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

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, vs. 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.

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Defendants, BOARD OF COUNTY COMMISSIONERS OF ALAMOSA COUNTY, SHERIFF DAVID STONG, UNDERSHERIFF JOHN BIANCA, SGT. RON GOODMAN, RICK MARTINEZ, DEPUTY LISA BENEVIDEZ and CORPORAL GARY THOMAS, by and through their attorneys, Jonathan A. Cross, and Sean J. Lane of Cross & Liechty, P.C., hereby move this Court to dismiss all claims against them, pursuant to FED.R.CIV.P. 56. As grounds therefore, Defendants state as follows:

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I.

INTRODUCTION

This is a jail suicide case in which Plaintiffs bring two claims against Defendants pursuant to 42 U.S.C. § 1983. First, Plaintiffs claim that Defendants failed to provide adequate medical care and treatment to Lucas de Herrera while he was incarcerated in the Alamosa County Jail, in violation of his Eighth Amendment rights. Second, Plaintiffs claim that

Defendant Sheriff Stong specifically failed to properly train and supervise his jail deputies, which in turn caused the deputies to violate decedent's Eighth Amendment rights. Approximately one month before Lucas de Herrera's suicide on July 27, 2002, decedent was placed on suicide watch. He was then taken off this watch upon the request of his attorney and after an evaluation by a mental health professional. Three days before his death, decedent requested to see a mental health counselor, which request was passed on to the mental health facility, but who did not respond. Decedent did not request the counselor because of a fear that he might harm himself, and he showed no other signs of suicidal tendencies. He hung himself in the middle of the night. II. JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331. This action was authorized and instituted pursuant to 42 U.S.C. § 1983. III. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV. P. 56(c). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th

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Cir. 1990). Under Rule 56(c), the moving party does not have to show the absence of issues of material fact, but merely has to show an absence of evidence to support the non-moving party's case and identify supporting portions of the record. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). The Supreme Court has emphasized that summary judgment is to be viewed as an integral component of the Federal Rules and is not disfavored as a technical shortcut. Id., at 327, 2554. IV. ARGUMENT

Plaintiffs have sued the Alamosa County Board of County Commissioners, David Stong, Sheriff of Alamosa County, Undersheriff John Bianca, Sergeant Ron Goodman, former Deputy Rick Martinez, Deputy Lisa Benevidez and Corporal Gary Thomas in their individual capacities for failing to prevent the suicide of inmate Lucas de Herrera (hereinafter, "Inmate de Herrera" or the "decedent"). See Complaint, (hereinafter, "Exhibit A"), May 28, 2004, at ¶¶ 32 - 43. In addition, Plaintiffs' bring suit for a failure to properly train and supervise against Defendant Stong only. See Exhibit A, at ¶¶ 44 ­ 54. Both claims are brought pursuant to 42 U.S.C. § 1983. A. a. FIRST CLAIM FOR INADEQUATE MEDICAL TREATMENT

Plaintiff is unable to establish a claim upon which relief may be granted. As to Plaintiffs' first claim, the Supreme Court has recognized that prisoners have an

Eighth Amendment right to adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976). In order to prove their Eighth Amendment Claim, Plaintiffs bear the burden of proof and, in order to prevail, must prove by a preponderance of the evidence 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:

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1. That Inmate Lucas de Herrera had a serious medical need; 2. That Defendants were aware of Inmate Lucas de Herrera's serious need for medical care; and 3. That the Defendants were deliberately indifferent to the mental health needs of Lucas de Herrera. See 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); Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999); Federal Jury Practice & Instructions (5th Ed.), § 166.21. A medical need is "sufficiently serious" if the medical condition at issue "has been diagnosed by a physician as mandating treatment or...is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hunt, 199 F.3d at 1224. It has been established that "[p]rison officials violate the Eighth Amendment [only] when they are deliberately indifferent to the serious medical needs of prisoners in their custody." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (emphasis added). Therefore, an Eighth Amendment claim contains both an objective and a subjective component, such that the court must determine whether the deprivation is sufficiently serious, and whether the [government] official acted with a sufficiently culpable state of mind. Id.; Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). As for the subjective component of the test, to establish deliberate indifference "a plaintiff must establish that the defendant(s) knew [the inmate] faced a substantial risk of harm and disregarded that risk `by failing to take reasonable measures to abate it.'" Hunt, 199 F.3d at

