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

Case 1:04-cv-01077-CBS-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action Number: 04-CV-01077-CBS-PAC STEPHEN JEROME GRACE, Plaintiff, v. DEPUTY SHERIFF APODOCA, DEPUTY SHERIFF HURDOR HORALD, NURSE LPN LISA, NURSE ASSISTANCE [sic] DA, and DR. CRUM, Defendants. ______________________________________________________________________________ DEFENDANT PETER CRUM, M.D.'S SUPPLEMENTAL REPLY IN SUPPORT OF SUMMARY JUDGMENT ______________________________________________________________________________ COMES NOW the Defendant, Peter Crum, M.D., by and through counsel, and respectfully submits the following Supplemental Reply in Support of Summary Judgment:

I.

INTRODUCTION During the July 7, 2005 status conference, the Court granted Plaintiff's request to file a

supplemental response to Defendant's Motion for Summary Judgment. Plaintiff filed his "Motion of Objection to Defendant's Summary Judgment" on July 14, 2005 (hereinafter referred to as "Plaintiff's Supplemental Response"). Plaintiff essentially argues: (1) Dr. Crum and other Denver County Jail medical staff were aware of the dangers of a Brown Recluse Spider and that Plaintiff was in fact bitten by a Brown Recluse Spider; (2) Exhibit B-1, attached to Defendant's motion is a

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"forgery"; and (3) Plaintiff was not prescribed Benadryl or the antibiotic Keflex and that none of the records reflect that he was put on Keflex. First, Plaintiff has failed to produce any evidence that he was in fact bitten by a Brown Recluse Spider and that Dr. Crum and other Denver County Jail staff deliberately ignored a serious medical condition as a result of the alleged spider bite. As set forth in Dr. Crum's affidavit and established in Plaintiff's medical records, it was never confirmed that Plaintiff was actually bitten by a spider and that, given his clinical presentation, would be highly unlikely that he was bitten by a Brown Recluse Spider. Second, Exhibit B-1 is not a "forgery," and Plaintiff offers no evidence to support this allegation. Moreover, even if Plaintiff's assertion that he received treatment on different dates than reflected on Exhibit B-1, he fails to articulate how that creates a disputed fact with respect to the elements he must establish to support his deliberate indifference claim. Finally, both Defendant's medical records and the affidavit of Dr. Crum clearly reflect that he was given both Benadryl and Keflex. Plaintiff simply argues that he was not prescribed these medications without factual support. Plaintiff makes an additional request that he be allowed to amend his complaint to replace "Nurse Assistance DA" and "Nurse LPN Lisa" to "Medical Staff Jane and John Doe." It is Plaintiff's responsibility to provide information to assist the U.S. Marshall in serving the unserved Defendants. Plaintiff has been given ample opportunity to properly identify and serve these Defendants. Converting the Complaint to read "Jane and John Doe" will not assist Plaintiff in making sure service is effectuated. Defendant respectfully requests these Defendants be dismissed.

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II.

REPLY IN SUPPORT OF UNDISPUTED FACTS Attached to Plaintiff's Supplemental Response is Plaintiff's "Affidavit of Answers in Dispute

of Defendants Summary Judgment" (hereinafter referred to as "Plaintiff's Affidavit"), wherein Plaintiff makes statements purporting to dispute the facts set forth in Defendant's Statement of Undisputed Facts section. Plaintiff's Affidavit contains thirteen paragraphs, as does Defendant's Statement of Undisputed Facts, but Plaintiff's statements do not correspond directly to Defendant's statements; rather, it appears Plaintiff is responding to statements made in Dr. Crum's affidavit. Defendant has attempted below to address the statements made in Plaintiff's Affidavit which can reasonably be construed as a response to each of Defendant's Statements of Undisputed Facts: 1. Defendant stated that Mr. Grace filled out an Inmate Request for Medical Assistance ("Kite") on February 11, 2004 complaining of a spider bite. The Court should deem this an undisputed fact. While Mr. Grace alleges in his affidavit that someone "forged the dates on the top of the page," he offers no foundation or evidentiary support for this allegation, nor does he state which date the Kite was filled out by him. 2. Defendant stated that on February 11, 2004, nurse L. Miller prescribed 25 milligrams of Benadryl and ordered follow up if there was no improvement. The Court should deem this an undisputed fact, as Plaintiff does not refer to the Benadryl treatment in his Affidavit. 3. Defendant stated that Mr. Grace was examined by a nurse on February 12, 2004 and that Dr. Crum ordered 500 milligrams of Keflex and Bacitracin, and ordered Mr. Grace to be re-checked in two days. The Court should deem this statement as an 3

