the subject matter of this litigation. 4. Defendant Martinez was employed as an Alamosa County Sheriff's Deputy at all

times relevant to the subject matter of this litigation. 5. Defendant Benevidez was employed as an Alamosa County Sheriff's Deputy at

all times relevant to the subject matter of this litigation. 6. Defendant Thomas was employed as an Alamosa County Sheriff's Deputy at all

times relevant to the subject matter of this litigation.

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7.

At the time of his death on July 27, 2002, Lucas de Herrera was an inmate at the

Alamosa County Jail. 8. 9. Lucas de Herrera was an inmate at the Alamosa County Jail on June 25, 2002. Lucas de Herrera was seen by one or more staff members of the San Luis Valley

Regional Medical Center on June 25, 2002. 10. 11. Lucas de Herrera died after hanging himself in his cell on July 27, 2002. On or about April 24, 2002, J.D. Haefli, while an inmate at the Alamosa County

Jail, committed suicide by hanging himself with a bedsheet in his cell. 5. PENDING MOTIONS

Defendants filed a Motion for Summary Judgment on January 31, 2006. Plaintiffs responded to this Motion on February 20, 2006. Defendants' reply is due on March 6, 2006. 6. a. Non-expert Witnesses: For the Plaintiff: (1) Witnesses who will be present at trial: WITNESSES

Margarito de Herrera, P.O. Box 132, San Luis, Colorado 81152, (719) 672-3139. Will testify in person. Elizabeth Medina, P.O. Box 521, San Luis, CO 81152, (719) 672-0200. Will testify in person. (2) Witnesses who may be present at trial:

Defendants Stong, Bianca, Goodman, Martinez, Benevidez, and Thomas. Harry Alejo, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Gary Armstrong, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person.

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Floren Benevidez, 106 Blanca Avenue, Alamosa, CO 81101, (719) 589-2511. Will testify in person. Cynthia Contreras, 901 Pawnee Avenue, Ft. Morgan, CO 80701, (970) 542-0131. Will testify in person. Margarito Joshua de Herrera, P.O. Box 521, San Luis, CO 81152, (719) 672-0200. Will testify in person. Randy Aaron de Herrera, #111728, Buena Vista Minimum Correctional Facility, P.O. Box 2005, Buena Vista, CO 81211. Will testify in person. Greg Demko, 8745 County Road 9 South, Alamosa, CO 81101, (719) 589-3671. Will testify in person. Anthony Espinoza, #125118, Huerfano County Correctional Center, 304 Ray Sandoval Street, Walsenberg, CO 81089. Will testify in person. Jared Gallegos, current address and telephone number unknown. (former Alamosa County Jail inmate). Will testify in person. Jimmy Gollihugh, #115054, current address and phone number unknown (believed to be a community corrections client). Will testify in person. Jason Gonzales, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Ana Guevara, 601 3rd Street, Alamosa, CO 81101, (719) 589-6005. Will testify in person. Curtis Hartshorn, Church of Christ (Alamosa), 408 Victoria Avenue, Alamosa, CO 81101, (719) 589-4236. Will testify in person. Deborah Johnson, M.D., 2743 E. Las Vegas Street, Colorado Springs, CO 80906 (719) 3902450. Will testify in person. Bruce Kading, current address unknown, (505) 751-1978. Will testify in person. Jason Maestas, 343 Costilla Street, Alamosa, CO 81101, (719) 589-2900. Will testify in person. Fernando Martinez, 8745 County Road 9 South, Alamosa, CO 81101, (719) 589-3671. Will testify in person. Ricardo Martinez, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Aaron Moon, 702 4th Street, Alamosa, CO 81101, (719) 589-4991. Will testify in person. 7

