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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-02555-JLK-BNB PAMELA CLIFTON, Plaintiff, v. NURSE ILONA EUBANK, in her individual capacity; OFFICER DAWN ANAYA, in her individual capacity; and OFFICER IRIA WILKS, in her individual capacity, Defendants. ______________________________________________________________________________ DEFENDANTS EUBANK, ANAYA, and WILKS' REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya, by and through counsel, Hall & Evans, L.L.C., hereby submit this Reply Brief in Support of their Motion for Summary Judgment, and as grounds therefore state as follows: BACKGROUND AND INTRODUCTION On April 15, 2002, Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya filed a Motion for Summary Judgment. In their Motion, Defendants asserted summary judgment was appropriate on six separate bases. First, Plaintiff cannot enforce any rights of another, including an unborn fetus, pursuant to 42 U.S.C. § 1983. Second, Plaintiff suffered no physical injury by virtue of anything alleged in this matter, as required under the Prison Litigation Reform Act (PLRA). Third, each individual Defendant is entitled to qualified immunity from the Plaintiff's § 1983 claims, because

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Plaintiff cannot demonstrate any violation of a clearly established constitutional right, nor that any Defendant acted with deliberate indifference. Fourth, Plaintiff's intentional infliction of emotional distress or outrageous conduct claim fails because Plaintiff cannot establish that any of the individual Defendants' conduct was utterly atrocious and beyond the bounds of civilized society. Fifth, Plaintiff alleges insufficient facts to support her retaliation claim. Sixth, Plaintiff cannot demonstrate that any of the Defendants acted with sufficient recklessness, willfulness or wantonness to support any claim for punitive damages. [See Docket No. 23]. On April 17, 2002, this Court issued an Order Striking Defendants' Motion for Summary Judgment based on pending settlement negotiations. [See Docket No. 25]. On April 26, 2002, Defendants resubmitted their Motion for Summary Judgment citing the propriety of filing a Motion for Summary Judgment while settlement negotiations proceeded. [See Docket No. 26]. On the same date, Defendants filed a Motion to Stay Pending Determination of Entitlement to Qualified Immunity. [See Docket No. 28]. This Court accepted the second filing of the Motion for Summary Judgment. However, on May 17, 2002, this Court issued an Order Denying Motion to Stay Pending Determination of Entitlement to Qualified Immunity. [See Docket No. 35]. On July 9, 2002, Plaintiff sought and was granted a Motion for Extension of Time to Respond to the Motion for Summary Judgment. [See Docket Nos. 40 and 41]. On August 8, 2002, Plaintiff filed a Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 42]. On the same date, Plaintiff sought a Second Extension of Time to Respond to Motion for Summary Judgment Pending a Court Ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See

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Docket No. 43]. On August 13, 2002, before Defendants could respond to Plaintiff's Motions respecting briefing on the Motion for Summary Judgment, the Court granted Plaintiff ten (10) days following a ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA to Respond to Defendants' Motion for Summary Judgment in its entirety. [See Docket Nos. 44 and 45]. On the same date, Defendants filed a Motion to Reconsider this Court's Order based on the fact that the Motion for Summary Judgment contained multiple arguments that could be the basis for summary judgment without reaching the Constitutional issue of the PLRA and that full briefing of the summary judgment motion should be completed prior to any resolution of any constitutional issue. [See Docket No. 46]. On August 14, 2002, this Court issued an Order rejecting Defendants' reconsideration request. [See Docket No. 47]. On August 30, 2002, Defendants filed a Response to Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 48]. On September 23, 2002, Plaintiff filed a Reply to Response to Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 53]. On January 27, 2003, the intervener, the United States of America, filed a Response to Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 58]. No further rulings or briefing occurred until Plaintiff, on October 20, 2005, filed a Motion for Ruling on Defendants' Motion for Summary Judgment. [See Docket No. 64]. Upon receipt of the Motion, Defendants contacted counsel for Plaintiff to inform him that the Motion for Summary

