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

Case 1:04-cv-01049-EWN-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-OES MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ________________________________________________________________________ DEFENDANTS' REPLY TO RESPONSE TO MOTION FOR SUMMARY JUDGMENT ________________________________________________________________________ The individual defendants, through the undersigned counsel, reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment (Doc 125) as follows: 1. The defendants' motion for summary judgment (Doc. 110) should be

granted because Garraway has failed to offer admissible evidence sufficient to create a question of fact that would require a trial. At most, he has offered conclusory denials and factually unsupported allegations, which are insufficient to defeat summary judgment. "Conclusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment." Elsken v. Network Multi-Family Sec. Corp., 49 F.3d 1470, 1476 (10 th Cir. 1995); Fitzgerald v. Corrections Corp. of Amer., 403 F.3d 1134, 1143 (10 th Cir. 2005) (party opposing summary judgment must come forward with factual support to create dispute of fact). Specifically, Garraway throughout his response

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simply denies the defendants' factual assertions without offering any factual basis for doing so. Similarly, by way of example, Garraway throughout his response and complaint states that the defendants "falsified" documents yet he fails to show based on admissible evidence that the documents are inaccurate. 2. Importantly as well, Garraway does not set forth in his complaint facts

demonstrating that he has personal knowledge of the allegations he is making against the defendants. To oppose a motion for summary judgment, the evidence relied upon must be admissible. Fed. R. Civ. P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."). See also Defendants' motion, pp. 6-7. 3. It should be noted that Garraway's brief in opposition to the defendants'

motion for summary judgment is not submitted under penalty of perjury and therefore merely constitutes a pleading under Fed. R. Civ. P. 56 and not evidence. While Garraway cites to exhibits attached to his complaint, most are not admissible because they are not made under penalty of perjury. Exhibits 1, 2, 3, 13 (Interrogatories for Officer C. Spann), 16, 18, 21, 22, 32, 33, 34, 35, 36, 38, and 45 are plaintiff's own unsworn statements and thus not proper under Fed. R. Civ. P. 56. 4. Even though Garraway is proceeding pro se, he remains obligated to follow

all applicable rules and requirements imposed by the rules of civil procedure. Murray v.

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City of Tahlequah, Okla., 312 F.3d 1196, 1199 n.3 (10 th Cir. 2002) (pro se status does not relieve litigant of obligation to comply with procedural rules). Accordingly, any evidence which he offers in opposition to the defendants' evidence must be of the type to be admissible at trial. 5. Garraway states that because several of the defendants' declarations state

that their declarations are made in support of a motion to dismiss, they should be disregarded. (Gunja, Maroni, Ortega, Rios, Valle). Plaintiff cites no authority to support his argument. Notwithstanding the fact that the declarations contain this statement, the factual information contained therein remains admissible and conforms to the requirements of Fed. R. Civ. P. 56. To the extent that Garraway failed to oppose those declarations with admissible evidence, they are unrebutted and must be credited. 6. With respect to Garraway's Eighth Amendment claim arising from his being

placed in ambulatory restraints, he has failed to come forward with admissible evidence that the defendants (particularly those not involved with the alleged assault on February 12, 2003) acted or failed to act with the requisite culpable mental state. Even if the defendants knew that Garraway was in restraints, he has failed to show that each knew for what duration, that it was for an improper purpose, or that he experienced discomfort from the application. Because Garraway cannot show that each defendant knew that his placement in restraints was for a malicious or sadistic purpose, he cannot sustain his burden. Plaintiff must be able to demonstrate based on his personal knowledge that each

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defendant was not only aware of the severity of the deprivation as to duration and nature, but also acted with willfulness or reckless disregard toward his plight. See Defendants' motion, pp. 21-25. Because plaintiff lacks such proof as to each defendant, his claim arising from his placement in restraints must fail. 7. For these reasons and those contained in their brief (Doc. 110), the

defendants are entitled to summary judgment. DATED this 25 th day of October, 2005. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 25, 2005, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: none, and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Mitchell Garraway Reg. No. 38096-066 USP - Florence P.O. Box 7000 Florence, CO 81226 Benjamin J. Brieschke Chris Synsvoll Attorney-Advisors Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, Colorado 81226

s/ Michael A. Miller Michael A. Miller Legal Assistant United States Attorney's Office 1225 Seventeenth, Suite 700 Denver, Colorado 80202 PH: (303) 454-0100 FX: (303) 454-0408

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