Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARY, SANDRA, AARON, JASON and CHARLES Defendants. ______________________________________________________________________________ PROPOSED FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATES AND APPEARANCES The Final Pre-Trial Conference was held in this matter on May 1, 2006 at 8:30 a.m. with Magistrate Judge Michael J. Watanabe. Plaintiff participated by telephone, and in attendance in person were Steven J. Wienczkowski, Esq. for Defendants CMI, Kim Dempewolf, Marye Deming and Jason Coolidge. Billy-George Hertzke, Esq. also appeared in person on behalf of Defendant Monique Martel. The undersigned attempted to confer with Plaintiff regarding the Proposed Pretrial Order and had arranged for a telephone conference for 1:30 p.m. on April 25, 2006 through Plaintiff's case manager. Plaintiff's case manager was unable to make Plaintiff available for the scheduled

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telephone conference. Accordingly, the undersigned has prepared this Proposed Pretrial Order without Plaintiff's input. 2. JURISDICTION Jurisdiction is conferred on the Court by 28 U.S.C. §§1331, 1332, 1343(a)(3) and 1367. 3. CLAIMS AND DEFENSES On August 22, 2001, Plaintiff entered Centennial Community Transition Center ("CCTC") as a direct sentence serving a four year community corrections sentence for menacing. Plaintiff alleges that, while he was a resident at CCTC, he was forced to take Antabuse, a medication that is administered to deter the use of alcohol, and that the Antabuse caused him physical harm. Plaintiff alleges that the administration of Antabuse treatment constituted cruel and unusual punishment under the 8th Amendment (Plaintiff's Claim Four). Plaintiff has also asserted a "state claim of negligence" (Claim Five); "state claim of intentional infliction of emotional distress" (Claim Six); and "state claim of medical malpractice" (Claim Seven).1 Plaintiff argues that the prescribed Antabuse caused him to suffer from severe headaches, sharp pains in his chest and abdominal region, dizziness, dehydration, fatigue, anxiety, severe sweating, diarrhea, and mood changes.

Defendants CMI, Dempewolf, Deming, and Coolidge deny that they were deliberately indifferent to any serious medical needs of Plaintiff. These Defendants deny that Plaintiff was forced, threatened or coerced in any manner to take the prescribed medication Antabuse while

Pursuant to the Court's June 8, 2005 Order, Plaintiff's Claims One, Two, and Three remain dismissed as set forth in Judge Weinshienk's April 26, 2004 Order. -2-

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housed at CCTC. These Defendants further contend that Plaintiff was appropriately evaluated and cleared for treatment with Antabuse and further, that Plaintiff consented to and accepted treatment with Antabuse without objection or comment. In total, Plaintiff received only six doses of Antabuse, and there is no evidence to support Plaintiff's claim that the Antabuse he received caused him serious medical needs, that any of these Defendants were aware of those serious medical needs, and that the Defendants deliberately ignored those needs in violation of 42 U.S.C. §1983.

Defendants CMI, Dempewolf, Deming, and Coolidge further contend that Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. §1997(e)(a). With respect to Plaintiff's negligence claim (Claim Five), these Defendants deny they breached a duty to Plaintiff that caused harm to Plaintiff, and deny that their conduct amounted to intentional infliction of emotional distress (Claim Six) under Colorado law. Further, with respect to Plaintiff's state claim of medical malpractice (Claim Seven), to the extent this claim is read to be directed at Defendants CMI, Dempewolf, Deming, and Coolidge, it should be dismissed on its face as none of these Defendants are medical professionals. Moreover, Plaintiff's claim of medical malpractice must fail as Plaintiff has failed to provide a Certificate of Review pursuant to C.R.S. §13-20-602.

In addition to the defenses set forth above, Defendants CMI, Dempewolf, Deming and Coolidge assert the following defenses: Plaintiff's claims are barred by the equitable doctrines of consent, waiver, estoppel and/or unclean hands; Plaintiff has failed to mitigate his alleged injuries and damages, if any; the conduct of Defendants was lawful, justified, privileged, done in good faith -3-

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and subject to qualified immunity; Plaintiff's claims for damages are diminished, limited and/or barred under provisions of Colorado law, including, but not limited to, C.R.S. §13-21-102.5 and/or §13-21-111.6; Plaintiff's claims for damages are barred or diminished by Plaintiff's own fault and/or assumption of the risk, pursuant to C.R.S. §13-21-111 and/or §13-21-111.7; and Plaintiff's claims are frivolous and groundless, entitling Defendants to an award of attorney's fees and costs pursuant to 42 U.S.C. §1988.