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Judgment was not yet briefed and that a Court Ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA was the appropriate request. The following day, on October 21, 2005, Plaintiff filed an Amended Motion for ruling on Defendants' Motion for Summary Judgment, clarifying her request. [See Docket No. 65]. On October 21, 2005, this Court issued an Order granting Plaintiff's request and indicating that a ruling would be announced in the early part of 2006. [See Docket No. 66]. Although Defendants' Motion for Summary Judgment was never earlier briefed in full, on March 8, 2006, this Court issued an Order denying Defendants' Motion for Summary Judgment, determining the PLRA's physical injury requirement did not bar Plaintiff's claims. [See Docket No. 68]. The Court's ruling contained no mention of any other argument raised in Defendants' Motion for Summary Judgment. [Id.]. On March 17, 206, Defendants filed a Motion for Reconsideration of the March 8, 2006, Order. [See Docket No. 71]. On this same date, Defendants also filed a Motion for Certification, pursuant to 28 U.S.C. § 1292(b), of this Court's March 8, 2006, Order based on the Court's determination that prolonged labor was a sufficient to meet the physical injury requirement of the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. §1997e(e). [See Docket No. 72]. On April 5, 2006, this Court issued an Order denying the Motion for Certification and granted, in part, Defendants' Motion for Reconsideration. [See Docket No. 79]. The Court ordered the parties confer and present the Court with a briefing schedule for the remaining issues raised in the Motion for Summary Judgment. [Id.]. The Court further ordered that no further briefing was necessary concerning the issue of punitive damages since the Court had already concluded that the record supports such a claim being presented to a jury. [Id.]. On April 11, 2006, the parties submitted a proposed briefing schedule for the remaining

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issues, which the Court accepted on April 13, 2006. [See Docket Nos. 80 and 81]. On June 9, 2006, Plaintiff filed a Motion to Dismiss her retaliation claim, which the Court granted on June 12, 2006. [See Docket Nos. 82 and 83]. On June 19, 2006, over four years after the filing of the Motion for Summary Judgment, Plaintiff responded to Defendants' Motion for Summary Judgment. [See Docket No. 84].

Defendants now file a Reply in Support of their Motion for Summary Judgment. RESPONSE TO ADDITIONAL "DISPUTED FACTS" The "Statement of Additional Disputed Facts" contained in Plaintiff's Response to Motion for Summary Judgment offers no material facts necessary to the resolution of the pending Motion for Summary Judgment. The Defendants do not rely on any such facts and there is no reason for such facts to be evaluated in any way in terms of this Motion. For the most part, such facts are grounded in hearsay or otherwise inadmissible for purposes of summary judgment. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1082 n.5 (10th Cir. 1999) (at summary judgment stage of an action courts should disregard inadmissible hearsay statements, as such statements could not be presented at trial in any form); see also Truck Ins. Exchange v. MagneTek, Inc., 360 F.3d 1206, 1216 (10th Cir. 2004) (affirming summary judgment, in light of the available evidence, because "[j]ury verdicts may not be based on speculation or inadmissible evidence or be contrary to uncontested admissible evidence"). A specific example of inadmissible evidence exists in the form of Plaintiff's tendered testimony from a medical doctor, opining with respect to the existence of "deliberate indifference," a standard no medical licensee could offer in support of any claim here. For the purposes of the arguments raised in the Motion for Summary Judgment, none of these additional facts are material, and for the purpose of this Motion, there is no dispute regarding the

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testimony offered by Defendants Anaya and Wilks at their deposition. They are also in no position to provide testimony with respect to any events that took place outside their presence and were unknown to them. No such facts bear on the pending Motion, as they are not material to the arguments raised by Defendants' Motion for Summary Judgment.1 ARGUMENT I. PLAINTIFF MAY ONLY STATE A 42 U.S.C. § 1983 CLAIM FOR VIOLATIONS OF HER OWN CONSTITUTIONAL RIGHTS As stated in the Motion for Summary Judgment, the Tenth Circuit has long held one cannot enforce the rights of another pursuant to 42 U.S.C. § 1983. See, e.g., Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982) (holding that a father is unable to state a cognizable claim based on the District Attorney's decision not to prosecute the man allegedly responsible for killing his son due to a discriminatory motive); Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993) ("Thus, one does not have standing to assert a violation of rights belonging to another, since the person entitled to the right is the only one who can be directly injured by its deprivation."); Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) ("We must keep firmly in mind the wellsettled principle that a section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else."). The only injury Plaintiff alleges is that related to the stillbirth. [See Clifton Dep., p. 69, ll. 14-19, attached as Exhibit A to Motion for Summary Judgment, Docket No. 30]. Further, Plaintiff alleges nothing to indicate a Defendant caused her physical harm. [Id., p. 66, ll. 22-25, p.

1 All facts pertaining to Defendants' Motion for Summary Judgment are undisputed only for the purposes of this Motion. The right to contest every one of these facts at any later stage, including at trial, is specifically reserved.

