Free Reply to Response to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. 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 15 16 17 18 19 20 21 22 23 24 25 By 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant, ValueOptions, Inc. ("ValueOptions"), through undersigned counsel, and pursuant to Rule 56, Fed.R.Civ.P., hereby replies to plaintiff's response to defendant's second motion for summary judgment. ValueOptions' motion should be granted as plaintiff's response relies entirely on inadmissible and irrelevant evidence and advances only unsupported conclusory allegations insufficient when viewed against the standard required under applicable law. This reply is supported by the pleadings on file, the following memorandum of points and authorities and the objections to plaintiff's controverting statement of facts. RESPECTFULLY SUBMITTED this 16 th day of December, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. V A L U E O P T IO N S ' R E P L Y T O P LA IN TIF F 'S R E S P O N S E T O DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT Case No. CIV 03-1344-PHX-EHC (MS)

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MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT To further judicial economy in this matter and avoid unnecessary repetitive legal briefing, ValueOptions will refer the court to its response to plaintiff's motion for summary judgment and objections to plaintiff's statement of facts and controverting statement of facts. [Dkt. 147 and 148]. With the exception of a few additional arguments in plaintiff's response that ValueOptons fully addresses below, ValueOptions has sufficiently briefed the arguments raised in plaintiff's response to the second motion for summary judgment in ValueOptions' response to plaintiff's motion for summary judgment. Based on applicable law, plaintiff fails to offer legal authority or evidence demonstrating that a question of fact precluding summary judgment exists. A. Material Evidence Precluding Summary Judgment Does Not Remain to be Discovered.

Plaintiff's response argues that ValueOptions' motion should be denied because 14 material evidence remains to be discovered which would preclude summary judgment in 15 favor of defendant. (Plaintiff's Response, p. 2). In support of his argument, plaintiff cites 16 cases distinguishable from the facts in the current matter and advances arguments related 17 to discovery that have already been ruled on by this court rendering those arguments moot. 18 The cases relied upon by plaintiff to advance the proposition that material evidence 19 remains to be discovered precluding summary judgment in favor ValueOptions are not 20 applicable since discovery in this matter has already closed. [Dkt. 157]. Specifically, this 21 court has previously acknowledged in its October 27, 2005 order that the deadline for 22 discovery for this case was November 18, 2004. [Dkt. 157]. Plaintiff cannot continue 23 discovery or offer additional evidence since discovery has already closed. 24 Plaintiff also argues that he has motions pending seeking relevant evidence in the 25 possession of ValueOptions that would preclude summary judgment. However, this court 26 has already ruled that the allegedly relevant documents plaintiff refers to are privileged and 27 28 2

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protected by both state and federal privacy laws. [Dkt. 157]. Specifically, this court recognized that A.R.S. § 36-509 and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") impose strict limitations on the dissemination of patient's medical records. [Dkt. 157]. Further, this court recognized that plaintiff failed to make a showing that these documents were relevant or likely to lead to discovery of admissible evidence pursuant to Rule 26(f). [Dkt. 157]. As such, plaintiff is not entitled to further discovery and it is appropriate for this court to rule on ValueOptions' motion for summary judgment at this time. B. Plaintiff Fails to Offer Any Evidence of Prior Incidents of Similar Federal Rights Violations

Despite plaintiff's contentions to the contrary, the admissible evidence fails to 11 demonstrate the necessary elements of a cause of action against a municipality for medical 12 deliberate indifference. In support of his arguments, plaintiff wrongly relies on Bennett v. 13 14 in the present matter as it relied on evidence of allegedly similar violations that occurred 15 16 fails to offer any evidence of similar events occurring prior to the event which is the subject 17 of this litigation. As such, plaintiff cannot meet his burden to establish a municipal policy 18 or custom that caused his injury. Board of County Commissioners of Bryan County, 19 20 21 22 23 24 25 26 27 28 It is clear from Bennett that evidence of events is only relevant when it involves "conduct that has become a traditional way of carrying out policy and has acquired the force of law..." Id. (emphasis added). Merriam-Webster's Collegiate Dictionary, 1247 (10 th Ed. 1993), defines tradition as "an inherited, established, or customary pattern of thought, action, or behavior (as a religious practice or social custom)." Clearly the plain meaning of tradition would require that Plaintiff must offer evidence of events occurring prior to the incident which is the subject of this litigation. Simply put, events occurring after August of 2002, the only events plaintiff even offers as evidence are not only inadmissible as offered but also are irrelevant. 3
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City of Slidell, 728 F.2d 762, 768 (5 th Cir. 1984). Bennett is distinguishable from the facts

prior to the incident which was the subject of the litigation. Id.1 (emphasis added) Plaintiff

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Oklahoma v. Brown, 520 U.S. 397, 403 (1997). ValueOptions is entitled to summary judgment. II. CONCLUSION Due to lack of sufficient allegations, and more importantly any admissible evidence, establishing the necessary elements of a custom or policy of ValueOptions demonstrating its deliberate indifference to plaintiff, ValueOptions is entitled to summary judgment as a matter of law. RESPECTFULLY SUBMITTED this 16 th day of December, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 12 13 14 15 16 17 18 19 20 21 /s/ Brad M. Thies 22 23 24 25 26 27 28 4 Original of the foregoing e-filed with the Clerk this 16 th day of December, 2005. Copy of the foregoing mailed this 16 th day of December, 2005, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per

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

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

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