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

Case 1:03-cv-02514-EWN-BNB

Document 87

Filed 07/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: KERRY L. COURNOYER, Plaintiff, v. LARRY E. REID, and DAVID D. HOLT. Defendants. 03-cv-2514-EWN-BNB

DEFENDANTS' REPLY TO "PLAINTIFF'S ANSWER TO SUMMARY JUDGMENT"

DEFENDANTS LARRY E. REID and DAVID D. HOLT, by and through their attorneys, CAIN & HAYTER, LLP, hereby file their Reply to "Plaintiff's Answer to Summary Judgment," (filed June 26, 2006 and entered as document number 86 on the Court's docket), and state as follows: Motion for Summary Judgment as to Defendant Reid Plaintiff's sole allegation against Defendant Reid is that Defendant failed to acknowledge or to otherwise respond to Plaintiff's memorandum dated August 4, 2003 wherein Plaintiff advised Defendant Reid of his intent to sue. The Plaintiff's Amended Complaint does not allege that Mr. Reid in any way caused or participated in the alleged constitutional violations. "An individual cannot be held liable in a 42 U.S.C. § 1983 action unless he caused or participated in an alleged constitutional violation." McKee v. Heggy,

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Case 1:03-cv-02514-EWN-BNB

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703 F.2d 479, 483 (10th Cir. 1983). Additionally, Plaintiff does not allege any "actual injury" as to his claim against Defendant Reid. Defendant Reid is entitled to qualified immunity from a suit for damages. Plaintiff has not alleged, and there is no competent evidence which would support a conclusion that Defendant Reid knew or should have known that any of his actions would violate Plaintiff's constitutional rights. Motion for Summary Judgment as to Defendant Holt In this case, Plaintiff claims that Defendant Holt violated his Eighth Amendment rights by denying him medically necessary footwear when he responded to Plaintiff's Step I Grievance dated September 11, 2002 and Plaintiff's Step II Grievance dated August 26, 2003, and denied him special footwear. In denying the special footwear requested by Plaintiff, Defendant Holt merely deferred to the opinions of the medical doctors who examined Plaintiff, and then conformed to the applicable Colorado Department of Corrections Administrative Regulations (AR 850-05 and 850-06). A reasonable person in Defendant Holt's position would not know that by following the specific recommendations issued by Plaintiff's treating physicians and by adhering to the Colorado Department of Corrections Administrative Regulations that he was in any way violating an inmate's constitutional rights. Defendant Holt is entitled to qualified immunity in this case. Even assuming that Defendant Holt's conduct in denying the special footwear requested by Plaintiff was negligent, such conduct would not establish deliberate

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indifference to the serious medical needs of a prisoner. There are no facts that support the Plaintiff's allegation that Defendant Holt knew his actions exposed the Plaintiff to a substantial risk of serious harm or that he consciously disregarded that risk by failing to take reasonable measures to correct the problem. Affidavit of Plaintiff Kerry Cournoyer Plaintiff's Amended Complaint alleges that Defendants Reid and Holt violated Plaintiff's Eighth Amendment rights by denying him medically necessary footwear between September 11, 2002 and August 26, 2003, while he was an inmate at Colorado State Penitentiary. However, Plaintiff's Affidavit, dated June 13, 2006 and attached to Plaintiff's Answer to Summary Judgment as "Exhibit Attachment # 1," includes irrelevant information and improper allegations which are outside the scope of the claims alleged against Defendants Reid and Holt in Plaintiff's Amended Complaint. Affidavits of Hector Cournoyer and Robin Singer As set forth previously herein, Plaintiff's Amended Complaint alleges that Defendants Reid and Holt violated Plaintiff's Eighth Amendment rights by denying him medically necessary footwear between September 11, 2002 and August 26, 2003, while he was an inmate at Colorado State Penitentiary. However, the time frames discussed the Affidavit of Hector Cournoyer, dated June 21, 2006 and attached to Plaintiff's Answer to Summary Judgment as "Exhibit Attachment # 3," and the Affidavit of Robin Singer, dated June 23, 2006 and attached to Plaintiff's Answer to Summary Judgment as "Exhibit

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Attachment # 2," are also outside the scope of the claims alleged against Defendants Reid and Holt in Plaintiff's Amended Complaint. Conclusion The Courts have recognized that prison administrators necessarily require significant flexibility in executing policies and procedures for the safe and orderly management of prisons. Therefore, absent a statutory or constitutional violation, the Courts generally do not intervene in matters of prison administration, and instead defer to the Department of Corrections in the management of penal institutions. Powell v. Colorado Public Utilities Commission, 956 P.2d 608. In this case, Defendants Holt and Reid were simply performing their duties in maintaining the legitimate penological and security interests of Colorado State Penitentiary (CSP) in prohibiting (for all inmates and not solely Plaintiff) the special footwear requested by Plaintiff. WHEREFORE Defendants pray that the Court grant this Motion for Summary Judgment and Order that Defendants are entitled to qualified immunity; that the Plaintiff's Amended Complaint does not state a cause of action against Defendant Holt and Defendant Reid under 42 U.S.C.A. § 1983; that Plaintiff failed to allege any personal participation as to Defendant Reid and failed to allege any "actual harm" caused by either Defendants' actions; and that Plaintiff's Amended Complaint should be dismissed with prejudice.

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Respectfully submitted this 6th day of July, 2006.

s/ Kristine K. Hayter Kristine K. Hayter, No. 30357 CAIN & HAYTER, LLP 128 South Tejon, Suite 100 Colorado Springs, Colorado 80903 Telephone: (719) 575-0010 Fax: (719) 575-0020 Email: [email protected] Attorneys For Defendants Reid and Holt CERTIFICATE OF SERVICE I hereby certify that on this 6th day of July, 2006, a true and correct copy of the foregoing DEFENDANTS' REPLY TO "PLAINTIFF'S ANSWER TO SUMMARY JUDGMENT" was filed with the Court via ECF and a copy was placed in the United States Mail, postage prepaid and addressed to the following: Mr. Kerry L. Cournoyer, No. 100304 Colorado State Penitentiary PO Box 777 (E-2-16) Cañon City, Colorado 81215-0999

s/ Kristi Holtzberg Kristi Holtzberg, Paralegal

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