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undisputed fact. In his Affidavit, in paragraph 7, Plaintiff simply questions where the original order is with respect to the order for Keflex. Exhibit B-1 clearly establishes that Dr. Crum issued a verbal order (denoted as "V.O.") for the administration of both Keflex and Bacitracin. 4. Defendant's stated that Mr. Grace was evaluated by a nurse at Denver County Jail on February 14, 2004, who ordered continued monitoring, as reflected on Exhibit B-2. Paragraph 6 of Plaintiff's Affidavit appears to be responsive to Defendant's statement, although Plaintiff refers to February 12, 2004, instead of February 14, 2004. Plaintiff asserts that he was not evaluated on this day, arguing "...the Sheriff did not let anyone out of the building without an appointment, yet there is nowhere that shows I had an appointment that day." Plaintiff fails to point to a specific fact in the record supporting this allegation. Defendant's statement should be deemed undisputed. 5. Defendant stated that Plaintiff was evaluated on February 15, 2004 by a nurse at Denver County Jail, who noted his noes to be swollen, with pressure sinuses and pain. Paragraph 7 of Plaintiff's Affidavit appears to be responsive to Defendant's statement, but simply questions why the hospital was not called "to find out what to do." Defendant's statement should be deemed undisputed. 6. Defendant stated that Mr. Grace was evaluated by Dr. Crum on February 16, 2004, who noted that Mr. Grace's condition had not improved and ordered Mr. Grace to be evaluated by an ENT (ear, nose, and throat) specialist as soon as possible. In paragraph 8 of Plaintiff's Affidavit Plaintiff appears to dispute that it is Dr. Crum's 4

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note on the bottom of Exhibit B-1. It is unclear what Plaintiff is referring to regarding the allegation that "...someone tried to fix this by writing on the bottom of the paper." The writing on the bottom of Exhibit B-1 is Dr. Crum's handwriting, as set forth in Dr. Crum's affidavit, paragraph 8. His note corresponds with the statement that he ordered Mr. Grace to be seen by an ENT specialist. In paragraph 10 of Plaintiff's Affidavit, he confesses Dr. Crum referred Mr. Grace to an ENT. Defendant's statement should be deemed undisputed. 7. Defendant stated that Dr. O'Brien-Falls spoke with Mr. Grace's sister on February 17, 2004 and explained that Mr. Grace was on antibiotics and had an upcoming appointment with an ENT physician. Paragraph 9 of Plaintiff's Affidavit appears to be responsive to Defendant's statement, but does not dispute that the conversation occurred on this date. Defendant's statement should be deemed undisputed. 8. Defendant stated that a nurse at Denver County Jail noted a referral had been sent to the ENT on February 16, 2004 and that there was a seven day turnaround time for appointments with the ENT. In paragraph 10 of Plaintiff's Affidavit, he appears to admit this fact. Defendant's statement should be deemed undisputed. 9. Defendant stated that on February 18, 2004, Dr. O'Brien-Falls requested that Mr. Grace's appointment be expedited. Plaintiff does not refer to this statement in his Affidavit and, therefore, this fact should be deemed undisputed. 10. Defendant stated that Mr. Grace was evaluated at Denver Health Medical Center and was admitted for a small right nasal abscess, which is a localized collection of pus, usually the result of an infection. In paragraph 12 of Plaintiff's Affidavit, Plaintiff 5

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states "no one ever stated that this bite no [sic] the nose was an infection." Plaintiff's statement does not appear to be a dispute over whether he was admitted for a nasal abscess or that abscesses are usually the result of an infection, as Dr. Crum explains in his affidavit, paragraph 12. Defendant's statement should be deemed undisputed. 11. Defendant stated that Mr. Grace was treated at Denver Health with antibiotics and drainage of the abscess. Plaintiff does not discuss this fact in his Affidavit. Defendant's statement should be deemed undisputed. 12. Defendant stated that Mr. Grace was discharged from Denver Health on February 28, 2004 with a final diagnosis of an abscess. Plaintiff does not dispute this fact in his affidavit. Defendant's statement should be deemed undisputed. 13. Defendant stated that Mr. Grace was released from Denver County Jail on or about March 5, 2004. Plaintiff does not dispute this fact in his affidavit. Defendant's statement should be deemed undisputed.

III.

PLAINTIFF HAS FAILED TO IDENTIFY A GENUINE DISPUTE OVER THE FACTS MATERIAL TO BOTH THE OBJECTIVE AND SUBJECTIVE ELEMENTS OF HIS EIGHTH AMENDMENT CLAIMS In order to prevail on an Eighth Amendment "cruel and unusual punishment" claim, Plaintiff

must prove that (1) he suffered objectively serious medical needs and (2) that the prison officials knew of but deliberately disregarded those needs. See Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980); Dulany v. Camahan, 132 F.3d 1234, 1239 (8th Cir. 1997)(citing Coeman v. Rahila, 114 F. 3d 778, 784 (8th Cir. 1997)). In order to raise a material factual dispute in his affidavit, Plaintiff's affidavit must be "based 6