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67, ll. 1-6]. These realities indicate that Plaintiff states no claim for any alleged violation of her constitutional rights. See, e.g., Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987), cert. denied, 484 U.S. 935 (1987), overruled on other grounds, 199 F.3d 1037 (9th Cir. 1999) (children of decedent could not sue for violations of the Fourth Amendment based on alleged use of excessive force on their father in the absence of their being subject to the use of force personally). What Plaintiff attempts in her Complaint is the expression of a claim that inattention to her pregnancy caused the death of the fetus, generating a civil rights damages claim for Plaintiff. This assertion is unfounded and unsupported by any medical facts. Plaintiff offers no facts that could support the argument that Plaintiff suffered physical injury that was not otherwise inescapable, given her pregnancy and the necessity for labor that accompanied that pregnancy, or that any inattention by anyone to her pregnancy caused the stillbirth or violated any rights of Plaintiff. Plaintiff's response relies heavily on this Court's March 8, 2006, Order concerning the PLRA's physical injury requirement. Specifically, Plaintiff relies on Pool v. Sebastian County, 418 F.3d 934 (8th Cir. 2005) and Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992) to support her assertion that she has presented a claim concerning a constitutional violation of her rights as opposed to simply asserting a claim for the rights of her stillborn fetus. [See Response to Motion for Summary Judgment, at 13-14, Docket No. 84]. Such reliance is misplaced. The defendants in Pool did not, as asserted by Plaintiff, advance "essentially the same argument" as Defendants here. [See Response to Motion for Summary Judgment, at 13, Docket No. 84]. In fact, the PLRA's physical injury requirement was never discussed in Pool, nor did the Court make any determination concerning whether Plaintiff suffered any physical injury. See Pool, 418 F.3d at 937 ("the only issue on appeal is whether the district court erred in denying Appellants'

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motion for summary judgment on the § 1983 claim based on qualified immunity.") (emphasis added). As such, Pool provides no support for the proposition that prolonged labor and the miscarriage of a fetus meets the PLRA's physical injury requirement or otherwise supports Plaintiff's assertion that she has stated a claim of constitutional violation against her individually. Additionally, a review of federal law establishes that any reliance on Burgess, a state medical malpractice case, is also misplaced since the "`[United States] Supreme Court has repeatedly warned that section 1983 must not be used to duplicate state tort law on the federal level.'" Medina v. City and County of Denver, 960 F.2d 1493, 1495 (10th Cir. 1992) (quoting Washington v. District of Columbia, 802 F.2d 1478, 1480 (D.C. Cir. 1986); see also Baker v. McCollan, 443 U.S. 137, 146 (1979) (holding that the tort of false imprisonment does not become a violation of the Due Process Clause of the Fourteenth Amendment simply because the defendant is a state official and that "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law."). Indeed, the Federal Constitution is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976). Simply put, not all conduct by a government official that injures an individual's life, liberty, or property gives rise to a constitutional violation actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 333 (1985). Whatever may be the merits of analyzing cases addressing state tort claims to determine whether a constitutional violation occurred pursuant to § 1983 is ineffective because the Federal Courts are not to evaluate tort claims but rather, to determine whether Plaintiff properly pled a constitutional claim against these Defendants. Although a § 1983 claim has been described as a species of tort liability, it is perfectly clear that not every injury in which a state official has played

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some part is actionable under that statute. To hold otherwise would render § 1983 and the United States Constitution a font of tort law to be superimposed upon whatever systems may already be administered by the states. As such, any reliance on state court cases addressing state tort claims as support for the proposition that Plaintiff has properly pled a constitutional claim must be rejected. For that matter, any effort by Plaintiff to link the outcome of her pregnancy and any claimed facts associated with these Defendants lacks any medical, factual or legal basis. No doctor links the stillbirth to a delay of any kind or to any other facts. No doctor opines regarding the status of Plaintiff's pregnancy and the outcome of that pregnancy. To sustain a claim that her pregnancy and the outcome of that pregnancy was somehow impacted by a Defendant's alleged behavior, Plaintiff requires proof of that impact she never offers and cannot provide. II. ALL OF THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY FROM PLAINTIFF'S 42 U.S.C. § 1983 CLAIMS Plaintiff's Response to Motion for Summary Judgment fails to overcome the qualified immunity of Defendants Eubank, Anaya, and Wilks respecting any claims pursuant to 42 U.S.C. § 1983. Plaintiff does not and cannot demonstrate that any of the individual Defendants violated any of her clearly established constitutional rights or acted with deliberate indifference to Plaintiff's medical needs. Under the Eighth Amendment, Plaintiff possesses insufficient evidence as a matter of law that any individual Defendant possessed any actual knowledge respecting any risk of substantial harm to Plaintiff posed by their acts or omissions. No facts exist that even lead to the inference that any individual Defendant possessed any potential foreknowledge that Plaintiff's condition posed any risk of substantial harm. It is undisputed that Plaintiff was provided medical care throughout her

