Free Response to Objection to Report and Recommendation - District Court of Colorado - Colorado

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

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Filed 06/21/2005

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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, DAVID D. HOLT, DR. WERMERS Defendants. 03-cv-2514-EWN-BNB

DEFENDANT DR. WERMERS' RESPONSE TO PLAINTIFF'S OBJECTIONS TO UNITED STATES MAGISTRATE JUDGE RECOMMENDATIONS

Defendant DR. WERMERS by and through his attorneys, CAIN & HAYTER, LLP, pursuant to F.R.C.P. Rule 7, and 72(b) hereby files this Response to Plaintiff's Objections to United States Magistrates Recommendations and states as follows: Plaintiff's Objections do not present any new arguments for the Court to consider. Plaintiff's allegations, accepted as true for the purpose of this Motion, fail as a matter of law because the complaint fails to state a claim for deliberate indifference against Defendant Dr. Wermers. Plaintiff's complaint fails to state a claim under the Equal Protection Clause against Defendant Dr. Wermers. Defendant Dr. Wermers is entitled to qualified immunity. For purposes of this Fed. R. Civ. P. Rule 12(b)(6) motion, the Plaintiff's factual allegations are considered to be true. Plaintiff does allege that he was seen by Dr.

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Wermers. However, there are no other specific allegations of conduct or in-action by Dr. Wermers that create any type of cause of action against him. There are no allegations that Dr. Wermers failed to treat the Plaintiff. There are no allegations that Dr. Wermers is in control of the living conditions for which Plaintiff is currently in. There are no allegations that Dr. Wermers has any type of control over the security conditions, procedures and measures implemented by the Colorado Department of Corrections. In order to state a claim under § 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). Plaintiff's claim fails to state a claim upon which relief can be granted and should be dismissed with prejudice. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 616-18 (1979); Hill v. Inarra, 954 F.2d 1516 (10th Cir. 1992). Estelle v. Gamble, 429 U.S. 97 (1976) makes it clear that there is no constitutional violation unless the inmate can show that the defendant was deliberately indifferent to a serious medical condition. There must be a determination that the alleged medical condition is a "serious" medical condition. To state a cognizable Eighth Amendment claim, Plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. "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

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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). Plaintiff has failed to allege any facts that would support an inference that Defendant Dr. Wermers knew about and disregarded a "substantial risk of harm" to Plaintiff's health or safety. In addition, there is no factual allegation that would show that any failure to provide care 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). At most, from Plaintiff's Amended Complaint, it appears that Plaintiff feels Dr. Patterson's recommendations were correct and Dr Wermer's recommendations were incorrect. A difference of opinion or disagreement with a diagnosis states no claim for relief. The Eight Amendment merely requires that CDOC provide an inmate with access to medical personnel capable of evaluating the need for treatment. A disagreement between the patient and the doctor about the evaluation is not evidence of deliberate indifference by the doctor, nor by the prison administrator. Difference of opinion between a prisoner and medical staff do not constitute deliberate indifference to a serious medical need. Johnson v. Stephan, 6 F3rd 691,692 (10th Cir1993); Olson v. Stotts, 9 F.3d 1475 Page 3 of 5

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(10th Cir. 1993). Finally, the Plaintiff has failed to allege any personal involvement or actions by Defendant Dr. Wermers that has prohibited the Plaintiff from obtaining the requested tennis shoes. Defendant Dr. Wermers is not an administrator or guard at the CDOC facility where the Plaintiff is incarcerated. WHEREFORE, Defendant Dr. Wermers' respectfully requests that the Recommendation of United States Magistrate Judge concerning Defendant's Motion to Dismiss, entered on June 3, 2005 be adopted and Defendant's Motion to Dismiss be granted. Respectfully submitted this 21st day of June, 2005. Duly signed original is on file at the office of CAIN & HAYTER, LLP

/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 Defendant Wermers

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June, 2005, a true and correct copy of the foregoing DEFENDANT DR. WERMERS' RESPONSE TO PLAINTIFF'S OBJECTIONS TO UNITED STATES MAGISTRATES RECOMMENDATIONS 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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