Free Motion for Summary Judgment - District Court of Colorado - Colorado

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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' MOTION FOR SUMMARY JUDGMENT

DEFENDANTS LARRY E. REID and DAVID D. HOLT, by and through their attorneys, CAIN & HAYTER, LLP, hereby file their Motion For Summary Judgment pursuant to Fed. R. Civ. P. 56, and request that Plaintiff's claim be dismissed with prejudice. I. STANDARD OF REVIEW In reviewing a motion for summary judgment, the court reviews the record in the light most favorable to the non-moving party. Sealock v. State of Colorado, 218 F.3d 1205, 1209, 10th Cir. 1994 (citation omitted). The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact

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and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986). Summary judgment procedure is properly regarded, not as a disfavored procedural shortcut, but, rather, as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Id., 477 U.S. at 327. In response to a motion for summary judgment, the burden shifts to the party opposing the motion to produce factual evidence, not mere allegations or argument, to show a triable issue of fact exists. Hall v. Bellmon, 935 F.2d 1106,111 (10th Cir. 1991). II. PLAINTIFF'S CLAIMS Pursuant to this Court's Order of September 28, 2005 (entered as document number 51 on the Court's docket), Plaintiff only remaining claim is his claim of deliberate indifference to his serious medical needs by Defendants Reid and Holt, in violation of Plaintiff's Eighth Amendment rights under the United States Constitution, 42 U.S.C. § 1983. III. DEFENDANTS' AFFIRMATIVE DEFENSE OF QUALIFIED IMMUNITY Defendants assert the affirmative defense of qualified immunity. Once the

affirmative defense of qualified immunity has been raised, the burden then shifts to the Plaintiff to prove facts that the Defendants' actions violated a constitutional or statutory right. IV. FACTS

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The significant facts pertaining to Plaintiff's one remaining claim as alleged in the Plaintiff's Amended Complaint are as follows: On August 4, 2003, the Plainitff allegedly notified Defendants Reid and Holt in writing that he was experiencing substantial chronic pain in his left ankle and that the pain significantly affected his daily activities, via memorandum dated August 4, 2003. Plaintiff alleges that Defendants Reid and Holt did not respond to his memorandum. While incarcerated at Denver Reception / Diagnostic Center (DRDC), Plaintiff was issued an order for high-top tennis shoes to be sent in due to recurring left ankle pain arising from a prior injury. The order for the high-top tennis shoes specifically stated "may have high top tennis shoes sent in if o.k. with security..." [emphasis added]. Thereafter, Plaintiff was relocated to Colorado State Penitentiary (CSP), where the high-top tennis shoes ordered while Plaintiff was at DRDC were prohibited, due to security concerns of that facility. Additionally, upon examination of Plaintiff's left ankle on June 17, 1999 (after Plaintiff's transfer from DRDC), no indication for special footwear was found. Plaintiff's ankle x-rays remained unchanged from 1999 through 2003, and Plaintiff was seen by several different medical providers, none of whom documented any remarkable findings to justify a medical necessity for a special shoe. In response to Plaintiff's informal attempt to resolve this issue, Plaintiff was evaluated by Orville Neufeld, D.O., on August 19, 2002. In his response to Plaintiff's informal resolution attempt, dated September 4, 2002, Dr. Neufeld advised Plaintiff that his need was for a bigger shoe and that there was no medical necessity for a "medical shoe"

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per se. On July 23, 2003, Plaintiff was evaluated by Joseph Wermers, M.D., who ordered "shoes as allowed per facility security regulations. No medical need for special footwear found" [emphasis added]. Finally, on September 24, 2003, Plaintiff underwent an orthopedic consultation with Jacob Patterson, M.D., at which time Dr. Patterson recommended accommodative shoe wear, arch supports, or tennis shoes to provide relief with weight bearing. It should be noted that Plaintiff's grievances with respect to this issue were filed in September 2002 and August 2003, prior to Dr. Patterson's order for accommodative footwear. Plaintiff's claims against Defendant Holt arise from Defendant Holt's responses to Plaintiff's Step II Grievances, dated September 13, 2002 and August 29, 2003, are prior to Dr. Patterson's order for accommodative footwear. Plaintiff's specific argument is whether his medical need for lace-less or velcro-type tennis shoes, outweighed the legitimate penological and security interests of Colorado State Penitentiary (CSP) in prohibiting such footwear (for all inmates and not solely Plaintiff), and whether such prohibition against tennis shoes by Defendants Holt and Reid constituted cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. Attached as Exhibits A and B to this motion, are the Affidavit of Dennis Burbank, the administrative officer for Colorado State Penitentiary and Centennial Correctional Facility, and the Affidavit of Robert Harlan, the Canteen Program Manager for the Colorado Department of Corrections. These Affidavits are based on the personal knowledge of Mr.