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pregnancy. [See Clifton Dep., p. 35, ll. 1-22, attached as Exhibit A to Motion for Summary Judgment, Docket 30]. It is also undisputed that this care continued through December 1998. [Id., p. 32, ll. 12-14, p. 65, ll. 3-16]. There are simply no allegations that establish that any Defendant had "fair warning" that their actions violated Plaintiff's rights. Absent such evidence, Plaintiff's claim fails as a matter of law. Whether a violation of the Eighth Amendment exists based on a prisoner's conditions of confinement requires an analysis of two factors. First, the deprivation alleged by the inmate must be objectively "sufficiently serious" to trigger the protection of the Eighth Amendment, which occurs when the conditions of confinement deprive the inmate of the minimal civilized measure of life's basic necessities. Wilson v. Seiter, 501 U.S. 294, 298 (1991); Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Second, the prison official must also have a "sufficiently culpable state of mind" which means the official must be deliberately indifferent to a substantial risk of harm to the inmate. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson, 511 U.S. at 297. Importantly, the deliberate indifference standard requires a subjective inquiry into the individual defendant official's intent. "[A] prison official is liable only if the `official knows of and disregards an excessive risk to inmate health and safety.' It is not enough to establish that the official should have known of the risk of harm." Barney, 143 F.3d at 1310. "In other words, the official must both be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference." Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996). A. Conduct by Defendants Wilks and Anaya The Court must determine whether Defendants Dawn Anaya and Iria Wilks violated the Plaintiff's Eighth Amendment rights by being deliberately indifferent to any known risk. To do so,

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the alleged behavior of each must be examined in specific terms. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (to state a § 1983 claim, a plaintiff must allege facts establishing that each defendant personally participated in the alleged violation). Plaintiff failed to show a proximate causal link between the purported act or inaction of Defendant Anaya or Defendant Wilks, and the alleged deprivation of Plaintiff's rights. See Daniels v. Gilbreath, 668 F.2d 477, 480-481 (10th Cir. 1982) (causation is a necessary element of a § 1983 claim of deliberate indifference). Plaintiff does not and cannot make any such proximate cause claim against either Defendant Wilks or Defendant Anaya. It is undisputed that Plaintiff sought assistance from the facility clinic on December 25, 1998, and that she received such assistance. [See Response to Motion for Summary Judgment, at 3-4, ¶¶ 1 through 6 and 8 (admitting that Plaintiff sought permission to go to the facility clinic and that she did, in fact, go to the clinic)]. Plaintiff was examined and it was determined that she was experiencing false labor. Although this determination may have been wrong, Plaintiff presents no evidence establishing that the result of this examination would differ if she was taken to the clinic at any other or earlier time on December 25, 1998. Even if Plaintiff is correct that, at the time of the requests, she was in labor, no evidence exists to establish that had she been immediately sent to the clinic that she would not have experienced prolonged labor nonetheless. It is further undisputed that all of Plaintiff's allegations against these defendants relate to the loss of the unborn fetus, and all such events took place before her examination on December 25, 1998. [Id.]. Plaintiff argues that both Defendant Wilks and Defendant Anaya were obliged to send Plaintiff to the facility clinic before 2 p.m. on December 25, 1998. She claims neither did so. Plaintiff admits that both Defendants were positioned only to send Plaintiff to the facility clinic.

