Free Brief in Support of Motion - District Court of Colorado - Colorado

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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. _____________________________________________________________________________ DEFENDANTS' MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, Marye Deming and Jason Coolidge, by and through counsel, and submits the following Memorandum Brief in Support of Motion for Summary Judgment: I. PRELIMINARY STATEMENT Plaintiff filed his Amended Prisoner Complaint on or about January 5, 2005, attached as Exhibit A. With respect to these Defendants, Plaintiff alleges that, while he was a resident at Centennial Community Transition Center (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.

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Plaintiff alleges that the administration of the Antabuse treatment constituted cruel and unusual punishment under the Eighth Amendment (Plaintiff's Claim Four). Plaintiff has also asserted a "State Claim of Negligence" (Claim Five); "State Claim of Intentional Infliction of Emotion Distress" (Claim Six); and "State Claim of Medical Malpractice" (Claim Seven).1 As set forth below, summary judgment is appropriate as there is no genuine dispute of material fact that Defendants were not deliberately indifferent to any serious medical needs of Plaintiff under 42 U.S.C. § 1983. Defendants further submit that with the dismissal of Plaintiff's Eighth Amendment claim, the Court should not exercise jurisdiction over the remaining state law claims. Should the Court elect to exercise supplemental jurisdiction, the Court should dismiss Plaintiff's state law claims as Plaintiff cannot prevail on any of his remaining claims as a matter of law. II. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. On August 22,2001, Plaintiff entered CCTC as a direct sentence serving a four year

community corrections sentence for menacing. See Dempewolf Affidavit, Exhibit C, ¶ 4. 2. CCTC is operated by Corrections Management Incorporated (CMI), located in

Boulder Colorado. See Dempewolf Affidavit, Exhibit C, ¶ 2. 3. Antabuse is drug that is used as a deterrent to the consumption of alcohol. When

alcohol is consumed while taking Antabuse, uncomfortable symptoms are produced. See Report of Javier Waksman, M.D.; Exhibit E, bottom of page 2-3; Dempewolf Affidavit, ¶ 5.

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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4.

Antabuse is given to residents at CCTC who have a current violent criminal history

involving substance abuse and are at an increased level of risk. See Dempewolf Affidavit, Exhibit C, ¶5. 5. Mr. Wallin was medically cleared to take Antabuse after he was evaluated at Martel

Medical. See Antabuse Evaluation, Exhibit B-5, Dempewolf Affidavit, Exhibit C, ¶ 7, Report of Javier Waksman, M.D., Exhibit E, p. 2. 6. From October 30, 2001 through November 6, 2001, while Mr. Wallin was a resident

at CCTC, he received a total of six doses of Antabuse. See Dempewolf Affidavit, Exhibit C, ¶ 8, Medication Monitoring Record, Exhibit B-1. 7. Mr. Wallin was terminated from CCTC on November 8, 2001. See Dempewolf

Affidavit, Exhibit C, ¶ 8. 8. At the time Mr. Wallin was a resident at CCTC, there was a writ procedure in place

in which residents were expected to submit when they felt aggrieved. See Dempewolf Affidavit, Exhibit C, ¶ 10. 9. While Mr. Wallin was a resident at CCTC he submitted several writs, but none of

these related to the Antabuse therapy he received. See Dempewolf Affidavit, Exhibit C, ¶ 11, Writs, Exhibit B-8. III. SUMMARY JUDGMENT STANDARDS The Federal Rules of Civil Procedure permit summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (summary judgment is appropriate if movant demonstrates absence of proof on an essential element of the nonmovant's claim); Punahele v. United Air Lines, Inc., 743 F. Supp. 758, 760 (D. Colo. 1990). The party moving for summary judgment has the initial burden of establishing the absence of a genuine fact issue. This showing may be accomplished by "pointing out . . . that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325. To avoid summary judgment, the burden then shifts to the non-moving party to present evidence persuasive enough for a reasonable juror to find in his favor. Punahele, 743 F. Supp at 760; Klein Hotel Partners v. Aircoa Equity Interest, 725 F. Supp. 479, 481 (D. Colo. 1989). It is not necessary for the moving party to disprove the non-moving party's case in order to obtain summary judgment. Windon Third Oil & Gas v. Federal Deposit Ins., 805 F.2d 342, 345-46 (10th Cir. 1986) (impliedly overruled on other grounds). If, as in the case here, the non-moving party cannot prove an essential element of his claim, summary judgment is an appropriate remedy. Celotex Corp., 477 U.S. at 322. IV. PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH THE PRISONER LITIGATION REFORM ACT A. PLRA Exhaustion Requirements.

