Free 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 Number: 00-cv-2555-JLK-BNB PAMELA CLIFTON, Plaintiff, v. NURSE IONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants. PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Plaintiff, Pamela Clifton, by and through counsel, David A. Lane, Mari Newman, and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, responds to Defendants' Motion for Summary Judgment, filed April 15, 2002, as follows: BACKGROUND AND RELEVANT PROCEDURAL HISTORY On December 22, 2000, Plaintiff filed her Complaint against Defendants and asserted claims for violations of the Eight and Fourteenth Amendments, Retaliation, Failure to Train and Negligent Supervision (Defendant McGarry), and a state law claim for Intentional Infliction of Emotional Distress and Outrageous Conduct. On April 15, 2002, Defendants filed a motion seeking summary judgment of all of Plaintiff's claims. Defendant McGarry was dismissed from this case upon stipulation of the parties and this Court's Order dated May 1, 2002.

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On August 8, 2002, Plaintiff responded to Defendants' Motion for Summary Judgment by filing Plaintiff's Motion to Recognize the Constitutional and Human Rights of Prison Inmates. In that response, Plaintiff challenged the constitutionality of the physical injury requirement of the PLRA and sought an extension of time in which to respond to the remaining issues in Defendants' motion for summary judgment. Plaintiff also specifically reserved the right to assert that 1) she had suffered a physical injury within the meaning of the PLRA; 2) the PLRA did not apply to her claims; and/or 3) a lack of physical injury does not mandate the dismissal of her claims, but rather impacted the remedies available to her. On March 8, 2006, this Court entered its Memorandum Opinion and Order, in which it ruled that, "delayed labor, resulting in stillbirth, constitutes physical injury to the mother sufficient to satisfy the PLRA's physical injury requirement, and, furthermore, regardless of the presence or absence of physical injury, the PLRA does not bar the constitutional claims of a woman who alleges improper medical care resulted in the death and stillbirth of her fetus." Memorandum Opinion and Order [68] at 5. On March 17, 2006, Defendants filed Defendants' Motion for Reconsideration of this Court's March 8, 2006, Order. In the motion seeking reconsideration, the Defendants asked this Court to require briefing on all of the issues raised in Defendants' motion for summary judgment, as only issues related to the PLRA were addressed in the March 8, 2006 Memorandum Opinion and Order. On April 5, 2006, this Court entered an Order on Defendants' motion for reconsideration, granting such motion to the extent "that other summary judgment issues remain pending." The Order specifically states that Plaintiff's response need not encompass arguments regarding her

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claim for punitive damages as "[t]he record, quite clearly, is sufficient to submit a request for punitive damages to a jury if Plaintiff's liability claims otherwise survive summary judgment." On June 9, 2006 Plaintiff filed an unopposed motion to dismiss her retaliation claim, which was granted by this Court on June 12, 2006. Plaintiff files this Response to address the unresolved issues raised in Defendants' Motion for Summary Judgment. Specifically, Plaintiff briefs the following issues in the Parts below: her standing to litigate the constitutional claims; Defendants' assertion of qualified immunity; Plaintiff's Intentional Infliction of Emotional Distress or Outrageous Conduct claim; and Defendants' incorrect assertion that a Certificate of Review pursuant to C.R.S. § 13-20-602 is a necessary prerequisite to pursuit of Plaintiff's state tort claims against Eubank.1 RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS 1. 2. 3. 4. 5. 6. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted that Ms. Clifton was taken to the facility clinic at approximately 6:30

p.m. on December 25, 1998. Ms. Clifton was taken to the facility after another officer obtained a pass for her. (Exhibit 1, Clifton Depo., 15:31:20 ­ 32:2)

Part VI (beginning on page 35) of Defendants' motion for summary judgment argues that Ms. Clifton cannot recover the burial costs of her unborn fetus. Because Plaintiff does not seek to recover any such costs, she does not address this argument in this response.

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7.