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upon personal knowledge and set forth facts that would be admissible as evidence; conclusory and self-serving affidavits are not sufficient." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (citing Fed. R. Civ. P. 56(e)); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). In addition, only material factual disputes preclude summary judgment; factual disputes about immaterial items are irrelevant. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Defendant submits that Plaintiff's Affidavit is self-serving, conclusory, and does not raise a material issue of disputed fact. Plaintiff offers no evidentiary support to dispute the fact that his condition was not an objectively serious condition. As explained by Dr. Crum in his affidavit, Plaintiff's condition was not life-threatening from which he suffered extensive complications or which required emergent treatment. See Affidavit of Dr. Crum, Exhibit A, ¶ 13, attached to Defendant's Motion. In paragraph 5 of Plaintiff's Supplemental Response, Plaintiff refers to his belief that he was bitten by a Brown Recluse Spider. Plaintiff asserts that Dr. Crum stated Plaintiff's condition could have been caused by a Brown Recluse Spider. Plaintiff appears to be referring to Exhibit C-2, attached to Defendant's Motion, wherein the ENT physician at Denver Health noted there was a question as to whether Mr. Grace had been bitten by a Brown Recluse Spider. This is not Dr. Crum's note. As Dr. Crum states in his affidavit, it was never confirmed that Mr. Grace had actually been bitten by a Brown Recluse Spider and, based on Mr. Grace's clinical presentation, it would have been highly unlikely that he was in fact bitten by this kind of spider. See Dr. Crum's Affidavit, ¶ 13, attached as Exhibit A to Defendant's Motion.

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Plaintiff also argues: "the doctors and Sheriffs at the Denver County Jail are more the [sic] aware that the BROWN RECLUSE SPIDER is very dangerus [sic] and causes harm and pain." Plaintiff's Supplemental Response, ¶ 7. Even if Dr. Crum and the medical staff were aware of the dangers of Brown Recluse Spider bites, Plaintiff fails to point to any evidence in the record supporting the allegation that anyone actually believed he was suffering from a Brown Recluse Spider bite. Plaintiff fails to offer any evidence that Dr. Crum or any health care provider at the Denver County Jail subjectively believed that Mr. Grace suffered from a serious condition. Plaintiff's statement in paragraph 8 of his Supplemental Response that Dr. Crum and the medical staff could have mis-diagnosed Plaintiff's condition is unavailing. Under an Eighth Amendment claim of cruel and unusual punishment, an alleged mis-diagnosis does not translate into deliberate indifference. See Johnson v. Quinones, 145 F.3d 164 (4th Cir. 1988). Plaintiff's allegations that Defendant's Exhibit B-1 is a forgery, and that he was not treated on the dates reflected on this record are equally unavailing in terms of rasing a dispute of material fact. Plaintiff refers to the top portion of Exhibit B-1 and alleges that the date was changed by someone. Plaintiff offers no foundational or factual support for his allegation. It is not clear what date Plaintiff alleges he submitted the Kite, and, more importantly, Plaintiff does not articulate how this would make any difference in establishing that Dr. Crum or the medical staff were deliberately indifferent to a serious medical need. Plaintiff also refers to the different sets of handwriting on Exhibit B-1. Defendant does not dispute the fact that Exhibit B-1 contains the handwriting of multiple health care providers at the Denver County Jail, including Dr. Crum. Plaintiff's allegation that Dr. Crum did not write on this document and that someone "...tried to fix this by writing on the bottom of the paper" is not supported by any fact in the record. It is Dr. Crum's handwriting on the 8

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bottom of Exhibit B-1, as clearly stated in paragraph 8 of Dr. Crum's affidavit. Plaintiff again fails to articulate how the alleged forgery of Exhibit B-1 would raise a material disputed fact as to the elements he must prove to prevail on a claim of deliberate indifference. Overall, the record undisputedly establishes that Plaintiff received prompt and continued medical care from Dr. Crum and the medical staff at the Denver County Jail. With respect to Plaintiff's insinuation that he was not prescribed and/or given Benadryl or Keflex is unsupported by any evidence in the record. The record clearly reflects that Plaintiff was prescribed and given this medication. Plaintiff's question in paragraph 8 of his Affidavit does not even clearly state that he in fact disputes that he received Keflex.

IV. CONCLUSION In sum, Defendant submits that Plaintiff's Supplemental Response does not raise a dispute of material fact that: (1) he suffered from an objectively serious medical need, and (2) that Dr. Crum or other medical staff knew of his serious medical needs and deliberately disregarded those needs. Plaintiff's Supplemental Response is essentially a restatement of the allegations and arguments made in his complaint without any evidentiary support. Plaintiff's self-serving Affidavit does not raise a dispute to any material fact with respect to his claim. Accordingly, Defendant respectfully requests that Summary Judgment be granted in his favor and Plaintiff's claims against him be dismissed. Further, as Plaintiff has failed to serve "Nurse Assistance D.A." or "Nurse LPN Lisa," the claims against these un-served Defendants should be dismissed.

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Respectfully submitted this 21st day of July, 2005.

s/Steven J. Wienczkowski Scott S. Nixon Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON , P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 E-Mail: [email protected] E-Mail: [email protected] (303) 773-3500 ATTORNEYS FOR DEFENDANT PETER CRUM , M.D.

CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 21st day of July, 2005, a true and correct copy of the foregoing was placed in the United States Mail, postage prepaid thereon, addressed to the following: Stephen Jerome Grace Prisoner No. 57349 Limon Correctional Facility 49030 State Highway 71 Limon, Colorado 80826

s/Laura Buckingham Laura Buckingham, on behalf of Pryor Johnson Carney Karr Nixon, P.C.

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