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After Plaintiff encountered both, she went to that clinic. Therefore, suit against them, even if a constitutional violation could somehow otherwise be found, is improper because Plaintiff cannot establish a causal relationship between any acts or inactions of these Defendants, who are not medical experts, and the stillbirth of Plaintiff's unborn fetus. See McCracken v. Jones, 562 F. 2d 22, 24 (10th Cir. 1977) cert. denied, Jones v. McCracken, 435 U.S. 917 (1978) (once a matter is referred to medical staff, the matter is out of prison official's hands and they cannot be held liable). In other words, no matter when Plaintiff went to the clinic, just after asking Ms. Anaya or Ms. Wilks for help as Plaintiff alleges she did or later that same day, nothing either Defendant could or did pose any potential for alerting anyone of Plaintiff's circumstance. Plaintiff's allegations also fail to support a claim that her condition was sufficiently serious or that Defendants possessed the requisite culpable state of mind. Farmer, 511 U.S. at 834. Plaintiff told Defendant Anaya that she thought she was in labor and that she was having contractions. [See Clifton Dep., p. p. 19, ll. 1-6, attached as Exhibit A to Motion for Summary Judgment, Docket No. 30]. Defendant Anaya allowed Plaintiff to go the bathroom. Following this conversation, Plaintiff hung around the unit and then went to lunch. [See Clifton Dep., p. 19, ll. 1-7, p. 25, ll. 15-20, attached to Motion for Summary Judgment, Docket No. 30]. On the way back to her unit after lunch, Plaintiff stopped by master control and talked with Defendant Wilks, who instructed Plaintiff to return to her unit. [Id., p. 25, ll. 15-20, p. 26, ll. 1-4]. Plaintiff returned to her unit and did not seek any further assistance until over five further hours passed. [Id., p. 28, ll. 18-20]. During this long interval, Plaintiff had ample opportunity to contact a number of corrections officers to get assistance. [Id., p. 26, ll. 18-20]. Prison officers continuously function in the prison around the living units, in the dining area, and in the master control. Plaintiff wants to contend that she controls

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what officers she would confront with her circumstances without offering any explanation for the illogic of her own actions, particularly given the omnipresence of multiple prison officers throughout the pertinent interval. The allegations in this case are distinguishable from those alleged in the cases cited in Plaintiff's Response to Motion for Summary Judgment and would not provide these Defendants with "fair warning" that Plaintiff was suffering a serious medical need. Besides the encounter with Defendant Anaya and Defendant Wilks, Plaintiff showed no sign of trouble, nor did she seek assistance from any other corrections officer for over a six-hour period. [See, e.g., id. p. 19, l. 1, p. 29, l. 1]. In Archer v. Dutcher, 733 F.2d 14 (1984), the allegations were that the plaintiff was "suffering torturous cramping and vaginal bleeding," as well as continuously crying for help. Archer 733 F.2d at 15-16. In Coleman v. Rahija, 114 F.3d 778 (8th Cir 1997), the defendant had actual knowledge of the plaintiff's "long history of problematic pregnancies" and was aware of plaintiff's bleeding. Coleman, 114 F.3d at 781-83. The court further noted that the defendant in Coleman, upon conducting an examination, concluded "that Coleman was in `possible early labor.'" Id. at 783. In Boswell v. County of Sherburne, 849 F.2d 1117 (8th Cir. 1988), the defendants again had actual knowledge "that Boswell was six and one-half months pregnant and was having a problem pregnancy" and that the plaintiff again was bleeding and continually seeking help. Boswell, 849 F.2d at 1119-20. Lastly, in Herrera v. Valentine, 653 F.2d 1220 (1981), the plaintiff was "visibly in the latter months of pregnancy" and "was kicked in the stomach" by the defendant. Herrera, 653 F.2d at 1222. Following being kicked in the stomach, handcuffed, and thrown into the back of a police car, the plaintiff requested medical attention for her pregnancy and such pleas were ignored. Id.

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Plaintiff fails to establish that any such facts or anything similar offered these Defendants "fair warning" that an inmate merely complaining of labor pain, with no visible signs of a serious medical need, placed Defendant Anaya and Wilks on notice that she required immediate medical attention. See Hope v. Pelzer, 536 U.S. 730, 740, n.10 (2002) (although rejecting a standard for clearly established law that requires the facts of a case to be "materially similar" the Court nonetheless declared that the facts of other cases must provide "fair warning" to establish that the law was clearly established at the time of the incident). In fact, her own actions during the time period at issue, which must encompass at least six hours, would not place any person on notice that Plaintiff was confronting a serious medical need sufficient to require intervention, let alone establish that Defendants were deliberately indifferent to a substantial risk of harm to Plaintiff. Defendants Anaya and Wilks possessed no actual knowledge of Plaintiff's medical history concerning her previous pregnancies, Plaintiff does not claim she was bleeding or otherwise presenting any physical signs of trouble, and did not continuously seek out assistance that was denied. In fact, for over six hours Plaintiff did nothing other than state on two occasions that she did not feel well and believed she may be in labor. These undisputed facts simply do not establish any culpability on the part of Defendants Wilks and Anaya as a matter of law. Further, Plaintiff's claims are based on the basic assertion that a pregnant inmate who complains of not feeling well and states that she believes she is in labor is serious enough a complaint in every instance to compel a physician's attention. In other words, she argues that every pregnant inmate with a subjective complaint of not feeling well and a self-diagnosed opinion that she is in labor must immediately be seen by a physician or be transported to a hospital or deliberate indifference to the inmate's medical needs will occur. No rational basis exists for this contention,