4. STIPULATIONS None. 5. PENDING MOTIONS On March 1, 2006, Defendants CMI, Dempewolf, Deming, and Coolidge filed a Motion for Summary Judgment on the grounds that there is no genuine dispute of material fact that these Defendants were not deliberately indifferent to any serious medical needs of Plaintiff under 42 U.S.C. §1983, and that Plaintiff cannot prevail on any of his remaining state law claims as a matter of law. Plaintiff has failed to file a response to the Motion for Summary Judgment, and on March 23, 2006, the Court denied Plaintiff's "Motion for Extension of Time to File Response/Reply as to Motion for Summary Judgment." On March 31, 2006, Plaintiff filed his "Objection to Magistrate Judge Order Denying Plaintiff's Motion for Extension of Time to File Response to CMI Defendnats [sic] Motion for Summary Judgment," to which these Defendants filed a Response on April 12, 2006. As Plaintiff has elected not to file any response, the Court may deem the factual and legal arguments in the Motion for Summary Judgment to be unopposed, and admitted for the purpose of

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considering whether or not Defendants' motion should be granted pursuant to the provisions of Fed. R. Civ. P. 56.

On March 20, 2006, Defendant Martel filed a Motion to Amend Scheduling Order and for a Scheduling/Status Conference.

6. WITNESSES PLAINTIFF: A. Plaintiff lists the following non-expert witnesses: 1. Plaintiff will call the following witnesses who will be present at trial: [NONE PROVIDED BY PLAINTIFF.] 2. Plaintiff may call the following witnesses at trial if the need arises: [NONE PROVIDED BY PLAINTIFF.]

3.

Plaintiff does not anticipate presenting any testimony by means of a deposition.

DEFENDANTS CMI, DEMPEWOLF, DEMING, AND COOLIDGE: A. Defendants list the following non-expert witnesses: 1. Defendants will call the following witnesses who will be present at trial: Plaintiff Oloyea D. Wallin. 2. Defendants may call the following witnesses at trial if the need arises: Kim Dempewolf

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Marye Deming Jason Coolidge Mike Koob Monique M. Martel Javier C. Waksman, M.D. Selwyn M. Spray, M.D. Any treating health care provider 3. Defendants do not anticipate presenting any testimony by means of a deposition.

B.

Defendants list the following expert witnesses: 1. Defendants anticipate that the following expert witnesses may be present at trial: Javier C. Waksman, M.D.

DEFENDANT MARTEL: A. Defendant Martel lists the following non-expert witnesses: 1. Defendant Martel will call the following witnesses who will be present at trial: [NONE PROVIDED BY DEFENDANT MARTEL.] 2. Defendant Martel may call the following witnesses at trial if the need arises: [NONE PROVIDED BY DEFENDANT MARTEL.]

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7. EXHIBITS a. The parties list the following exhibits: (1) Plaintiff: [NONE PROVIDED BY PLAINTIFF.] (2) Defendants CMI, Kim Dempewolf, Jason Coolidge and Marye Deming: Defendants' Preliminary Exhibit List is attached hereto. (3) Defendant Martel: [NONE PROVIDED BY DEFENDANT MARTEL.]

b.

Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.

8. DISCOVERY Discovery with respect to Defendants' CMI, Dempewolf, Deming, and Coolidge has been completed. Defendant Martel filed a Motion to Amend/Correct/Modify Scheduling Order on April 20, 2006 to allow for discovery as Defendant Martel recently filed her Answer to the Amended Complaint on March 22, 2006.

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9. SPECIAL ISSUES 1. Defendants CMI, Dempewolf, Deming, and Coolidge's pending Motion for Summary Judgment;

2.

Defendant Martel's Motion to Amend/Correct/Modify Scheduling Order;

3.

Plaintiff's failure to comply with Magistrate Judge Watanabe's December 6, 2005 Order [Docket No. 187]. Plaintiff's failure to comply with the Court's Order has resulted in Defendants from being unable to obtain any of Plaintiff's medical records. 10. SETTLEMENT

a.

Counsel for the parties and any pro se Plaintiff will meet in person and by telephone

on May 8, 2006, to discuss in good faith the settlement of this case. b. The participants in the settlement conference will include counsel, party

representatives, and pro se Plaintiff. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party (do) (do not) intend to hold future

settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there is (a good possibility of settlement) (some possibility of settlement) (little possibility of settlement) -8-

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(no possibility of settlement). f. g. No other date has been set for further settlement conference. Counsel for the parties and any pro se party considered ADR in accordance with

D.C.COLO.L.Civ.R. 16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will not be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings.

13. TRIAL AND ESTIMATED TRIAL TIME: FURTHER TRIAL PREPARATION PROCEEDINGS

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DATED this ______ day of May, 2006. BY THE COURT:

__________________________________________ United States Magistrate Judge

APPROVED:

/s/ Steven J. Wienczkowski_________ Steven J. Wienczkowski Scott S. Nixon PRYOR JOHNSON CARNEY KARR NIXON 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 303.773.3500 ATTORNEYS FOR DEFENDANTS CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE

____________________________________ Billy-George Hertzke SENTER, GOLDFARB & RICE 1700 Broadway, Suite 1700 Denver, Colorado 80290 303.320.0509 ATTORNEY FOR DEFENDANT MONIQUE MARTEL

_________________________________ Oloyea D. Wallin Reg. No. 111389 Arkansas Valley Correctional Facility P O Box 1000 Crowley, Colorado 81034 PRO SE PLAINTIFF

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