The Prison Litigation Reform Act provides, in relevant part [n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. -4-

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42 U.S.C. § 1997e(a). The Tenth Circuit has repeatedly held that the exhaustion of administrative remedies is mandatory and that suits filed before the exhaustion of administrative remedies must be dismissed. See Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir. 2000); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir 1997)(overruled on other grounds). Exhaustion of administrative remedies is required even if the grievance process does not permit monetary damages, as long as there is some authority to take some responsive action. See Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (2001). The Court of Appeals for the Tenth Circuit clarified the obligation of an inmate to plead exhaustion of administrative remedies, holding that the PLRA imposes a positive pleading requirement on the prisoner. See Steele v. Federal Bureau of Prisons et. al., 355 F. 3d 1204 (10th Cir. 2003). In order to avoid dismissal, a prisoner must, "...provide a comprehensible statement of his claim and also either attach copies of administrative proceedings or describe their disposition with specificity." Id. at 1211. As set forth in Steele, "...the final administrative decision is central to a prisoner's claim, so that the prisoner is required to plead exhaustion. If he does not, he has failed to state a claim and the complaint is vulnerable to dismissal." Id. at 1212. The Court in Steele reasoned that the obligation of a prisoner to properly plead exhaustion of administrative remedies is not an unfair burden on a prisoner. As the court noted: The prisoner outlines his own grievance in the prison administrative system and frames his allegations in federal court. Consequently, it is the prisoner who can best assert the relationship between his administrative grievance and court filling. A showing of exhaustion does not rely solely on the maintenance of an efficient filing and retrieval system. In fact, it is more dependent upon insight into the administrative claim and its relationship with the federal suit. -5-

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Id. at 1210. In Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), the Court of Appeals for the Tenth Circuit reaffirmed the pleading requirement announced in Steele, stating: "In the absence of particularized averments concerning exhaustion showing the nature of the administrative proceeding and its outcome, the action must be dismissed under § 1997e." Ross, 365 F.3d, 1181, 1184. Therefore, pursuant to the positive pleading requirements under the PLRA, Plaintiff was required to, at a minimum, detail with specificity all of the applicable administrative procedures he had exhausted prior to filing the Complaint. B. Grievance Procedure at CCTC

Under section F, "administrative relief" in Plaintiff's Complaint, Plaintiff answered "no" in response to the question of whether there was a formal grievance procedure available to him and, at the same time, answered "yes" to the question of whether he had exhausted the available administrative remedies. See Exhibit A, p. 9. Plaintiff is incorrect in both respects, as CCTC has a formal grievance procedure that Plaintiff failed to utilize. Attached as Exhibit C, is the affidavit of Kim Dempewolf, who was Director of CCTC while Mr. Wallin was a resident there. As set forth Ms. Dempewolf's affidavit, during Plaintiff's incarceration at CCTC, and currently, CCTC had a "writ" procedure relating to when a resident has a complaint to which they request a response. See Exhibit C, ¶10. CCTC's writ procedure is attached as Exhibit B-6. Plaintiff acknowledged receipt of the rules and regulations manual and that received clarification concerning any rules and regulations which he did not fully understand. Exhibit C, ¶ 9 and Exhibit B-8. As set forth in the Exhibit C, ¶ 10 and Exhibit B-6, p.21, there -6-