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Burbank and Mr. Harlan, they set forth facts that would be admissible at the time of trial, and they establish that Mr. Burbank and Mr. Harlan are competent to testify to such facts. The Affidavits attached hereto as Exhibits A and B meet all of the requirements of Fed.R.Civ.P. 56 (e), and they are proper evidence for this Court's consideration in ruling upon this motion. The Affidavit of Dennis Burbank, attached hereto as Exhibit A, states in pertinent part: ... 3. All offenders at CSP are classified Administrative Segregation and are managed under the highest security of any DOC facility. Upon arrival, they start at Quality of Life Level one. The entire Quality of Life Level Program consists of six levels and is a cognitive-based behavior modification program. The program is behavior and program compliance driven. The offender must work his way through the first three incentive levels at CSP. Once he progresses to level four, he is transferred to CCF and becomes part of the PRO (Progressive Reintegration Orientation) Unit. At that point, the offender's classification is changed to Close, even though it is still considered part of High Security Offender Management. At CCF, the offenders receive their meals, recreation, and programing in groups no larger than eight (8) offenders. Once at level six, they are ready to progress back to a general population facility. Due to behavior issues and/or a failure to comply with the program, an offender may be regressed back to level one to start the program all over again. Plaintiff Cournoyer received shoes upon his arrival at CSP from Limon Correctional Facility and he has received shoe exchanges on the following dates: August 5, 2002; December 8, 2002; June 19, 2003; and March 16, 2004. These were all a size 15 Wide. These were all documented exchanges. These were not a tennis shoe, but were a canvas and rubber "deck" type shoe. The only shoe allowed at CSP is the canvas and rubber "deck" type shoe.

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6.

The only shoe allowed at CCF Ad Seg is the canvas and rubber "deck" type shoe. Once an offender progresses to the Pro Unit, they are issued the black work boot or the deck shoe. At that point, they can also order tennis shoes from the canteen. Until November 4, 2005, at which time Plaintiff Cournoyer was progressed to level 4 Pro Unit at CCF, he could not be in possession of any type of shoe except the deck shoe. Once at CCF, he was issued a black work-type shoe. Prior to November 4, 2005, while at CSP, Plaintiff Cournoyer was not allowed to order any type of clothing (to include shoes) from the canteen. On March 10, 2006, Plaintiff Cournoyer ordered a pair of size 15D tennis shoes from the canteen. On May 4, 2006, I personally conducted a physical inventory of Plaintiff Kerry Cournoyer's property, at which time I counted the following items which are applicable to the subject lawsuit: a. b. c. One (1) pair of black state issue shoes; Eight (8) pairs of socks: Two (2) pairs of state issue socks and six (6) pairs of socks ordered from the canteen; One (1) pair of tennis shoes ordered from the canteen.

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While I was conducting the inventory of Plaintiff Cournoyer's property, Plaintiff put on the black state issue shoes, claiming the shoes do not fit; however I was unable to tell whether the black state issue shoes properly fit Plaintiff Cournoyer. Plaintiff Cournoyer stated to me that the black state issue shoes are too big around the top, too long, and too narrow. From my conversation with Plaintiff Cournoyer on May 4, 2006, it appears that the main issue with the state issue shoes is that the shoes are "too cheap." During my conversation with Plaintiff Cournoyer on May 4, 2006, Plaintiff stated to me that the state issue socks - even the largest tube socks - are "too small."

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15.

The state issue tube socks that Plaintiff complained are too small are sized for "one size fits all." There are other offenders with large feet who are incarcerated within the Department of Corrections who have no problems with the "one size fits all" state issue tube socks. Plaintiff Cournoyer has purchased socks from the canteen that he admits do fit; however, Plaintiff claims that the canteen socks "wear out too fast." Pursuant to Administrative Regulation (AR) 850-05, clothing items and footwear prescribed for medical reasons must be authorized, in writing, and purchased by medical services. Additionally, pursuant to AR 850-06, the Department of Corrections may limit, change, or disallow personal property items which are authorized to prevent compromise of security, good order and discipline of the facilities.