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1224 (quoting Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994)); Sealock, 218 F.3d at 1209. The facts which are material to the elements of this claim are as follows: 1. In early 2002, Lucas de Herrera had been charged with an offense resulting in a

45-day jail sentence in the Alamosa County Jail (hereinafter, the "Jail"). The sentence was ultimately modified to include a community corrections component and drug treatment. See Exhibit A, at ¶¶ 15. 2. Lucas de Herrera absconded from the drug program and was a fugitive for several

months. See Exhibit A, at ¶ 16. On June 12, 2002, Lucas de Herrera turned himself in to Shawn Woods, an investigator with the District Attorney's office, and was reincarcerated at the Jail. See Deposition of Elizabeth Medina (hereinafter, "Exhibit B"), March 5, 2005, at p. 123:1 ­ 11; see Deposition of Julie Westerman (hereinafter, "Exhibit C"), December 15, 2005, at p. 18:18 ­ 25, p. 20:2 ­ 14; see Exhibit A, at ¶ 17. 3. Two weeks later, on June 24, 2002, Lucas de Herrera was involved in an

attempted escape with a fellow inmate named Jimmy Gollihugh. At approximately 5 p.m., both Mr. de Herrera and Mr. Gollihugh were working in the kitchen. In the kitchen there is a "hatch" which leads out of the jail. The hatch is equipped with an alarm which went off while the two inmates were working in the kitchen. When Deputies arrived, they found that the padlock which secured the hatch had been opened and was damaged in a way that made it impossible to re-lock it. Both inmates told Deputies that the other had been the one attempting to escape. See Exhibit C, at p. 45:24 ­ 25, p. 46:1 - 25, p. 47:1 ­ 25, p. 48:1 ­ 8; see Deposition Exhibits 10A and 10.

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4.

The next day, on June 25, 2002, Lucas de Herrera contacted Technician Jason

Maestas through the intercom in his cell. See Deposition Exhibit 6. He told Maestas that he was having "crazy thoughts in his head" and that he was thinking of killing himself. Id. 5. Deputies contacted the San Luis Valley Comprehensive Mental Heath Facility

(hereinafter, "Mental Health") immediately and within an hour counselor Kristi Ninnemann reported to the jail. Id. She spoke with Lucas de Herrera for approximately 15 minutes and concluded that Lucas de Herrera had no mental health issues, but rather was just making an attempt to be hospitalized so he could leave the Jail. Id.; see Deposition of Lisa Benevidez (hereinafter, "Exhibit D"), December 14, 2005, at p. 38:5 ­ 21, p. 39:11 ­ 25, p. 40:1 ­ 6; see Deposition Exhibit 15. 6. Inmate de Herrera advised Ms. Ninnemann that he had cut his wrists with a pencil

at some point prior to her arrival. See Deposition Exhibit 6. Ms. Ninnemann advised jail personnel that there were numerous small cuts on Inmate de Herrera's wrists, none of which required medical attention. See Exhibit D, at p. 46:18 ­ 25, p. 47:1; see Deposition Exhibits 6 and 15. However, several hours later paramedics were called by jail personnel after Inmate de Herrera complained that his wrists hurt. Id. Inmate de Herrera admitted to his mother that he had not meant to scratch his wrists with the pencil; he had been running the pencil back and forth on his wrist, not really thinking about what he was doing. See Exhibit B, at p. 152:3 ­ 25. p. 153:1 ­ 5. 7. Inmate de Herrera was placed on "suicide watch," which meant that he was

placed in a cell where he could be constantly observed. This was done in order to comply with