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are three types of writs: Writ of Grievance (complaint); Writ of Innocence; and a "Writ of Mitigation (explanation). The "Writ of Grievance" applies to "any type of complaint which [the resident] wishes to receive a response to." Residents may request a hearing on any writ, or a response only, which are reviewed on a weekly basis. Exhibit B-6, p. 21. Plaintiff utilized the writ procedure on several occasions for matters unrelated to the Antabuse treatment he received. For example on September 11, 2001, Plaintiff filed two writs related to alleged unauthorized absences on September 4 and September 11, 2001. See Exhibit B-8. Plaintiff again took advantage of the writ procedure on October 11, 2001, related to his alleged failure to turn in a proper budget sheet, Exhibit B-8, and on October 4, 2001, when he filed a "Writ of Explanation" on October 4, 2001 for allegedly being out of location and in an unauthorized location. Exhibit B-8. While Plaintiff filed writs related to other matters, Plaintiff did not file a single writ advising CCTC administration the Antabuse treatment he was receiving was causing any adverse symptoms and should be terminated. Plaintiff's statement in his Amended Complaint that there is no formal administrative grievance procedure is simply inaccurate. As set forth above, Plaintiff utilized the administrative procedure relating to other matters on numerous occasions during his relatively short stay at CCTC. Plaintiff also states in his Amended Complaint that he exhausted the available administrative remedies, "[t]hrough myself and attorney Bob Hicks through formal contact and court procedures." Exhibit A, p. 9. While Plaintiff and his attorney might have utilized formal court procedures relating to his criminal case, it is undisputed he did not follow CCTC's grievance procedure related to the Antabuse treatment he received while a resident of CCTC. -7-

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As Plaintiff failed to meet the pleading requirements set forth in Steele, and failed to exhaust the administrative remedies available to him prior to filing this lawsuit, his Complaint must be dismissed. V. PLAINTIFF'S EIGHTH AMENDMENT CLAIM SHOULD BE DISMISSED A. Deliberate Indifference Standards

Convicted prisoners have an Eighth Amendment right to adequate medical care and recovery under § 1983 is available for deliberate indifference to their serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The State has a constitutional obligation to make available to inmates a level of medical care that is reasonably designed to meet the routine and emergency health care needs of inmates. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). Because only the unnecessary and wanton infliction of pain implicates the Eighth Amendment, an Eighth Amendment claim for deliberate indifference to serious medical needs consists of both a subjective component requiring that the offending officials acted with a sufficiently culpable state of mind and an objective component that the pain or deprivation be sufficiently serious. Handy v. Price, 996 F.2d 1064, 1067 (10th Cir. 1983). See also Estelle, 429 U.S. at 104-06. In order to assert an Eighth Amendment claim that prison officials were deliberately indifferent to his medical needs, a plaintiff must demonstrate that (1) he suffered objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs. See Ramos, 639 F.2d at 575; Dulany v. Camahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (citing Coeman v. Rahila, 114 F.3d 778, 784 (8th Cir. 1997)). The objective component is met if the -8-

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deprivation is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second prong, a subjective inquiry, requires the inmate to demonstrate that the prison officials acted with deliberate indifference toward his needs. Id. See also Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). The subjective component is met if a prison official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (citation omitted). An official acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights," Id. at 1496. The Supreme Court has explained the test for deliberate indifference: We reject petitioner's invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837. See also Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997). ("To be guilty of deliberate indifference, the defendant must know he is creating a substantial risk of bodily harm,") (internal quotation marks and citation omitted); Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (An official acts with subjective deliberate indifference when he "had subjective knowledge of a substantial risk of serious harm . . . but responded with deliberate indifference to that risk").

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Simple negligence or inadvertent failure to provide adequate medical care does not constitute the unnecessary and wanton infliction of pain and therefore does not give rise to a constitutional violation. Wilson, 501 U.S. at 297; Estelle, 429 U.S. at 97; Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. at 1992); Ramos, 639 F.2d at 575. See also Perkins v. Kansas Department of Corrections, 165 F.3d 803, 811 (10th Cir. 1999) ("A negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.") (citing Estelle, 429 U.S. at 105-06); Green, 108 F.3d at 1303 (a "complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment"); Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) (mere negligence insufficient to sustain claim of deliberate indifference). B. Defendants Were Not Deliberately Indifferent to Plaintiff's Medical Needs

Plaintiff's Claim Four alleges that as a result of the Antabuse therapy he experienced "...headaches, sharp pains in his chest and adominal region, dizziness, dihydration [sic], fatiqueness [sic], anxiety and severe sweating along with diaharrea [sic] and mood changes." See Exhibit A, p. 8. It is undisputed that Plaintiff did not suffer from a serious medical condition as a result of taking Antabuse, and it is also undisputed that Defendants did not deliberately disregard any serious medical condition while he was a resident at CCTC. 1. Plaintiff's Condition Was Not an Objectively Serious Condition.