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The Affidavit of Robert Harlan, attached hereto as Exhibit B, states that the Plaintiff has ordered the following canteen items since 2001: a. b. c. d. e. f. g. h. i. 1/16/2001, 1 pair Riddell size 15 tennis shoes; 2/13/2001, 1 pair arch supports, size 13/14; 3/28/2001, 1 pair New Balance size 15 tennis shoes; 11/13/2001, 1 pair New Balance size 15D tennis shoes; 3/5/2002, 3 pair D tube socks and 3 pair crew socks; 4/10/2002, 4 pair crew socks; 6/13/2002, 4 pair crew socks; 7/9/2002, 1 pair arch supports, size 12/13; 2/11/2003, 1 pair arch supports, size 12/13;

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j.

3/7/2006, 3 pair crew socks and 1 pair New Balance size 15D tennis shoes; and

k.

4/11/2006, 3 pair crew socks.

The Plaintiff in this case is an incarcerated inmate, serving two sentences of life without parole for convictions of two murders, along with various other sentences stemming from robbery and robbery conspiracy convictions. Plaintiff was not allowed to wear tennis shoes when he was incarcerated at Colorado State Penitentiary (CSP), which is a Level 5 security facility, responsible for the management of high risk administrative segregation offenders. Complete information regarding Plaintiff's convictions and incarceration is

available at the Department of Corrections website, http://www.doc.state.co.us, under the "inmate locator" tab. 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 footwear requested by Plaintiff. It should again be noted that Plaintiff was evaluated by Joseph Wermers, M.D., on July 23, 2003, at which time Dr. Wermers found no medical need for special footwear and issued an order for "shoes as allowed per facility security regulations." Attached as Exhibit C, is Dr. Wermers' treatment note dated July 23, 2003. V. ARGUMENT A. Qualified Immunity Defendants Reid and Holt are entitled to qualified immunity. In civil rights actions seeking damages from governmental officials, "those officials may raise the affirmative defense Page 8 of 21

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of qualified immunity, which protects `all but the plainly incompetent or those who knowingly violate the law.' " Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), citing Gross v. Pirtle, 245 F.3d 1151,1155 (10th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). A public official acting in his individual capacity is presumed to be immune from liability. Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990). "For executive officials in general, however, our cases make plain that qualified immunity represents the norm." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). In order to rebut the presumption of immunity, the plaintiff must prove that the defendant "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or [that] he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury...." Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (emphasis supplied by the court). State officials are shielded "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights which they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). "The purpose of qualified immunity is to allow public officers to carry out their duties as they think right, rather than acting out of fear for their own personal fortunes." Greiner v. City of Champlin, 27 F.3d 1346, 1351 (8 th Cir. 1994). An official performing discretionary functions will generally be immune from liability unless a reasonable person in his position would have known that his actions violated clearly established law. Qualified immunity protects "all but the plainly incompetent or Page 9 of 21

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those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The doctrine applies where reasonable officials in the same situation would have taken the same action, or where such officers could disagree on the appropriate course of action to follow. Id. at 336. Only if clearly established law removes all doubt as to how to proceed is immunity lost. "[I]f there is a legitimate question as to whether the more particularized constitutional right exists under the facts of the case, it cannot be said that the prison official's action violated clearly established law.' Brown v. Frey, 889 F. 2d 159, 165 (8 th Cir. 1989)(emphasis added). A mere allegation of malice is insufficient to "subject a defendant in a proceeding of this sort `to the costs of trial or to the burdens of broad reaching discovery.' " Hidahl v. Gilpin County Dep't of Social Services, 938 F.2d 1150, 1154 (10th Cir. 1991). [B]are allegations of malice should not suffice to subject Government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 at 817 and 818. A plaintiff must do more than assert bare allegations of a constitutional violation. The complaint must allege specific and nonconclusory facts which are sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law. The complaint must include "all the factual allegations necessary to sustain a conclusion that defendant Page 10 of 21