Denied. The record citation does not support the assertion that Ms. Clifton's

contractions were "irregular," but that "they weren't as close as they had been earlier." (Exhibit 1, Clifton Depo., 32:12 ­ 20) 8. Admitted that Eubank found no amniotic fluid and instructed Ms. Clifton to return

to her housing unit. (Exhibit 1, Clifton Depo., 32:24 ­ 33:5) 9. 10. Admitted. Admitted that Ms. Clifton was "not unwilling" to approach staff about her needs.

(Exhibit 1, Clifton Depo., 142:12 ­ 15) 11. 12. Admitted. After being denied medical care by Wilks and Anaya, Ms. Clifton believed that

nobody at the facility would assist her. (Exhibit 12, Clifton Affidavit, ¶ 2) 13. Denied. Approximately 30 minutes elapsed between Ms. Clifton's request for

assistance and Eubank's arrival. (Exhibit 1, Clifton Depo., 64:23 ­ 65:6) 14. Denied that Eubank provided "prompt attention" to Ms. Clifton; Approximately

30 minutes elapsed between Ms. Clifton's request for assistance and Eubank's arrival. (Exhibit 1, Clifton Depo., 64:23 ­ 65:6) Admitted that Ms. Clifton was then transported to the hospital. 15. 16. 17. 18. 19. 20. 21. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted.

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22. 23. 24. 25. 26. 27. retaliation. 28. 29.

Admitted. Admitted. Admitted. Admitted. Admitted. Admitted that Ms. Clifton suffered no loss of privileges as a result of Wilks'

Admitted. Admitted that Eubank examined Ms. Clifton to determine if there was any

amniotic fluid and touched her stomach to feel the contractions. (Exhibit 1, Clifton Depo., 122:5 ­ 13) 30. Denied. Plaintiff also testified that she suffered "physical damages . . . damages

to myself. . . . Damages to my daughter." (Exhibit 1, Clifton Depo., 66:13 ­ 19) 31. 32. 33. Admitted. Admitted. This assertion is a legal conclusion and not an appropriate statement of fact. STATEMENT OF ADDITIONAL DISPUTED FACTS 1. When Ms. Clifton went into labor shortly before 11:00 a.m. on Christmas day of

1998, she told Defendant Anaya, a guard, that she was in labor, that her contractions were "three or four minutes apart," and that she needed medical help. (Exhibit 1, Clifton Depo., 16:18 ­ 18:15) 2. In response, Defendant Anaya refused to summon medical help and told Ms.

Clifton to go back to her unit. (Exhibit 1, Clifton Depo., 16:24 ­ 17:3) Anaya also told Ms.

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Clifton to go back to her unit, as there were "plenty of women down there that know how to birth babies." (Exhibit 1, Clifton Depo., 17:4 ­ 7) 3. Defendant Anaya clearly understood that if a pregnant inmate requested medical

assistance, she was required by DOC policy to send the inmate to the medical clinic. (Exhibit 4, Anaya Depo., 10:14 - 20; 16:11 ­ 14) 4. Anaya further admitted that it is an "obvious serious medical need" if an inmate

were to tell her that she going into labor and needed help. (Exhibit 4, Anaya Depo., 17:3 ­ 7) 5. Defendant Anaya testified that, if an inmate came to an officer seeking medical

help because she was going into labor, it would be an inappropriate response pursuant to DOC policy for the officer to send the inmate back to her unit, "because there are plenty of women back there who know about birthing babies." (Exhibit 4, Anaya Depo., 26:20 ­ 27:8) 6. Anaya remained totally unresponsive to Ms. Clifton's serious medical needs for

the duration of her shift, instead playing video games with another officer. (Exhibit 1, Clifton Depo., 165:3 ­ 5) 7. Ms. Clifton also told Defendant Wilks that she was having labor pains and

contractions. (Exhibit 1, Clifton Depo., 18:23 ­ 19:7) Wilks' response was to tell Ms. Clifton that it was "count time,"2 that there was nothing she could do, and that Ms. Clifton could "go to the bathroom." Id. 8. Defendant Wilks also understood her obligation to address the serious medical

needs of inmates, testifying that "[i]f there is an emergency, you notify the medical staff, if you're aware of the emergency." (Exhibit 5, Wilks Depo., 6:23 ­ 25) When asked specifically
"Count time" is a period during which all inmates are required to return to their living quarters in order to enable DOC staff to perform a head count. Inmates cannot leave their cells until the count is complete. (Exhibit 1, Clifton Depo., 19:18 ­ 25)
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what she would do if an inmate told her that she was in labor and needed immediate medical assistance, Wilks responded that she would "[c]all medical and send her down to medical." (Exhibit 5, Wilks Depo., 40:13 - 18; 45:3 ­ 14) 9. According to numerous witnesses, Ms. Clifton was visibly in distress. (Exhibit 2,