As noted above, in order to prevail on an Eighth Amendment claim of deliberate indifference, Plaintiff must demonstrate that he suffered from an objectively serious condition. While Plaintiff purports to have suffered from an objectively serious condition, there is simply no evidence in his -10-

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file that he suffered from a serious medical condition during the six day period he received Antabuse.2 Attached as Exhibit D is Defendants Fed. R. Civ. P. 26(a)(2) Endorsement of Javier C. Waksman, M.D., filed on January 20, 2006. Dr. Waksman is Board-Certified in Internal Medicine and Toxicology. Dr. Waksman's background, training and experience are more fully set forth in his Curriculum Vitae which is attached to his report (Exhibit E). Dr. Waksman has reviewed the relevant records from Martel Medical and the Medication Monitoring form (Exhibit B-1). As set forth in Dr. Waksman's report, the Antabuse Mr. Wallin received while at CCTC was within the recommended dose. See page 3 of Exhibit E. In evaluating Mr. Wallin's complaints, Dr. Waksman concludes that Mr. Wallin's complaints of headache, fatigue, and dizziness possibly could have been associated with the Antabuse he received, but that these minor symptoms would have subsided after the treatment was terminated. See Exhibit E, p. 5. Dr. Waksman further concludes that Mr. Wallin's complaints of mood changes are not likely associated with the amount of Antabuse Mr. Wallin received and that Mr. Wallin's complaints of severe sweating and chest and abdominal pain would only be associated with Antabuse if Mr. Wallin ingested alcohol while taking the Antabuse. See Exhibit E, p. 5.

As the Court is aware, Plaintiff has refused to provide notarized medical releases for Arapahoe County Detention Facility or Arkansas Valley Correction Facility, despite the Court's Order of December 6, 2005 (Docket Number 187) that Plaintiff provide notarized releases within ten (10) days of the Court's Order. Should the Plaintiff be allowed to belatedly provide his medical releases, Defendants reserve the right to supplement this motion. -11-

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In sum, at most, it is only possible that Mr. Wallin suffered from the common side effect of headache, dizziness and fatigue during the brief six days he was being treated with Antabuse, even though no such symptoms were reported to anyone at CCTC. Because Plaintiff cannot demonstrate that he suffered from a serious condition while he was a resident at CCTC, or even after he was transferred out of CCTC, his deliberate indifference claim must fail. 2. Defendants Did Not Deliberately Disregard Objectively Serious Medical Needs.

Under the second prong of a deliberate indifference claim, Plaintiff must demonstrated that Defendants actually knew of but deliberately disregarded Plaintiff's medical needs. See Ramos, supra, at 587. Dulany, supra at 1239 (citing Coeman v. Rahila, 114 F.3d 778, 784 (8th Cir. 1997). Even assuming, arguendo, that Plaintiff suffered from an objectively serious medical condition, it is undisputed that Defendants did not deliberately ignore a serious medical need. As noted above, CCTC has a writ procedure when a resident wishes to resolve an issue within the facility. Plaintiff did not file any writs with respect to an alleged adverse reaction to Antabuse. See Exhibit C, ¶ 11. The absence of any documentation that Mr. Wallin made any complaints about the Antabuse treatment during the six days he received the treatment, rebuts any allegation that any of the Defendants acted with the requisite degree of culpability, i.e., deliberate indifference, under the subjective prong of the analysis. There is simply no evidence that any Defendant "knew of" and "disregarded" an "excessive risk" to Plaintiff's "health or safety" See Farmer, supra. The record clearly establishes that at no point in time did Plaintiff complain about an adverse reaction to Antabuse. As set forth in Defendant's Expert Endorsements, attached hereto as Exhibit

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D, and the accompanying report from Dr. Javier Waksman, Exhibit E, the type of reactions Plaintiff alleges occurred, such as mood changes, severe sweating, and chest and abdominal pain, to a reasonable degree of medical probability, would not have occurred (absent consumption of alcohol) given the relatively small amount of Antabuse Plaintiff received. As it is undisputed that Plaintiff cannot establish that any Defendant's deliberately ignored a serious condition, summary judgment is warranted. VI. THE COURT SHOULD NOT EXERCISE SUPPLEMENTAL JURISDICTION PLAINTIFF'S REMAINING STATE LAW CLAIMS