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the recommendations made by Ms. Ninnemann following her contact with Inmate de Herrera. See Deposition Exhibit 15. 8. The jail convened an internal disciplinary hearing on June 29, 2002, regarding the

attempted escape. The charging officer at the hearing was former Deputy Julie Westerman, and the hearing was conducted by several other deputies. Civilian workers who were in the kitchen during the escape attempt said that de Herrera appeared to be acting as a "lookout" while Gollihugh broke the lock. At the hearing, both inmates were found guilty and were placed on "administrative lockdown" status for 75 days. See Deposition of Dave Stong, (hereinafter, "Exhibit E"), December 13, 2005, at p. 76:3 ­ 5, p. 84:3 - 15; see Deposition Exhibit 10A, 10 and 14. 9. On or about July 2, 2002, Inmate de Herrera's public defender, Ms. Anna Rivera,

made a formal request that he be re-evaluated by Mental Health and taken off of "suicide watch." Ms. Ninnemann returned to the jail and performed an evaluation. She found that Inmate de Herrera was no longer a threat to himself and could be taken off of "suicide watch" and returned to a normal cell. See Exhibit E, at p. 67:13 ­ 25, p. 68:1 ­ 3. 10. Three weeks later, on July 24, 2002, Inmate de Herrera submitted a written inmate

request (hereinafter, a "kite") to see a counselor at some time during the graveyard shift. This kite was received during the early morning hours. See Exhibit D, at p. 26:3 ­ 7; see Deposition Exhibit 2; see Deposition of Gary Thomas (hereinafter, "Exhibit F"), December 13, 2005, at p. 19:13 ­ 16; see Deposition of Ronald Goodman (hereinafter, "Exhibit G"), December 13, 2005, at p. 31:4 - 7. The kite was addressed to Defendant Goodman, who was a day-shift officer and was the Sergeant in charge of the operation of the Jail. See Exhibit G, at p. 16:3 ­ 8; see Exhibit

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D at p. 27:7 ­ 9; see Deposition Exhibit 2. The kite requests that Inmate de Herrera be allowed to see a mental health counselor "today." See Deposition Exhibit 2. 11. The kite made no mention of suicidal thoughts by the decedent and decedent

showed no other signs of contemplating suicide. See Id. Inmate de Herrera's mother, Plaintiff Medina, had telephone contact with him regularly while he was in the Jail. See Exhibit B, at p. 157:20 ­ 25. Based on the conversations that Plaintiff Medina had with her son on the phone, she did not suspect that he would commit suicide. Id., at 160:3 ­ 9. Plaintiff Medina probably knew her son better than anybody. Id., at 160:10 ­ 11. 12. Defendant Benevidez had contact with Inmate de Herrera during the evening of

July 23 or the early morning of July 24, 2002. She noted that he was not acting any differently than normal. In addition, before she received the kite from Inmate de Herrera, Defendant Benevidez had checked him in his cell and observed him sleeping. See Exhibit D, at p. 26:25, p. 27:1 ­ 6, p. 28:11 - 17. 13. Defendant Benevidez put a note in the departmental "pass-on" logs, which are

given by one shift to the next, informing the day shift that Inmate de Herrera was asking to speak with Mental Health, but that graveyard deputies had observed no suicidal tendencies. See Deposition Exhibit 3; see Exhibit D, at p. 37:21 ­ 25. Specifically, the "pass-on" read: "Days. The boys in lockdown cannot handle their punishment and put in a request to see mental because they need counseling. If you get a chance, can you see if mental health wants to talk to them? Nothing we've seen on graves indicates any suicidal tendencies." See Deposition Exhibit 3. This "pass-on" was intended to alert the day shift, of which Defendant Goodman, the Jail supervisor was a member, that Inmate de Herrera had made a request to see a counselor from

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Mental Health. See Exhibit D, at p. 32:1 ­ 11. Even if she had not written the note in the "passon" logs, day shift officers would still have received the kite from Inmate de Herrera when they checked the kites from the evening, and responded to his request. See Id., at p. 33:2 ­ 4. 14. By 8:30 a.m. on July 24, 2002, Defendant Thomas received the kite and called

Mental Health to request a counselor for Inmate de Herrera. See Exhibit F, at p. 18:21 ­ 25, p. 19:1 ­ 6, p. 20:2 - 8; see Deposition Exhibit 2. Defendant Thomas got an answering machine at Mental Health and left a message to request assistance for Inmate de Herrera. See Exhibit F, at p. 20:10 ­ 14. Defendant Goodman was present when Defendant Thomas made this call. See Exhibit F, at p. 20:24 ­ 25, p. 21:1; see Exhibit G, at p 31:9 ­ 19, p. 32:1 - 5. 15. The counselor never came from Mental Health to visit Inmate de Herrera. See

