Free Answer to Complaint - District Court of Colorado - Colorado

Case 1:04-cv-00215-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00215-WDM-MJW OLOYEA D. WALLIN, Plaintiff, v. HOYT BRILL, MS. WEDERSKI, MR. RAND, MS. HILL, MS. FRANK, MS. BAIR and MR. JOE ORTIZ, Defendants.

DEFENDANT ORTIZ' ANSWER TO PLAINTIFF'S COMPLAINT Defendant Joe Ortiz (hereinafter referred to as Defendant Ortiz), by and through his counsel of record, Colorado Attorney General's Office, hereby files his Answer to Plaintiff's Complaint as follows: A. PARTIES 1. Defendant Ortiz admits that Plaintiff was formerly incarcerated at the

Arapahoe County Detention Facility. 2. Defendant Ortiz admits that Hoyt Brill is the Warden of the Kit Carson

Correctional Facility ("KCCC"). Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 2 of Plaintiff's Complaint, and therefore, denies the same.

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3.

Defendant Ortiz admits that Ms. Wederski was the former health services

administrator at KCCC. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 3 of Plaintiff's Complaint, and therefore, denies the same. 4. Defendant Ortiz admits that Dr. Rand Neuenschwander was formerly

employed as a physician at KCCC. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 4 of Plaintiff's Complaint, and therefore, denies the same. 5. Defendant Ortiz admits that Ms. Hill was formerly employed at KCCC as a

nurse. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 5 of Plaintiff's Complaint, and therefore, denies the same. 6-10. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 ­ 10 of Plaintiff's Complaint, and therefore, denies the same. 11. Defendant Ortiz admits that Ms. Bair was employed at KCCC. Defendant

Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 11 of Plaintiff's Complaint, and therefore, denies the same.

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12-14. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 12 ­ 14 of Plaintiff's Complaint, and therefore, denies the same. 15. Defendant Ortiz admits that he is the Executive Director for the Colorado

Department of Corrections. Defendant Ortiz denies all remaining allegations contained in paragraph 15 of Plaintiff's Complaint. B. JURISDICTION 1. Defendant Ortiz admits that this Court has jurisdiction over Plaintiff's claims

pursuant to 42 U.S.C. § 1983 but denies having violated any of the Plaintiff's rights protected by such authority. 2. Defendant Ortiz denies the allegations contained in paragraph 2 of the section

entitled "B. Jurisdiction" in Plaintiff's Complaint. C. NATURE OF THE CASE 1-42. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 ­ 42 of the section entitled "C. Nature of the Case" in Plaintiff's Complaint and therefore, denies the same. INCLUSION OF DEFENDANTS 43-49. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 43 ­ 49 of the section entitled "Inclusion of Defendants" in Plaintiff's Complaint, and therefore, denies the same.

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50.

Defendant Ortiz denies the allegations contained in paragraph 50 of the section

entitled "Inclusion of Defendants" in Plaintiff's Complaint. D. CAUSE OF ACTION 1. Claim One: Eight Amendment to the United States Constitution violation

constituting deliberate indifference to the plaintiff's serious medical needs. Facts 1-4. Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in Claim One of Plaintiff's Complaint, and therefore, denies the same. 2. Claim Two: Eight Amendment to the United States Constitution violation

constituting deliberate indifference to the plaintiff's serious medical needs. Facts 1-4. Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in Claim Two of Plaintiff's Complaint, and therefore, denies the same. 3. Claim Three: Eight Amendment to the United States Constitution

violation constituting deliberate indifference to the plaintiff's serious medical needs. Facts 1-2. Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in Claim Three of Plaintiff's Complaint, and therefore, denies the same. 4. Claim Four: Eight Amendment to the United States Constitution

violation constituting deliberate indifference to the plaintiff's serious medical needs.

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Facts 1-2.

Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in Claim Four of Plaintiff's Complaint, and therefore, denies the same. 5. Claim Five: Eight Amendment to the United States Constitution violation

constituting deliberate indifference to the plaintiff's serious medical needs. Fact 1. Defendant Ortiz denies the allegations contained in paragraph 1 of

Claim Five of Plaintiff's Complaint. Facts 2-5. Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in paragraphs 2-5 of Claim Five of Plaintiff's Complaint and, therefore, denies the same. 6. Claim Six: Eight Amendment to the United States Constitution violation

constituting deliberate indifference to the plaintiff's serious medical needs. Fact 1. Defendant Ortiz denies the allegations contained in paragraph 1 of

Claim Six of Plaintiff's Complaint. Facts 2-5. Defendant Ortiz is without knowledge and information sufficient to

form a belief as to the truth of the allegations contained in paragraphs 2-5 of Claim Six of Plaintiff's Complaint and, therefore, denies the same. 7. Claim Seven: Medical Malpractice. Defendant Ortiz is without knowledge and information sufficient to

Facts 1-5.

form a belief as to the truth of the allegations contained in Claim Seven of Plaintiff's Complaint, and therefore, denies the same. 5

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8.