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which amounts to claiming that prison inmates dictate when a hospital visit is necessary. If this became the adopted standard, the approach would invite all pregnant inmates to line up at the prison gate with complaints of not feeling well as a means to obtain a break from the daily prison routine and to enjoy a ride to and from the hospital. This scenario may not even come close to addressing the penological consequences that might ensue if such complaints must result in immediate physician care or immediate transportation of the inmate to a hospital. See Beerhide v. Suthers, 286 F.3d 1179, 1184 (10th Cir. 2002) (although convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison; in some instances constitutional rights must be curtailed due to the very fact of incarceration or for valid penological reasons). Nothing about Plaintiff's core allegations states a culpable state of mind on the part of any Defendant nor do her allegations establish that the outcome would have been different had they acted. At most, Plaintiff claims bad judgment resulting in decisions and actions she challenges as wrong. In other words, she says these individuals needed to do something sooner or different than was dictated by their professional judgment at the time. As discussed above, it is well settled that negligence, even gross negligence, cannot meet the deliberate indifference standard required for a violation of the Eighth Amendment's cruel and unusual punishment clause. Estelle, 429 U.S. at 104-05; Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). Again, deliberate indifference requires "a higher degree of fault than gross negligence." Berry, 900 F.2d at 1495. Lastly, as recently as December 13, 2004, over two years after its decision in Hope, supra, the United States Supreme Court reaffirmed the more narrow test applied, prior to Hope's "fair warning" test, when evaluating whether a particular constitutional right is clearly established.

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Brosseau v. Haugen, 543 U.S. 194 (2004). In Brosseau, the Court indicated that in determining whether a particular law is "clearly established" for qualified immunity purposes, courts cannot apply general reference to a constitutional right. Indeed, in Brosseau, the Court clarified that "this inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Brosseau 543 U.S. at 198 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). In sum, a public employee is entitled to qualified immunity unless the prior law removes all doubt as to how the employee should have acted. Brosseau v. Haugen, 543 U.S. at 201. The cases relied on by Plaintiff do not remove all doubt as to how the these Defendants should have acted and, thus, Defendants Anaya and Wilks are entitled to qualified immunity from Plaintiff's claims. B. Conduct by Defendant Eubank Additionally, as discussed in the Motion for Summary Judgment, in a physical health context, a prison official may violate the Eighth Amendment's Cruel and Unusual Punishment Clause only if conduct demonstrating a deliberate indifference to the serious medical needs of prisoners is established. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Estelle's two-part inquiry contains an objective component, whether the prisoner's need was sufficiently serious, and a subjective component, whether the particular prison official's state of mind was sufficiently culpable to be deliberately indifferent to the prisoner's medical condition. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000); Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996). Again, the medical need must be sufficiently serious to satisfy the objective component of this inquiry. Further, to meet the subjective component of this test, a plaintiff must establish the defendant "knew he faced a substantial risk of harm and disregarded that risk, `by failing to take reasonable measures to abate it.'" Hunt v. Uphoff, 199 F.3d 1220, 1224

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(10th Cir. 1999) (quoting Farmer, 511 U.S. at 847). The purpose of the subjective element is to determine whether a defendant "had a sufficiently culpable state of mind." McClendon v. City of Albuquerque, 79 F.3d 1014, 1022 (10th Cir. 1996). Differences of opinion over the medical treatment an incarcerated inmate received do not rise to the level of a constitutional violation. Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 781 (10th Cir. 1999); Johnson v. Stephen, 6 F.3d 691, 692 (10th Cir. 1993). Defendant Ilona Eubank was the nurse at CWCF who was confronted by Plaintiff in the evening of December 25, 1998. Applying the principles outlined above, and discussed in more detail in the Motion for Summary Judgment, to the facts of the instant case demonstrates unequivocally that there is no factual basis available that permits anyone to conclude that Ms. Eubank acted with deliberate indifference. Plaintiff acknowledges that Ms. Eubank examined her on December 25, 1998, and concluded that any contractions were false labor contractions. [See Clifton Dep., p. 122, ll. 5-21, attached as Exhibit A to Motion for Summary Judgment, Docket No. 30]. Plaintiff further acknowledges that on December 26, 1998, Nurse Eubank again provided Plaintiff with an examination and assistance in obtaining additional treatment from a physician's assistant. [Id., p. 65, ll. 3-16]. At best, any assessment performed by Ms. Eubank on December 25, 1998, might be argued to be negligent, as is essentially argued by Plaintiff's expert, Dr. Reid Alan Goodman. However, the fact that the assessment occurred, then Plaintiff went back to her housing unit for approximately twenty-four hours before she sought additional attention establishes no deliberate indifference and, thus, such facts are insufficient to sustain a claim as a matter of law. See Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Berry v. City of Muskogee, 900 F.2d 1489, 1495-96 (10th Cir.