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violated clearly established law." Sawyer v. County of Creek, 908 F.2d 663 (10th Cir. 1990). The issue of qualified immunity should be considered at the earliest possible stage of litigation. Gorra v. Hanson, 880 F.2d 95,97 (8th Cir. 1989). Unless it is decided long before trial, much of the benefit of the rule will be lost. Greiner v. City of Champlin, 27 F.3d 1346, 1351-52 (8th Cir. 1994). "Not only does qualified immunity protect officials from liability, but it also should spare them the disruption and expense of trial in situations where they have acted reasonably." Id., 27 F.3d at 1351. "[T]he burdens of a trial and personal liability may not be imposed on a government official for the exercise of discretionary authority unless his conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992). 1. Qualified Immunity as to 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. 2. Qualified Immunity as to Defendant Holt

Defendant Holt is entitled to qualified immunity from a suit for damages. Plaintiff has not alleged, and there is no evidence which would support a conclusion that Defendant Holt knew or should have known that his activities would violate Plaintiff's constitutional Page 11 of 21

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rights. 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. If a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition. Saucier v. Katz, 533 U.S. 194, 201. Attached hereto as Exhibit D and Exhibit E are Defendant Holt's responses to Plaintiff's Step II Grievances dated September 13, 2002 and August 29, 2003. It is apparent from a review of Defendant Holt's responses that Defendant's acts and reasons for his acts were reasonable. Defendant Holt had a reasonable and legitimate law enforcement purpose for his actions. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct...If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Saucier v. Katz, 533 U.S. 194 at 205. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.

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See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed 2d 271 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). Saucier v. Katz, 533 U.S. 194 at 202. 3. Plaintiff's Burden of Proof

The burden of proof has shifted to the Plaintiff and in order to survive this motion, the Plaintiff must now convince the court with legitimate evidence that the law at the time of the alleged incident was clearly established. Where the affirmative defense of qualified immunity is properly raised, it is the plaintiff's burden to convince the court that the law is clearly established. A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue. Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984). If the Plaintiff cannot meet his burden of proof, then summary judgment should be granted to the Defendants. The claim of qualified immunity presents a question of law; "the court cannot avoid the question by framing it as a factual issue." Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir.(Colo. 1991), citing Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d at 646.

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B.

The Facts Do Not Support a Claim under 42 U.S.C.A. § 1983 as to Defendant Holt 42 U.S.C. § 1983 does not create any substantive rights. Chapman v. Houston

Welfare Rights Organization, 441 U.S. 600, 616-18 (1979); Hill v. Inarra, 954 F.2d 1516 (10th Cir. 1992). In order to state a claim under 42 U.S.C. § 1983, the Complaint must allege facts which, if assumed to be true, would demonstrate that the Defendant deprived the Plaintiff of a right secured by federal law while they acted under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). 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. In response to Plaintiff's 2002 Step II Grievance, Defendant Holt consulted with the Plaintiff's treating physician and he reviewed the response to Plaintiff's Step I Grievance by Orville Neufeld, Ph.D., D.O., dated August 21, 2002. Defendant Holt then timely advised Plaintiff that he concurred with Dr. Neufeld's response to Plaintiff's Step I Grievance, wherein Dr. Neufeld advised Plaintiff that his need was for a bigger shoe and that there was no medical necessity for a "medical shoe" per se. In response to Plaintiff's 2003 Step II Grievance, Defendant Holt reviewed Plaintiff's Step II Grievance, the response to Plaintiff's Step I Grievance, and Plaintiff's medical records and he advised Plaintiff that medical staff at Colorado State Penitentiary would need to see any recommendations issued by an orthopedic specialist before making a decision with respect to the special footwear requested by Plaintiff. Page 14 of 21

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The leading case involving an allegation of inadequate medical care or treatment is Estelle v. Gamble, 429 U.S. 97 (1976). In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). In Estelle, the Court held that "deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain,'.....prescribed by the Eight Amendment." Id. at 104. To state a cognizable Eighth Amendment claim, Plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Only such indifference that offends evolving standards of decency in violation of the Eighth Amendment states a cognizable claim. "Conduct which, at most, is medical malpractice...does not represent cruel and unusual punishment." Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996). This requires evidence showing indifference, facts showing that the indifference is the result of deliberate action rather than negligence, and facts showing that the inmate's need is serious: The Eighth Amendment's deliberate indifference standard under Estelle has two components: an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind. Handy v. Price, 996 F.2d 1064, 1067 (10th Cir. 1993).