Should the Court dismiss Plaintiff's Eighth Amendment Claim, the Court would be deprived of subject matter jurisdiction over the remaining state law claims against these Defendants. "[W]hen a district court dismisses the federal claims, leaving only supplemental state claims, the most common response has been to dismiss the state claim or claims without prejudice." United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002) (citation omitted). See also 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction."). Where, as here, the parties have spent virtually no time on the state law claims prior to dismissal of the federal claim, the "district court should normally dismiss supplemental state law claims after all federal claims are dismissed . . . before trial." Botefuhr, 309 F.3d at 1273. Where, as in this case, there is no compelling reason for the district court to retain jurisdiction over the state law claims after dismissing the Section 1983 claims, they should be dismissed.

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VII.

PLAINTIFF'S STATE LAW CLAIMS SHOULD BE DISMISSED ON THEIR MERITS

Should the Court decline to dismiss Plaintiff's state law claims, Plaintiff's claims must nevertheless fail as a matter of law. A. Plaintiff's Negligence Claim (Claim Five).

In order for Plaintiff to establish a claim based on negligence, he must establish: (1) the existence of a legal duty to the Plaintiff; (2) that Defendant breached that duty; and (3) that the breach of that duty caused the harm resulting in damages to the Plaintiff. Keller v. Koca, 111 P.3d 445, 447 (Colo. 2005) (citing Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002); Greenberg v. Perkins, 845 P.2d 530, 533 (Colo. 1993)). Plaintiff offers no specifics with respect to what duties Defendants violated that caused him injury. Plaintiff simply states "...CMI, Dempewolf, Ryan, Mary, Sandra, Aaron, Jason, and Charles all acted with negligence in there [sic] job duties causing the plaintiff physical and emotional suffering. Plaintiff made aware these defendants [sic] of the state and constitutional violations and they all failed to remedy the situation." Exhibit A, p. 8. Plaintiff's conclusory allegations fail to allege what specific duty and what specific acts from each defendant constituted negligence, Plaintiff simply repeats the same allegations relating to his deliberate indifference claim, rendering the negligence claim duplicative. As set forth above, there is simply no evidence that Plaintiff made any of these Defendants aware of his purported adverse reaction to Antabuse. As no reasonable juror could find that Defendants breached a duty to Plaintiff that caused his alleged injuries, Plaintiff's Claim Five should be dismissed. -14-

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B.

Plaintiff's Intentional Infliction of Emotional Distress Claim (Claim Six).

Colorado courts have repeatedly held that a claim for intentional infliction of emotional distress, otherwise known as "outrageous conduct," may be summarily dismissed when no reasonable person could conclude that the defendant's conduct was outrageous, as defined by Colorado law. "The trial court must determine, as a threshold matter of law, whether the defendant's alleged conduct was sufficiently heinous to create a submissible claim." Bauer v. Southwest Denver Mental Health Center, 701 P.2d 114, 1118 (Colo. App.. 1985). See also, State Bank of Wiley v. States, 723 P.2d 159, 161 (Colo. App.. 1986); Churchey v. Adolph Coors Co., 725 P.2d 38 (Colo. App.1986). The tort of intentional infliction of emotional distress was adopted by the Colorado Supreme Court in Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), when the court adopted the provisions of the Restatement (Second) of Torts, § 46 (1965). The court cited with approval the following language: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds for decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally the case is one in which a recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Rugg v. McCarty, supra, 476 P.2d at 756. See also, CJI Civ. 3d 23:2.

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The comments to the Restatement make clear that the level of wrongful conduct sufficient to support a claim for intentional infliction of emotional distress is extremely high. Comment (d) to § 46 states: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Restatement (Second) of Torts, § 46, comment (d), at 73. Both the Colorado and U.S. District courts in Colorado have emphasized the egregious, and intentional nature of the conduct required to set forth a prima facie claim for outrageous conduct. As observed by Judge Kane in Price v. Federal Express Corporation, 660 F.Supp. 1388 (D.Colo. 1987): In Brezinski v. F.W. Woolworth Company, 626 F.Supp. 240 (D.Colo. 1986), I dismissed a claim based upon alleged extreme and outrageous conduct where the plaintiff failed to allege a pattern of conduct calculated to cause emotional distress or a sufficiently egregious isolated incident. Id. at 1395 (emphasis in original). Judge Kane went on to observe that: Colorado law on this issue is well-stated in Pringle, I Colorado Law Annotated 41, Section 4 at 58: In order to recover on a claim of intentional infliction of emotional distress [by extreme and outrageous conduct], the plaintiff must establish by a preponderance of the evidence that the defendant engaged in outrageous conduct for the specific purpose and intent of causing severe emotional distress. Id. at 1396. See also Bauer v. Southwest Denver Mental Health Center, supra; Rawson v. Sears Roebuck & Company, 530 F.Supp. 776 (D.Colo. 1982).