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1990) (deliberate indifference requires a higher degree of fault than negligence, or even gross negligence). In fact, in Coleman, supra, the Court determined that the plaintiff's first encounter with the defendant, in which the defendant did not take the plaintiff's vital signs, did not perform a vaginal examination, nor attempt to monitor the baby's heart tones prior to sending the plaintiff back to her cell did not establish any deliberate indifference on the part of the defendant. See Coleman 114 F.3d 782. It was not until a later visit, upon which the defendant noted that the plaintiff was in "possible early labor" did the defendant have a duty to act and seek further assistance for the plaintiff. Id. at 784. It is undisputed that on December 25, 1998, Nurse Eubank made a professional judgment, based on her examination of Plaintiff, that Plaintiff was not in labor. [See Deposition of Ilona Eubank, p. 41, ll. 23 through 25, attached as Exhibit 7 to Plaintiff's Response to Motion for Summary Judgment]. If Nurse Eubank shunned Plaintiff, or refused to assess her condition on December 25, 1998, a case of a different nature might exist in this instance. The undisputed facts establish that Nurse Eubank undertook to examine Plaintiff and decide a course of action to be taken, making it illogical to contend that any deliberate indifference by Ms. Eubank prompted anything that happened to Plaintiff. Plaintiff's reliance on Dr. Goodman's medical judgment is insufficient to establish, as a matter of law, a factual dispute as to whether Nurse Eubank's actions showed deliberate indifference to Plaintiff's medical needs. Any alleged deviation from what Dr. Goodman deems as acceptable standards of nursing care simply establish that Nurse Eubank's actions were based on either bad judgment or negligent diagnosis. [See Plaintiff's Response to Motion to Dismiss, at 22-23 (stating that Dr. Goodman's medical expert opinion is that Nurse Eubank should have sought further

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assistance, i.e. her judgment was poor or negligent)]. Based on these allegations, Plaintiff concludes, without more, that Defendants were deliberately indifferent to Plaintiff's constitutional rights. See Pride, 997 F.2d at 716 (conclusory, nonspecific and generalized allegations of constitutional deprivations are insufficient to support a § 1983 claim); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (bare conclusory statements do not support a cause of action.). In essence, Plaintiff is asking this Court to accept what the United States Supreme Court declared insufficient to state a § 1983 claim: that medical malpractice is equivalent to deliberate indifference. See Estelle, 429 U.S. at 106. Plaintiff acknowledges that Nurse Eubank saw her, performed a vaginal examination, and attempted to react to her requests for assistance. See Mata v. Saiz, 427 F.3d 745, 760 (10th Cir. 2005) (determining that the defendant's subjective belief that the plaintiff was not suffering a serious medical condition following an examination of the plaintiff fails to establish that the defendant was "consciously disregarding a known risk to" the plaintiff and, therefore, the defendant was entitled to qualified immunity). Plaintiff's entire assertion is not that Nurse Eubank was callous and indifferent to any known or knowable medical need but was simply not competent in any assessment or effort to assist and was required to seek additional assistance. These allegations are insufficient to state a cognizable constitutional claim. See Estelle, 429 U.S. at 106 (a misdiagnosis or an inadvertent medical mistake is not a constitutionally cognizable claim). In short, Plaintiff's assertions reflect that she seeks to present a nursing malpractice suit, not a civil rights complaint. She also offers this as the only basis for overcoming the qualified immunity of Nurse Eubank. Both efforts require the dismissal of her claims. III. PLAINTIFF'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS OR OUTRAGEOUS CONDUCT CLAIM FAILS AS A MATTER OF LAW