Claim Eight: Medical Malpractice. Defendant Ortiz is without knowledge and information sufficient to

Facts 1-5.

form a belief as to the truth of the allegations contained in Claim Eight of Plaintiff's Complaint, and therefore, denies the same. 9. Claim Nine: Medical Negligence. Defendant Ortiz is without knowledge and information sufficient to

Facts 1-2.

form a belief as to the truth of the allegations contained in Claim Nine of Plaintiff's Complaint, and therefore, denies the same. 10. Claim Ten: Medical Negligence. Defendant Ortiz is without knowledge and information sufficient to

Facts 1-2.

form a belief as to the truth of the allegations contained in Claim Ten of Plaintiff's Complaint, and therefore, denies the same. 11. Claim Eleven: Negligence. This Court dismissed this Colorado state court claim of negligence

Facts 1-2.

against Defendant Ortiz in a Court Order dated September 1, 2005. 12. Claim Twelve: Negligence. This Court dismissed this Colorado state court claim of negligence

Facts 1-2.

against Defendant Ortiz in a Court Order dated September 1, 2005.

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13. Fact 1.

Claim Thirteen: Intentional Infliction of Emotional Distress. This Court dismissed this Colorado state court claim of intentional

infliction of emotional distress against Defendant Ortiz in a Court Order dated September 1, 2005. 14. Fact 1. Claim Fourteen: Intentional Infliction of Emotional Distress. This Court dismissed this Colorado state court claim of intentional

infliction of emotional distress against Defendant Ortiz in a Court Order dated September 1, 2005. E. PREVIOUS LAWSUITS 1-6. Defendant Ortiz admits that Plaintiff has filed previous lawsuits. One of the

Plaintiff's lawsuits is the one he has listed in this section of Plaintiff's Complaint. Defendant Ortiz is without knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this section entitled "E. Previous Lawsuits" in Plaintiff's Complaint and, therefore, denies the same. F. ADMINISTRATIVE RELIEF 1. Defendant Ortiz admits the allegations contained in paragraph 1 of this section

entitled "F. Administrative Relief" in Plaintiff's Complaint. 2. Defendant Ortiz is without knowledge and information sufficient to form a

belief as to the truth of the remaining allegations contained in paragraph 2 of this section entitled "F. Administrative Relief" in Plaintiff's Complaint and, therefore, denies the same.

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G. REQUEST FOR RELIEF Federal Claims 1-6. Defendant Ortiz denies the allegations contained in the allegations contained in Plaintiff's Complaint in this section entitled "G. Request for Relief" under the heading of Federal Claims. Additionally, Defendant Ortiz denies that Plaintiff is entitled to any relief. State Claims 7-14. This Court dismissed the underlying state court claims that

would give rise to relief in a Court Order dated September 1, 2005, against Defendant Ortiz. Those claims are located in this section entitled "G. Request for Relief" under the heading of State Claims. GENERAL DENIAL Defendant Ortiz denies each and every allegation contained in Plaintiff's Complaint not specifically admitted herein. DEFENSES AND AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint fails, in whole or in part, to state a claim against

Defendant Ortiz upon which relief may be granted. 2. Plaintiff's claims are barred by sovereign, absolute, limited or qualified

immunity governed by the terms of the Colorado Governmental Immunity Act. 3. Plaintiff's claims against Defendant Ortiz based upon any alleged negligence

are barred, reduced or limited by Plaintiff's own comparative negligence, pursuant to § 1321-111.

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4. 10-106.5. 5. 6. 7.

Plaintiff's claims are barred by the operation of C.R.S. § § 24-10-106 and 24-

Plaintiff has failed to mitigate his damages, as required by law. Plaintiff has failed to fulfill all conditions precedent in bringing this action. Plaintiff's damages are limited or reduced in accordance with Colorado law,

including but not limited to, C.R.S. § § 13-21-102, and 13-21-102.5. 8. Plaintiff's claimed injuries were pre-existing and were not aggravated by any

claimed act or omission by Defendant Ortiz. 9. Defendant Ortiz is entitled to attorney's fees against the Plaintiff pursuant to

C.R.S. § 24-10-110(5)(c). 10. Plaintiff's claims are barred for his failure to comply with the exhaustion of

remedies set out in § 13-17.5-102.3. 11. Plaintiff's claims are barred in whole or in part by the physical injury and

exhaustion requirements of the Prison Litigation Reform Act. 12. Plaintiff is not entitled to the relief being claimed in the Complaint under the

legal theories being asserted. 13. Defendant Ortiz affirmatively asserts that Plaintiff's Eighth Amendment rights

were not violated. 14. Defendant Ortiz reserves the right to amend his Defenses and Affirmative

Defenses as the discovery process unfolds.

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Dated this 13th day of September, 2005. JOHN W. SUTHERS Attorney General /s/ Deann Conroy DEANN CONROY, #20557 Assistant Attorney General Corrections Unit, Civil Litigation Attorneys for Defendant Ortiz 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5161 Fax: (303) 866-5443 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of September, 2005, I electronically filed the foregoing DEFENDANT ORTIZ' ANSWER TO PLAINTIFF'S COMPLAINT with the Clerk of the Court using the CM/EMF system, which will send notification of such filing to the following e-mail addresses: Jennifer Viega (e-mail: [email protected]) Hall & Evans, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, CO 80202 And I hereby certify that I have mailed, via U.S. mail, this document to the following nonCM/ECF participant indicated by the non-participant's name: Oloyea D. Wallin, #111389 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034 /s/ Deann Conroy Deann Conroy, #20557 Assistant Attorney General Colorado Attorney General 1525 Sherman Street, 5th Floor Denver, CO 80203 Telephone: (303) 866-5161 Fax: (303) 866-5443 [email protected]

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