Exhibit G, at p. 51:19 ­ 22. 16. Alamosa Jail Deputies (hereinafter, "Deputy" or "Deputies") are not mental

health professionals, and receive no formal mental health training as part of their training with the agency. See Exhibit E, at p. 44:18 ­ 25, p. 45:1 ­ 2; see Deposition of John Bianca (hereinafter, "Exhibit H"), December 13, 2005, at p. 17:22 ­ 25, p. 18:1 - 2. 17. If a Deputy perceives an inmate to behave in some way that might indicate a

mental illness, the Deputy on duty will contact a professional mental health counselor from Mental Health. See Exhibit E, at p. 47:6 ­ 13, p. 51:14 ­ 25, p. 52:1; see Exhibit G, at p. 37:17 25. 18. If an inmate submits a request to see a counselor, a Deputy will contact Mental

Health to seek assistance. The Deputy has no discretion in this decision. See Exhibit E, at p. 48:11 ­ 20, p. 60:12 - 25.

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19.

When contacted, Mental Health does not necessarily send a counselor

immediately. A counselor may not even arrive until the next shift when the Deputy who originally initiated the contact will no longer be on duty. See Exhibit G, at p. 41:21 ­ 25. 20. Prior to the request made by Lucas de Herrera, there had never been an instance

when a counselor did not respond to the Jail after Mental Health was contacted. See Exhibit G, at p. 51:9 ­ 10, p. 52:19 - 22. 21. On July 22, 2002, Lucas de Herrera was sentenced to serve a term of one year in

the Department of Corrections. See Exhibit A, at ¶ 18. 22. On July 27, 2002, Lucas de Herrera was housed in cell A103. He was still in

lockdown, which restricted his ability to leave his cell for more than one hour per day. See Exhibit A, at ¶ 23. 23. Shortly after 3:00 a.m. on the morning of July 27, 2002, Deputy Jason Maestas

was performing a routine hourly cell check and observed Inmate de Herrera dead in his cell, where he had apparently hung himself from a bookshelf in his cell with a length of cloth apparently woven from bed sheets. See Exhibit E, at p. 85:20 ­ 22, p. 89:9 ­ 25; see Deposition Exhibit 1. In retrospect, decedent apparently was suffering from a serious medical need for psychological counseling, although this was not known to any Defendant. Indeed, it is unknown when this condition commenced. Ms. Kristi Ninnemann, a trained mental health worker, had informed Jail personnel that Inmate de Herrera was not a threat to himself and should be taken off "suicide watch" prior to his death. Deputies who had contact with him before his death saw no signs of suicidal behavior. In fact even decedent's mother, who had regular telephone

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conversations with Inmate de Herrera, did not believe that her son was suicidal. Plaintiffs are unable to establish when decedent acquired this "serious medical need". At the very least, Plaintiffs cannot provide evidence that Defendants knew that decedent had this medical problem prior to his death and, therefore, their claim must fail for lack of knowledge that decedent had a serious medical need. Plaintiffs cannot establish that in the weeks prior to decedent's death, Defendants acted with deliberate indifference to his serious medical need. The record is clear that each time Defendants became aware of any mental health problem on the part of the decedent, they took appropriate action and contacted Mental Health for assistance. Jail Deputies are not trained mental health professionals. The policy of the Jail was to contact Mental Health if an inmate requested a counselor, or if a Deputy believed that an inmate had a mental health issue. When Inmate de Herrera scratched his wrists with a pencil, Mental Health was called. Ms. Ninnemann, a trained mental health counselor, believed that Inmate de Herrera was "malingering", in order to be transferred out of the Jail. Although this was her opinion, out of an apparent abundance of caution she recommended that Inmate de Herrera be placed on "suicide watch." Jail personnel followed her recommendations. When Inmate de Herrera's public defender requested a re-evaluation by Mental Health, Ms. Ninnemann recommended that he be removed from "suicide watch." Again, Jail personnel followed her recommendation. When Inmate de Herrera submitted a kite to Defendant Goodman wherein he requested a counselor, a phone call was placed to Mental Health to fulfill his request, pursuant to departmental policy. Although Mental Health had never before failed to respond to these calls, for some reason it did not respond in this case and decedent committed suicide two

