Free Response to Motion - District Court of Arizona - Arizona

1 Russell A. Kolsrud, #004578 Brad M. Thies, #021354 2 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 3 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 4 (480) 505-0015 5 Attorneys for Defendant ValueOptions, Inc. 6 IN THE UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 SHANNON MICHAEL CLARK, 9 Plaintiff, 10 v. 11 VALUEOPTIONS, INC., 12 Defendant. 13 14 Defendant ValueOptions, Inc. ("ValueOptions"), through undersigned counsel and RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Case No. CIV 03-1344-PHX-EHC (MS)

15 pursuant to Rule 56, Fed.R.Civ.P., hereby responds to plaintiff's motion for summary 16 judgment. Plaintiff's motion should be denied as it relies entirely on inadmissible and 17 irrelevant evidence and advances only unsupported conclusory allegations insufficient when 18 viewed against the standards required under applicable law. This response is supported by 19 the pleadings on file, the following memorandum of points and authorities and the 20 objections to plaintiff's statement of facts and controverting statement of facts. 21 22 23 24 By: 25 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. DATED this 3 rd day of October, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

Case 2:03-cv-01344-EHC-HCE

Document 147

Filed 10/03/2005

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MEMORANDUM OF POINTS AND AUTHORITIES Factual Statement Plaintiff's statement of facts ("PSOF") fails to advance any admissible or relevant

4 evidence showing a custom or policy of ValueOptions. (PSOF 1-57). Plaintiff fails to 5 advance any admissible or relevant evidence showing the required deliberate indifference 6 of a ValueOptions' policy or custom that resulted in the alleged constitutional violation. 7 (PSOF 1-57). PSOF relies entirely upon statements of fact lacking proper authentication, 8 containing inadmissible hearsay, improper opinions and irrelevant facts. Plaintiff can 9 produce no admissible evidence imparting liability on ValueOptions. 10 Count V of the First Amended Complaint ("FAC") alleges that ValueOptions "was

11 deliberately indifferent of plaintiff's serious medical needs having prior knowledge of 12 actions and inactions described in Counts I and II and failing to stop said actions from 13 continuing to occur". (ValueOptions' Controverting Statement of Facts ("CSOF") 3.) 14 Plaintiff makes no allegation of a ValueOptions' policy or custom that caused his injury. 15 (CSOF 4.) There is no claim of deliberate conduct of ValueOptions intentionally causing 16 a depravation of federal rights. (CSOF 5.) Plaintiff also makes no claim that a policy or 17 custom of ValueOptions was a moving force behind the alleged injury. (CSOF 6.) Finally, 18 ValueOptions employees Karen Marshall and Thomas Crumbley, M.D., provided the 19 necessary assessment of Plaintiff's condition and made the appropriate decision that 20 Plaintiff was not eligible for SMI services on August 30, 2002. (CSOF 7). 21 II. 22 Standard Summary judgment shall only be rendered when the pleadings, depositions, answers

23 to interrogatories, and admissions on file, together with affidavits, if any, show that there 24 is no genuine issue of material fact and the moving party is entitled to judgment as a matter 25 of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 26 moving party bears the burden of informing the District Court of the basis for its belief that 27 there is an absence of a genuine issue for trial, and of identifying those portions of the 28 record that demonstrate such an absence. Id. "Supporting and opposing affidavits shall be 2 Case 2:03-cv-01344-EHC-HCE Document 147 Filed 10/03/2005 Page 2 of 7

1 made on personal knowledge, shall set forth such facts as would be admissible in evidence, 2 and shall show affirmatively that the affiant is competent to testify to the matters stated 3 therein." Fed.R.Civ.P. 56(e). 4 Mere assertions of fact unsupported by probative evidence will not support a

5 summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In other words, 6 conclusory statements, speculation and unsubstantiated assertions will not suffice to support 7 a motion for summary judgment. Douglas v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 8 (5 th Cir. 1996) (en banc). Even a pro se party may not support a motion for summary 9 judgment by presenting unsupported statements or "sweeping allegations". Shumway v. 10 United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997). A party cannot support summary 11 judgment by relying on the allegations of his pleadings, or conclusory statements, or on 12 mere assertions that opposing affidavits are not credible since summary judgment cannot 13 be supported on the mere basis of conjecture or surmise. Gottlieb v. County of Orange, 84 14 F.3d 511, 518 (2d Cir. 1996). 15 III. 16 Argument Plaintiff's complaint asserts only a § 1983 claim against ValueOptions who was

