Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 09/12/2005

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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'S RESPONSE TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Defendant Joe Ortiz, by and through counsel of record, Colorado Attorney General's Office, hereby files his Response to Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction as follows: 1. Plaintiff Oloyea D. Wallin ( "Plaintiff is an inmate with the Colorado ")

Department of Corrections ( "CDOC). Plaintiff alleges in his amended complaint filed with " this Court that Defendant Ortiz had"manipulated and abused his position as Executive " Director of CDOC "to wantonly inflict unnecessary pain on the plaintiff by denying the proper

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medical care needed for the serious injury See Prisoner Complaint, Claims 5 and 6, page 14. ". Plaintiff claims injuries to his left foot big toe and torn ligaments in his left ankle. 2. Plaintiff claims the injury to his ankle occurred on or about January 11, 2002.

See Prisoner Complaint, page 6, paragraph 1. On or about January 29, 2002, Plaintiff claims to have notified the medical department that his left foot big toe was in pain. See Prisoner Complaint, page 6, paragraph 5. During that time frame, Plaintiff was incarcerated at Kit Carson Correctional Facility ( "KCCF and was treated by medical personnel at that facility. ") 3. On or about August 8, 2005, approximately three and one-half years after

injury, Plaintiff filed a Motion for a Temporary Restraining Order and Preliminary Injunction, with an accompanying Memorandum of Law and Declaration in Support thereof. Plaintiff is asking the Court to order Defendant Ortiz to arrange for surgery, physical therapy and observation by a specialist for his ankle. 4. Currently, Plaintiff is incarcerated at Arkansas Valley Correctional Facility

( "AVCF Plaintiff has received adequate medical care for his ankle. On June 7, 2004, an x"). ray was performed on Plaintiff's ankle. On July 14, 2004, Plaintiff was taken off-site to see an orthopedic doctor. On August 13, 2004, Plaintiff received an MRI test on his ankle. The doctor's diagnosis of Plaintiff's condition is that of a ganglion cyst, a very common ailment that can cause swelling in the ankle. Any surgery on Petitioner's ankle would be elective surgery, which CDOC would not provide. Throughout all of these tests and doctor visits, there has been no recommendation for surgery or physical therapy or the need for additional specialists for Plaintiff. 2

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5.

Differences of opinion between a prisoner and medical staff do not constitute

deliberate indifference to a serious medical need. Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Olson v. Stotts, 9 F.3d 1475 (10th Cir. 1993); El'Amin v. Pearce, 750 F.2d 829832-33 (10th Cir. 1984); McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977), cert. denied, Jones v. McCracken, 435 U.S. 917(1978); Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). "The Constitution does not guarantee a prisoner the medical treatment of his choice. " Frohmader v. Wayne, 766 F. Supp. 909, 916 (D. Colo., 1991). "The prisoner's right is to medical care­ not to the type or scope of medical care which he personally desires. A difference of opinion between a physician and a patient does not give rise to a constitutional right or sustain a claim under § 1983. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. " 1968). An inmate is only entitled to receive a medical examination; he is not entitled to a diagnosis that he likes. Estelle v. Gamble, 429 U.S. 97, 104-106 (1976). Even a disagreement between experts would not give rise to a claim under § 1983. Supre v. Ricketts, 792 F.2d 958, 962-63 (10th Cir. 1986).

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For these reasons, Defendant Ortiz respectfully requests this Court deny Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction against him. Respectfully submitted this 12th day of September, 2005.

JOHN W. SUTHERS Attorney General /s/Deann Conroy DEANN CONROY Assistant Attorney General Corrections Unit Civil Litigation Section 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 12th day of September, 2005, I electronically filed the foregoing DEFENDANT ORTIZ'S RESPONSE TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 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/ Mariah Cruz-Nanio ______________________

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