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Plaintiff's allegations do not rise to the level of defeating a motion for summary judgment. As his "supporting facts" for his Intentional Infliction of Emotional Distress Claim, Plaintiff simply states that all of the defendants "...caused the plaintiff intentional physical and emotional pain and suffering by the acts and denial to act." Exhibit A, p. 8. Plaintiff can produce no evidence that any of the Defendants engaged in the alleged conduct "with the specific purpose and intent of causing severe emotional distress." Price, supra at 1396. As Plaintiff has failed to produce any evidence supporting the high standard required in Colorado for outrageous conduct claims, summary judgment in favor of Defendants is warranted. C. Plaintiff's State Claim of Medical Malpractice (Claim Seven).

Plaintiff's claim of medical malpractice is directed against defendant "Jane Doe." The Court has allowed the substitution of Defendant Monique Martel (the individual who evaluated and cleared Mr. Wallin for Antabuse treatment) for "Jane Doe." Defendant Martel filed a Motion to Dismiss on January 11, 2006. To the extent Plaintiff's Claim Seven is directed at Defendants Dempewolf, CMI, Deming, or 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. Colorado law requires a claimant to file certification that a professional who has expertise in the area of the alleged negligent conduct and familiarity with the applicable standards of care and practice has reviewed the known facts, records, documents, and other materials, and has determined that the claims do not "lack substantial justification within the meaning of Section 13-17-102(4)." -17-

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See C.R.S. §§ 13-20-602 (3)(a)(II) and (3)(c). This requirement is mandatory and applies to all actions against "a licensed professional". C.R.S. § 13-20-602(1)(a). Plaintiff's failure to file a certificate of review in accordance with section 13-20-602 must result in the dismissal of Claim Seven of his Complaint. C.R.S. § 13-20-602(4). This section applies with equal measure to both attorneys and pro se litigants. Yadon v. Southward, 64 P.3d 909 (Colo. App. 2000). VIII. CONCLUSION Plaintiff's claim of deliberate indifference against Defendants must fail as a matter of law as it is undisputed that Plaintiff did not suffer from a serious medical need that Defendants deliberately ignored. There is simply no evidence to support Plaintiff's claim that the six doses of 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. To the contrary, as supported by the report of Dr. Waksman (Exhibit E), it is unlikely Plaintiff would have suffered from any serious reaction to the Antabuse therapy absent the consumption of alcohol, which is the very conduct the drug is aimed to deter. Accordingly, Plaintiff's Claim Four should be dismissed. If Plaintiff's Fourth Claim is dismissed, Defendants submit that the Court should not exercise supplemental jurisdiction over the remaining state law claims. However, even if the Court elects to exercise jurisdiction, Plaintiff cannot produce any evidence satisfying the elements of each of his state law claims and, accordingly, they should be dismissed as well.

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Respectfully submitted this 1st day of March, 2006.

s/ Steven J. Wienczkowski Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON , P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 E-Mail: [email protected] ATTORNEYS FOR CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE

CERTIFICATE OF SERVICE I hereby certify that on the 1st day of March, 2006, a true and correct copy of the foregoing was filed via electronic filing, as well as placed in the U.S. Mail, postage prepaid thereon, addressed to: Oloyea D. Wallin Reg. #111389 ARKANSAS VALLEY CORRECTIONAL FACILITY P.O. Box 1000 Crowley, Colorado 81034 Billy-George Hertzke, Esq. SENTER , GOLDFARB & RICE , LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290

s/Laura Buckingham Laura Buckingham, on behalf of Pryor Johnson Carney Karr Nixon, P.C.

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