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Plaintiff fails to refute that her intentional infliction of emotional distress or outrageous conduct claims against Defendants fail as a matter of law. [See Plaintiff's Response to Motion for Summary Judgment, at 24]. Plaintiff lacks sufficient evidence to demonstrate that any conduct by any of the individual Defendants rises to the level of extreme and outrageous conduct. The threshold for extreme and outrageous conduct is an extremely difficult one to meet and Plaintiff never does so in the instant case. As discussed in the Motion for Summary Judgment, under Colorado law, the tort of extreme and outrageous conduct is comprised by three elements: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant engaged in the conduct recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) the plaintiff incurred severe emotional distress which was caused by the defendant's conduct. Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). The Court must determine as a matter of law whether reasonable persons could differ on the outrageousness of the conduct. Spencer v. United Mortgage Co., 857 P.2d 1342, 1345 (Colo. App. 1993); Ellis v. Buckley, 790 P.2d 875, 876 (Colo. App. 1989), cert. denied, 498 U.S. 980 (1990). If not, summary judgment is appropriate. Denver & Rio Grande Western R. Co. v. Forster, 773 P.2d 612, 614-15 (Colo. App. 1989); Lindemuth v. Jefferson County Sch. Dist. R-1, 765 P.2d 1057, 1059 (Colo. App. 1988). "To qualify as outrageous, the offending conduct must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community." Zick v Krob, 872 P.2d 1290, 1295 (Colo. App. 1993); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1349 (Colo. 1988). The requisite intent by the defendant to support an outrageous conduct claim "is present where the actor desires to inflict severe emotional distress and knows that it is substantially certain to result from his conduct, or where he acts recklessly in deliberate

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disregard of a high degree of probability that the emotional distress will follow." Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1159 (10th Cir.) (en banc), cert. denied, 464 U.S. 824 (1983) (internal quotation marks and citations omitted). In the instant case, Plaintiff never presents sufficient allegations to support any conclusion that any of the individual Defendants engaged in anything even remotely approaching outrageous conduct. Assessing the Plaintiff's allegations as outlined in the Statement of Undisputed Facts contained in the Motion for Summary Judgment, [see Motion for Summary Judgment, at 3-6, Docket No. 30], against the individual Defendants demonstrates that they simply do not reach the threshold level necessary to comprise outrageous conduct. The allegations against the individual Defendants are not the type of conduct that must exist before a viable outrageous conduct claim may exist. To state an outrageous conduct claim, Plaintiff must allege more than simply Defendants' conduct was in general, discriminatory, unpleasant, boorish, disparaging, hostile or even illegal. She must come forward with specific evidence to demonstrate the conduct of each of the individual Defendants went beyond all permissible bounds of decency and was utterly intolerable for a civilized society. Zick, 872 P.2d at 1295; Churchey, 759 P.2d at 1349. None of the allegations leveled by Plaintiff reach the extremely high threshold of extreme and outrageous conduct, entitling the Defendants to summary judgment on this claim as a matter of law. IV. PLAINTIFF'S STATE TORT CLAIMS AGAINST DEFENDANT EUBANK ARE BARRED BECAUSE NO CERTIFICATE OF REVIEW AS REQUIRED BY § 13-20602, C.R.S. 2001 WAS EVER SOUGHT OR PRODUCED BY PLAINTIFF Defendants rely on the argument presented in their Motion for Summary Judgment. CONCLUSION In conclusion, for all of the foregoing reasons, as well as those articulated in the Motion for

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Summary Judgment, Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya respectfully request this Court grant Defendants summary judgment and dismiss Plaintiff's claims against these Defendants in their entirety with prejudice, and for all other relief as this Court deems appropriate. Dated this 19th day of July 2006. Respectfully submitted,

s/ Edmund M. Kennedy Thomas J. Lyons, Esq. Edmund M. Kennedy Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 303-628-3368 (fax) [email protected] [email protected] ATTORNEYS FOR DEFENDANTS ILONA EUBANK, OFFICER ANAYA, and OFFICER WILKS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on this 19th day of July 2006, I electronically filed the foregoing DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Marcel Krzystek [email protected] [email protected] David Arthur Lane [email protected] [email protected] Mari Anne Newman [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: Vincent M. Garvey U.S. Department of Justice Civil Division, Federal Programs Branch 901 E Street, N.W. #946 Washington, DC 20530 Marsha Edney, Esq. U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave N.W., #7148 Washington, DC 20530 s/Leslie Grauberger, Legal Secretary to Thomas J. Lyons, Esq. Edmund M. Kennedy Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 303-628-3368 (fax) [email protected] [email protected] ATTORNEYS FOR DEFENDANTS ILONA

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EUBANK, OFFICER ANAYA, and OFFICER WILKS

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