17 allegedly "deliberately indifferent of plaintiff's serious medical needs by having prior 18 knowledge of actions and inactions described in counts I and II and failing to stop said 19 actions from continuing to occur." (CSOF 3). The plaintiff in a § 1983 claim bears the 20 burden of establishing municipal liability. Clanton v. City of Kingston, 44 F.Supp.2d 177, 21 183 (N.D.NY 1999). As set forth in detail in ValueOptions' objections to plaintiff's 22 statement of facts, this is a burden plaintiff fails to meet. 23 In order to establish ValueOptions' liability under § 1983, plaintiff must show

24 municipal liability. That is, governing bodies can only be sued directly under § 1983 where 25 the action that is alleged to be unconstitutional implements or executes a policy statement, 26 ordinance, regulation, or decision officially adopted and promulgated by the bodies' 27 officers. Monell v. New York City Department of Social Servs., 436 U.S. 658, 690 (1978). 28 A municipality cannot be held liable solely because it employs a tortfeasor. Id. at 691. "In 3 Case 2:03-cv-01344-EHC-HCE Document 147 Filed 10/03/2005 Page 3 of 7

1 order for a person acting under color of State law to be liable under § 1983 there must be 2 a showing of personal participation in the alleged rights depravation: there is no respondeat 3 superior liability under section 1983." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 4 2002). 5 `Congress did not intend to impose liability on a municipality unless deliberate

6 action attributable to the municipality itself is the "moving force" behind the Plaintiff's 7 depravation of Federal rights.' Board of the County Commissioners of Brian County, 8 Oklahoma, 520 U.S. at 400; citing Monell, supra, 436 U.S. at 694. The Supreme Court has 9 consistently required a plaintiff seeking to impose liability on a municipality under § 1983 10 to identify a municipal policy or custom that caused the plaintiff's injury. Brown at 403. 11 Even if Plaintiff could identify a policy or custom that caused his injury , which he

12 cannot, the plaintiff must also demonstrate that, through its deliberate conduct, the 13 municipality was the moving force behind the injury alleged. Id. at 404. The plaintiff must 14 show that the municipal action was taken with the requisite degree of culpability and must 15 demonstrate a direct causal link between the municipal action and the depravation of federal 16 rights. Id. Plaintiff can only meet this burden by offering proof that: (1) the municipality's 17 legislative body or authorized decision maker has intentionally deprived him of a federally 18 protected right; or (2) by showing that the action taken or directed by a municipality or its 19 authorized decision maker itself violated federal law. Id. at 405. In performing this 20 analysis, the Court is required to apply rigorous standards of culpability and causation to 21 insure that the municipality is not held liable solely for the actions of its employee when 22 plaintiff cannot offer evidence that the municipality has directly inflicted the injury, but 23 nonetheless caused an employee to do so. Id. (citations omitted). 24 To establish municipal liability, plaintiff must prove that: (1) the local government

25 or official promulgated a policy; (2) the policy displayed "deliberate indifference" and 26 proved the government's culpability; and (3) the policy led to the particular injury. Foust 27 v. McNeill (In re: Foust), 310 F.3d 849, 861 (5 th Cir. 2002). To satisfy the policy element, 28 4 Case 2:03-cv-01344-EHC-HCE Document 147 Filed 10/03/2005 Page 4 of 7

1 plaintiff must prove that the municipality's alleged actions are a result of either a formal 2 policy or informal policy. 3 Formal policy consists of "a policy statement, ordinance, regulation or decision that

4 is officially adopted and promulgated by the municipalities' lawmaking officers or by an 5 official to whom the lawmakers have delegated policymaking authority." Pineda v. City 6 of Houston, 291 F.3d 325, 328 (5 th Cir. 2002). A claim that the municipal policy itself 7 violates federal law, or authorizes and employee to do so, presents a fairly straightforward 8 case. City of Oklahoma v. Tuttle, 471 U.S. 808, 822 (1985)(holding that one application 9 of an unconstitutional policy fulfills the requirements of culpability and causation). 10 Informal policy consists of "a persistent, widespread practice of city officials or employees 11 which, although not authorized by officially adopted and promulgated policy, is so common 12 and well settled as to constitute a custom that fairly represents municipal policy." Id. 13 Where "a plaintiff seek[s] to establish municipal liability on the theory that a facially lawful 14 municipal action has led an employee to violate a plaintiff's rights, [he] must demonstrate 15 that the municipal action was taken with `deliberate indifference' as to its known or obvious 16 consequences." Brown, supra., 520 U.S. at 407. Plaintiff has not identified any formal 17 policy of ValueOptions that is unconstitutional. Therefore, Plaintiff must prove the 18 existence of an informal policy. 19 To establish an informal policy, a plaintiff is required to show a pattern of