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and one-half days after the call was made to Mental Health. Thus, the only possible failure by any of the Defendants herein is that they failed to follow-up with Mental Health. Given that decedent exhibited no other suicidal tendencies and that he did not even inquire regarding the delay in seeing the counselor, the failure to follow-up cannot be characterized as anything more than an administrative failure, which does not suggest deliberate indifference. Furthermore, this failure implicates only Defendant Thomas, as he did not follow-up with Mental Health to see if a counselor had been sent out. However, it is also clear that Mental Health had never failed to respond to a phone call from the jail to request a counselor before, so this was a novel situation in his experience at the Jail. b. The individual Defendants are entitled to qualified immunity. The purpose of a qualified immunity defense under 42 U.S.C. § 1983 is to limit the negative effects that the risks of civil liability would otherwise have on government operations at all levels, federal state and local. See Anderson v. Crieghton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038 (1987). Qualified immunity, as established under § 1983, serves to shield officials from civil liability unless their actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). "The linchpin of qualified immunity is objective reasonableness." Sanders, 192 F.Supp.2d at 1105; see Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. "So long as the officer's actions, viewed from the perspective of the officer at the time, can be seen within the range of reasonableness, then no liability will attach." See Id. With respect to qualified immunity and its relationship to individual officer liability in a jail suicide case, it is clear that qualified immunity is available in cases where an inmate commits

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suicide while in custody. Barrie v. Grand County, Utah, 119 F.3d 862, 866 (10th Cir. 1997). This is of course dependent on the individual facts of each case. It has been clearly established that jail officers must provide adequate medical care to inmates in their charge. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1316 (10th Cir. 2002). However, there is no clear direction regarding what an officer should do if he acts reasonably under the circumstances to provide medical care, and the medical care provider fails to fulfill their obligation to provide treatment. Each of the Defendants involvement in this matter can be outlined as follows: 1. The Board of County Commissioners had no direct contact with the decedent in

this case. They have no supervisory authority over the Jail, or any employee of the Sheriff. See Motion to Dismiss (hereinafter, "Exhibit J"), September 13, 2004. See Bristol v. Bd. of County Comm'rs., 312 F.3d 1213, 1219 (10th Cir. 2002). 2. In this matter Sheriff David Stong had no personal interactions whatsoever with

Inmate de Herrera. See Exhibit E, at p. 49:11 ­ 15. At least with respect to the claim against him in his individual capacity, Defendant Stong should be dismissed from this suit. 3. Undersheriff John Bianca had no direct contact with the Plaintiff in this matter.

He was responsible for denying decedent's appeal of his attempted escape conviction at an internal hearing which resulted in decedent being placed on lockdown status. See Exhibit H, at p. 48:23 ­ 25, p. 49:1 ­ 21; see Deposition Exhibit 5. 4. Sergeant Ron Goodman was the supervisor for the Jail facility, and was

responsible for the direct supervision of Deputies working in the Jail. He was aware that the decedent requested a counselor from Mental Health and was present when Defendant Thomas

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made the phone call to Mental Health to request a counselor for the decedent, pursuant to Jail policy. See Exhibit G, at p. 16:3 ­ 8, p 31:9 ­ 19, p. 32:1 ­ 5. 5. Former Deputy Rick Martinez was the senior deputy in the early morning of July

27, 2002. He was responsible for ordering Deputy Maestas to call paramedics and supervising Deputies immediately following Deputy Maestas' discovery of the decedent's body. See Exhibit I, at p. 22:22 ­ 25, p. 23:1 ­ 6. 6. Deputy Lisa Benevidez received the kite from Inmate de Herrera on July 24,