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In the present case, there is no factual allegation that would show that any failure to provide medical supplies was the result of deliberate indifference, rather than mere negligence (if it can even be considered as such). "Deliberate indifference" means more than inadvertent failure to provide medical care. Daniels v. Gilbreath, 668 F.2d 477, 482 (10th Cir. 1982). It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Claims, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Whitley v. Albers, 475 U.S. 312, 319 at 319 (1986). The conduct must be deliberate in the sense of "criminal recklessness". Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Plaintiff must show that the Defendant knew of and deliberately disregarded a substantial risk of serious harm to the Plaintiff's health or safety. Id. at 837. Mere negligent conduct (which, by definition, is unreasonable conduct) is insufficient to create a cause of action under 42 U.S.C.A. § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Bryson v. City of Edmond, 905 F.2d 1386 (10th Cir. 1990). Deliberate indifference is a "stringent standard of fault" which requires more than a showing of "simple or even heightened negligence". Giron v.Corrections Corp. of America, 191 F.3d 1281, 1285-86 (10th Cir. 1999).

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Therefore, even assuming that Defendant Holt's conduct in denying the special footwear requested by Plaintiff was negligent, such conduct would not establish deliberate indifference to the serious medical needs of a prisoner. 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), applicable portions of which are attached hereto as Exhibit F and G. (The complete Administrative Regulations are available at the

Department of Corrections website, http://www.doc.state.co.us, under the "operations" tab.) As set forth in CDOC Administrative Regulation (AR) 850-05, Clothing items and/or footwear prescribed for medical reasons must be authorized in writing, and purchased by medical services. Upon transfer to another facility/center, offenders must receive authorization by that medical department. (See Exhibit F, at page 4, Section IV(B)(5) ). In this case, the Plaintiff's order for high-top tennis shoes was issued while he was incarcerated at DRDC, and the order specifically stated "may have high top tennis shoes In this case, the Plaintiff's order for high-top tennis shoes was issued while he was incarcerated at DRDC, and the order specifically stated "may have high top tennis shoes sent in if o.k. with security..." [emphasis added]. Thereafter, Plaintiff was relocated to Colorado State Penitentiary (CSP), where the high-top tennis shoes ordered while Plaintiff was at DRDC were prohibited, due to security concerns of that facility.

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CDOC Administrative Regulation (AR) 850-06 provides for allowable offender personal property, as well as specifies and limits the personal property offenders may retain in their possession. Pursuant to AR 850-06, DOC may limit, change, or disallow items which are currently authorized to prevent compromise of security, good order and discipline of the facilities. (See Exhibit G at page 1, Section I). 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. 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. Allegations of mere negligence are not cognizable in any § 1983 claim, regardless of the theory or clause of the Constitution used to justify the complaint. Daniels v. Williams, 474 U.S. 327, 334-36 (1986); Bryson v. City of Edmond, 905 F.2d 1386, 1390-92 (10th Cir. 1990). C. Plaintiff Failed to Allege any "Actual Injury" as to Defendants Holt and Reid Plaintiff does not allege any "actual injury" as to his claim against Defendants Holt and Reid. "An individual cannot be held liable in a 42 U.S.C. § 1983 action unless he Page 18 of 21

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caused or participated in an alleged constitutional violation." McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). D. Plaintiff Failed to Allege any Personal Participation as to Defendant Reid Plaintiff does not allege any personal participation by Defendant Reid in denying the special footwear requested by Plaintiff. In order for a supervisor to be liable under 42 U.S.C. § 1983, there must exist a causal connection or an affirmative link "between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). See also Rizzo v. Goode, 423 U.S. 362, 371 (1976). Without a showing of direct responsibility for the alleged violation, liability will not be imposed on a supervisory official. Id. 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. VI. CONCLUSION Plaintiff's Amended Complaint, filed on or about January 7, 2005 and entered as document number 24 on the Court's docket, should be dismissed with prejudice because both Defendants are entitled to qualified immunity; Plaintiff has failed to allege any "actual injury" caused by Defendant Holt's actions, nor can Plaintiff prove a cause of action against Page 19 of 21

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Defendant Holt under 42 U.S.C.A. § 1983; and Plaintiff has failed to allege any personal participation as to Defendant Reid or any "actual injury" caused by Defendant Reid's actions and likewise cannot prove a cause of action against Defendant Reid under 42 U.S.C. § 1983. 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. Respectfully submitted this 26th day of May, 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 Email: [email protected] Attorneys For Defendants Reid and Holt

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of May, 2006, a true and correct copy of the foregoing 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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