20 constitutional violations from which the municipal entity's knowledge can be imputed or 21 inferred. Id.; Languirand v. Hayden, 717 F.2d 220, 227-228 (5 th Cir. 1983)(plaintiff must 22 show a "pattern of similar incidents in which citizens were injured or endangered by 23 intentional or negligent ...misconduct and/or that serious incompetence or misbehavior was 24 general or widespread ..."). A single incident by employees below the policy making level 25 does not suffice to support an inference of a municipal policy or custom. Tuttle, supra, 471 26 U.S. at 823; Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n. 12 (1986); DeCarlo v. Fry, 27 F.3d 56, 61 (2d Cir. 1998); Bennett v. City of Slidell, 728 F.2d 726, 768 n.3 (5 th Cir. 28 1984)("Isolated violations are not the persistent, often repeated, constant violations that 5 Case 2:03-cv-01344-EHC-HCE Document 147 Filed 10/03/2005 Page 5 of 7

1 constitute custom and policy."). Plaintiff presents no admissible evidence of a pattern 2 demonstrating a custom or policy of ValueOptions that caused the alleged constitutional 3 violation. Under Monell and Brown, plaintiff's lone allegation of a constitutional violation 4 is insufficient entitling ValueOptions to summary judgment. Brown, supra, 520 U.S. at 5 400; Monell, supra, 436 U.S. at 694. 6 Moreover, to prove deliberate indifference, a plaintiff must demonstrate "a pattern

7 of similar violations arising from [the policy] that is so clearly inadequate as to be obviously 8 likely to result in a constitutional violation." Durge v. St. Tammany Parish, 336 F.3d 363, 9 370 (5 th Cir. 2003). This would require a showing that ValueOptions knew or that it was 10 obvious that its employees would violate the plaintiff's rights. Brown, supra, 520 U.S. at 11 407. Liability may only be based on a single incident if a plaintiff proves that the "`highly 12 predictable' consequence of [the policy] would result in the specific injuries suffered, and 13 that [the policy] represented the `moving force' behind the constitutional violation." 14 Roberts v. City of Shreveport, 397 F.3d 287, 291-292 (5 th Cir. 2005) (citing Brown v. Brian 15 County, 219 F.3d 450, 461 (5 th Cir. 2000). Plaintiff has offered no admissible evidence of 16 other constitutional violations demonstrating a policy or custom or that would have put 17 ValueOptions on notice that it was likely that its employees might allegedly violate 18 plaintiff's rights in August of 2002. Even if this court considers plaintiff's evidence of 19 other alleged events, which it should not, they are insufficient to meet plaintiff's burden 20 since these events occurred subsequent to the subject event. No evidence exists to show the 21 necessary deliberate indifference. 22 IV. 23 Conclusion This is exactly the kind of case upon which Rule 56 was designed to perform its

24 limiting function. Due to the lack of sufficient allegations, and more importantly any 25 admissible evidence, of a custom or policy of ValueOptions demonstrating its deliberate 26 indifference to the plaintiff. Since plaintiff fails to offer a single shred of admissible 27 evidence supporting his claim, plaintiff's motion must be denied. 28 6 Case 2:03-cv-01344-EHC-HCE Document 147 Filed 10/03/2005 Page 6 of 7

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DATED this 3 rd day of October, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 5 6 7 ORIGINAL AND ONE COPY of the 8 foregoing electronically filed this 3 rd day of October, 2005, with: 9 United States District Court 10 401 West Washington Phoenix, Arizona 85003 11 AND COPY of the foregoing mailed 12 this 3 rd day of October, 2005 to: 13 Shannon M. Clark #113372 ASPC-Tucson-Santa Rita 14 P.O. Box 24406 Tucson, AZ 85734-4406 15 Plaintiff pro per 16 /s/ Connie Ahrenberg 17 18 19 20 21 22 23 24 25 26 27 28 7 Case 2:03-cv-01344-EHC-HCE Document 147

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

Filed 10/03/2005

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