2002, requesting that Defendant Goodman schedule a visit from a Mental Health counselor. She drafted a note in the "pass-on" logs to inform the day shift that the decedent had made this request. See Exhibit D, at p. 37:21 ­ 25. 7. Corporal Gary Thomas received the kite submitted by Inmate de Herrera and

called Mental Health to request a counselor to visit him before 8:30 a.m. on July 24, 2002, pursuant to Jail policy. This was done in the presence of his supervisor, Defendant Goodman. See Exhibit F, at p. 18:21 ­ 25, p. 19:1 ­ 6, p. 20:2 ­ 8, p. 20:10 ­ 14, p. 20:24 ­ 25, p. 21:1; see Exhibit G, at p 31:9 ­ 19, p. 32:1 - 5. The individual Defendants have qualified immunity as to this claim, as it is not clearly established that law enforcement officers are liable for a failure on the part of a third-party medical agency to respond to a call for assistance. B. SECOND CLAIM FOR A FAILURE TO TRAIN AND SUPERVISE

Plaintiffs' second claim is a derivative claim predicated upon an alleged failure to train and supervise on the part of Defendant Stong. In order to prove a violation of 42 U.S.C. § 1983

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under a theory of a "failure to train", the Plaintiffs bear the burden of proof to establish the following elements by a preponderance of the evidence: 1. That an officer deprived decedent of his access to medical treatment; 2. That Defendant Stong's training program was inadequate to train its officers and employees to carry out their duty to provide adequate medical treatment; 3. 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 4. The failure of Defendant Sheriff Stong to provide proper training caused the Constitutional injury to Lucas de Herrera. 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. As there was no violation of Inmate de Herrera's Eighth Amendment rights, there could be no violation by Defendant Stong for a failure to train or supervise. However, even if there were a violation of Inmate de Herrera's rights under the Eighth Amendment, it is clear that the Jail's training program was adequate to train its Deputies to care for inmates who have mental health issues. At all pertinent times with respect to this lawsuit, the Jail had policies and procedures in place regarding the treatment of inmates with mental health complaints. See Exhibit E, at p.

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46:20 ­ 25, p. 47:1 ­ 5. Deputies were underwent continuous training regarding departmental policies. See Exhibit G, at p. 19:7 ­ 12; see Exhibit E, at p. 25:24 ­ 25, p. 26:1 - 3. Because Deputies are not mental health professionals, they were trained to contact Mental Health to receive professional assistance if there was a question about an inmate's mental condition, or if an inmate requested to see a counselor. See Exhibit E, at p. 47:6 ­ 13, p. 51:14 ­ 25, p. 52:1; see Exhibit G, at p. 37:17 - 25. Deputies have no discretion with respect to this contact. See Exhibit E, at p. 48:11 ­ 20, p. 60:12 - 25. The fact that the Jail's training program directly addressed the issue of an inmate's mental health, and specific and reasonable techniques to resolve mental health issues (i.e. contacting a professional counselor from Mental Health), is ample proof that Defendant Stong was not deliberately indifferent to the need for training in this area. Furthermore, whenever decedent made his alleged suicidal condition known to the Jail staff, the staff promptly provided him treatment. As Plaintiffs cannot establish that Defendant Stong was deliberately indifferent to the necessity of training, nor can they establish that Inmate de Herrera suffered an injury as a result of his "inadequate" training program, Plaintiffs' second claim must also fail as a matter of law. WHEREFORE, for the foregoing reasons, Defendants respectfully request this Court grant Summary Judgment in favor of Defendants Board of County Commissioners of Alamosa County, Stong, Bianca, Goodman, Martinez, Benevidez and Thomas, dismiss all claims against Defendants, enter judgment on their behalf against Plaintiffs, award Defendants their costs and attorney's fees, and provide such other relief as the court deems proper.

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Respectfully submitted this 31st day of January 2006.

By:

/s Sean J. Lane Jonathan A. Cross Sean J. Lane CROSS & LIECHTY, P.C. 400 So. Colorado Blvd., Suite 900 Denver, Colorado 80246 Tel: (303) 333-4122 Email: [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on this January 31, 2006, a true and correct copy of the above and foregoing BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was, unless otherwise indicated, filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: David A. Lane, Esq. Marcel Krzystek, Esq. KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Suite 400 Denver, Colorado 80202 (Via Electronic Filing) Stefani Goldin, Esq. STEFANI GOLDIN LLC 125 S. Howe Street, Suite 890 Fort Collins, Colorado 80521 (Via Electronic Filing)

s/

Linda DeVico

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