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Kristi Ninnemann, current address and telephone number unknown. Will testify in person. Gerry Palomino, Colorado Bureau of Investigations, 3416 N. Elizabeth Street, Pueblo, CO 81008, (719) 253-3807. Barbara Ray, Colorado Bureau of Investigations, 3416 N. Elizabeth Street, Pueblo, CO 81008, (719) 253-3807. Kevin Rogers, M.D., P.O. Box 1549, Alamosa, CO 81101, (719) 589-4271. Will testify in person. Judith Ruybal, 8745 County Road 9 South, Alamosa, CO 81101, (719) 589-3671. (Last known address and phone number). Will testify in person. Michael D. Sadar, Colorado Bureau of Investigations, 3416 N. Elizabeth Street, Pueblo, CO 81008, (719) 253-3807. LeAnn Samora, 106 Blanca Avenue, Alamosa, CO 81101, (719) 589-2511. Will testify in person. Fred Stoney, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Larry Rumrill, 1315 17th Street, Alamosa, CO 81101, (719) 378-2545. Will testify in person. Robert Trujillo, current address and telephone number unknown. (former Alamosa County Jail inmate). Will testify in person. Julie Westerman, 8481 County Road 8 South, Alamosa, 81101, (719) 587-0285. Will testify in person. Chris Westerman, 8481 County Road 8 South, Alamosa, 81101, (719) 587-0285. Will testify in person. Shawn Woods, 426 San Juan Avenue, Alamosa, CO 81101, (719) 589-3691. Will testify in person. Mary Young, 8745 County Road 9 South, Alamosa, CO 81101, (719) 589-3671. Will testify in person. Any witness necessary for rebuttal. Any witness necessary for impeachment.

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For the Defendant: (1) Witnesses who will be present at trial:

Sheriff David Stong, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. John Bianca, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Ronald Goodman, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Rick Martinez, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Lisa Benevidez,1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. Gary Thomas, 1315 17th Street, Alamosa, CO 81101, (719) 589-6608. Will testify in person. (2) Witnesses who may be present at trial:

Any witness endorsed by Plaintiff. Any witness necessary for rebuttal. Any witness necessary for impeachment. b. Expert Witnesses For the Plaintiff: None. For the Defendant: None. 7. a. List of Exhibits (1) (2) b. Plaintiffs': See attached Exhibit List. Defendants': See attached Exhibit List. EXHIBITS

Copies of listed exhibits must be provided to opposing counsel no later

than five days after the Final Pretrial Conference. The objections contemplated by FED.R.CIV.P.

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26(a)(3) shall be filed with the clerk and served (by hand delivery or facsimile) no later than eleven days after the exhibits are provided.

8. Discovery has been completed. 9. None. 10. Undersigned counsel certify that: a.

DISCOVERY

SPECIAL ISSUES

SETTLEMENT

Counsel for the parties and any pro se party met (in person) (by telephone) on

_____, 2006, to discuss in good faith the settlement of the case. b. The participants in the settlement conference, including counsel, party

representatives, and any pro se party. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party (do) (do not) intend to hold future

settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there is: Some to little possibility of settlement. f. The date of the next settlement conference before the magistrate judge or other

alternative dispute resolution method. g. Counsel for the parties and any pro se party considered ADR in accordance with

D.C.COLO.L.CivR.16.6. 11. OFFER OF JUDGMENT 10

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Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER

Hereinafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supercedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. The Final Pretrial Order may be amended, modified, or supplemented by the anticipated Trial Preparation Conference Order or any order entered during the trial preparation conference, which subsequent orders are anticipated and incorporated by such reference. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS Trial will be to a jury Trial Date: May 8, 2006, and is expected to take five days Situs of trial: Denver, CO, at the Alfred A. Arraj United States Court House Trial Preparation Conference Date and Time: May 5, 2006, 9:00 a.m.

1. 2. 3. 4.

DATED this ____ day of March, 2006.

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BY THE COURT:

____________________________________ United States Magistrate Judge APPROVED:

______________________________ David A. Lane, Esq. Marcel Krzystek, Esq. KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Ste 400 Denver, CO 80202 (303) 571-1000 ATTORNEY FOR PLAINTIFF

______________________________ Jonathan A. Cross, Esq. Sean A. Lane, Esq. CROSS & LIECHTY, P.C. 400 S. Colorado Blvd., Suite 900 Glendale, CO 80246 (303) 388-7711 ATTORNEY FOR DEFENDANTS

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