Free Reply in Support of Motion - District Court of Arizona - Arizona

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ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY By: MICHAEL J. MASSEE State Bar No. 015901 JOSEPH VIGIL State Bar No. 018677 Deputy County Attorneys MCAO Firm No. 00032000

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CIVIL DIVISION Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 Telephone (602) 506-8541 Attorneys for Defendant Deputy Jeremy Goad IN THE UNITED STATES DISTRICT COURT

10 FOR THE DISTRICT OF ARIZONA 11 12 13 14 15 16 17 18 19 20 21 22 Defendant Deputy Jeremy Goad hereby replies in support of his motion for summary judgment. Plaintiff's opposition brief does not dispute any of the facts presented in Defendant's Statement of Facts. Furthermore, the documents submitted by Plaintiff with his opposition brief support Defendant's contention
Document 31 1 Filed 09/18/2006 Page 1 of 5

Ralph Slusher, Plaintiff, v. J. T. Goals, Defendant.

NO. CV 04-0293-PHX-EHC (MEA)

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 2:04-cv-00293-EHC-MEA

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that any injuries Plaintiff may have sustained in this incident were not objectively serious as to require immediate medical attention in order not to violate Plaintiff's constitutional right to be free from infliction of cruel and unusual punishment. Plaintiff claims that he should have been seen immediately after the lowspeed accident occurred and should not have been returned to the Madison jail to obtain medical care there. "However, a mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference." Casey v. Lewis, 834 F. Supp. 1477, 1543 (D. Ariz. 1993) (citing May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980) and Shapley v. Nevada Bd. Of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985)). A delay in treatment does not constitute a violation of the eighth amendment unless the delay caused substantial harm. Id. (citing Wood v. Housewright, 900 F.2d 1332, 1335 (9TH Cir. 1990)) (emphasis added). Here, there is no evidence that Defendant caused any delay in Plaintiff's obtaining appropriate medical care. After the low-speed impact with the cement pole, Defendant returned one of the other inmates who had been a passenger in the same van as Plaintiff to his unit in the Madison Street jail and non-party Deputy Burkhalter returned Plaintiff and five other inmate to their respective houses in Madison. Exhibit C to Plaintiff's opposition brief. Importantly, Plaintiff has admitted that any delay he experienced in obtaining medical care once

returned to his housing unit in Madison was not caused by Plaintiff. SOF ¶ 9. Case 2:04-cv-00293-EHC-MEA Document 31 2 Filed 09/18/2006 Page 2 of 5

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Further, Plaintiff has not proved that he was harmed in any way by the delay in treatment. It is uncontroverted that immediately after this incident

Plaintiff was not bleeding, that X-rays taken later showed no traumatic injuries, and that his treatment consisted solely of pain medications. Moreover, other than being seen twice by medical personnel while incarcerated at the Madison Street jail, Plaintiff has not sought any further medical care, either from County Correctional Health Services during the three months he remained incarcerated at Madison, or later from the Department of Corrections. In other words, any injuries associated with this incident were soft-tissue injuries that resolved on their own with conservative pain management. The record fails to provide any support for the allegation that Plaintiff suffered substantial harm due to a delay in medical care, even assuming that this Defendant were responsible for such a delay. Because the issue of whether there was a sufficiently serious injury is an objective question to be decided by the court, and because Plaintiff has failed to carry his burden on this element, Defendant is entitled to summary judgment in his favor. Moreover, Plaintiff has failed to produce any evidence at all that would support a finding that this Defendant was subjectively aware of Plaintiff's need for immediate medical care but deliberately and wantonly refused to arrange such care for him. In fact, the documents Plaintiff attaches to his opposition

brief disclose that the group of inmates in the van were laughing about suing the Case 2:04-cv-00293-EHC-MEA Document 31 3 Filed 09/18/2006 Page 3 of 5

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state to get "free money." Whether or not Plaintiff himself joined in the laughter and spoke about suing the state, no reasonable finder of fact could find Defendant to have been wanton or deliberately indifferent in taking the inmates into the jail instead of calling for emergency medical responders in this circumstance. In all likelihood, the only assistance paramedics would have Their assistance

provided to Plaintiff was aspirin or other pain medication. clearly was not needed.

Moreover, Plaintiff has placed no facts in the record that he even communicated to Defendant his perceived need for immediate medical care or that Defendant somehow otherwise knew that immediate medical care was needed in this case. Without any such foundational facts in evidence, no

reasonable finder of fact could infer that Defendant acted with deliberate indifference to Plaintiff's serious medical needs. Plaintiff has therefore failed to carry his burden on this second element as well. Because neither prong of the test for deliberate indifference is met on the facts now in the record, Defendant is entitled to summary judgment in his favor. RESPECTFULLY SUBMITTED this 18th day of September 2006. ANDREW P. THOMAS MARICOPA COUNTY ATTORNEY

BY:

s/ Michael J. Massee MICHAEL J. MASSEE JOSEPH VIGIL Deputy County Attorneys Attorneys for Defendant Deputy Goad
Filed 09/18/2006 Page 4 of 5

Case 2:04-cv-00293-EHC-MEA

Document 31 4

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ORIGINAL of the foregoing E-FILED and copies MAILED this 18th day of September 2006, Honorable Earl H. Carroll United States District Judge Sandra Day O'Connor U.S. Courthouse, Suite 521 401 West Washington Street, SPC 48 Phoenix, Arizona 85003 Honorable Mark E. Aspey United States Magistrate Judge 123 North San Francisco Street, Suite 200 Flagstaff, Arizona 86001 Ralph Slusher #184486 ASPC-Douglas-MSU Mohave South Unit PO Box 5002 Douglas, Arizona 85608-5002 Plaintiff Pro Per

s/ Terri Giacalone 13 14 15 16 17 18 19 20 21 22
Case 2:04-cv-00293-EHC-MEA Document 31 5 Filed 09/18/2006 Page 5 of 5
CJ 05-480

S:\COUNSEL\Civil\Matters\CJ\2005\Slusher CJ05-480\Pleadings\reply.doc