Taylor Depo., 6:20 ­ 7:2; 9:19 ­ 10:2; Exhibit 4, Anaya Depo., 14:10 ("I thought she looked pale..."); 29:5 - 6 ("she physically looked sick, and I knew she was pregnant").) 10. Inmates at the Women's Correctional Facility in Canon City are strictly

prohibited from going to the medical clinic without prior authorization from an officer. (Exhibit 5, Wilks Depo., 40:19 ­ 42:11; Exhibit 4, Anaya Depo., 10:21 ­ 11:1; Exhibit 2, Taylor Depo., 10:9 ­ 22) 11. During the relevant time period there was a posting on the door threatening that

any inmate who even knocked on the medical facility door would be disciplined. (Exhibit 6, Yacklich Depo. 9:6 ­ 10) 12. According to Defendant Wilks, it would be logical for an inmate having a medical

emergency to have "any officer, sergeant, lieutenant, any staff member working there" to call medical. (Exhibit 5, Wilks Depo., 48:11 ­ 17) 13. After being denied care by both Anaya and Wilks, Ms. Clifton believed that

nobody would assist her. (Exhibit 12, Clifton Affidavit, ¶ 2) 14. After she returned to her cell, Ms. Clifton was alone in her cell and in pain.

(Exhibit 12, Clifton Affidavit, ¶ 6) She continued to experience contractions, which began to weaken. Id. Ms. Clifton's memory of the 5 and a half hour window between 1:00 p.m. and 6:30 p.m. is a "blur" because of the pain she was experiencing. Id.

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15.

At 5:30 p.m., another inmate checked on Ms. Clifton. (Exhibit 1, Clifton Depo.,

29:1 ­ 6) That inmate told Ms. Clifton that she did not "look good" and needed to get to a doctor. Id. That inmate contacted an officer, who then contacted the office and gave Ms. Clifton "a pass to medical."3 (Exhibit 1, Clifton Depo., 30:7 ­ 32:2) 16. Ms. Clifton did not go to dinner that day because she was in a great deal of pain

and was not hungry. (Exhibit 12, Clifton Affidavit, ¶ 7) 17. At 6:30 p.m., after a full day of agonizing labor with no medical assistance at all,

Ms. Clifton finally made it to medical where she met with Defendant Eubank, a DOC nurse. (Exhibit 1, Clifton Depo., 32:12 ­ 14) 18. Unfortunately for Ms. Clifton, she would not receive the help she needed.

Eubank also told Ms. Clifton that she did not know how to use the fetal heart monitor because her experience was with postnatal, not prenatal, women. (Exhibit 1, Clifton Depo., 32:15 ­ 33:7) 19. 20. After examining Ms. Clifton, Eubank told her that saw no amniotic fluid. Id. Ms. Clifton specifically advised Eubank that she would not see amniotic fluid

because she had given birth twice before, and it had been her experience that her water never breaks. Id. 21. Further, because she saw no amniotic fluid, she was "not going to bother anybody

at the hospital by sending [Ms. Clifton] on a false alarm." Id. As Wilks and Anaya had done many hours prior, Eubank sent Ms. Clifton back to her unit. Id. 22. Defendant nurse Eubank testified that, pursuant to DOC policy, if a woman goes

into labor, she must be transported to the hospital. (Exhibit 7, Eubank Dep., 20:24 ­ 21:13; 22:7 ­ 21)
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Inmates were not allowed to visit medical without prior authorization. (Exhibit 1, Clifton Depo., 31:8 ­ 16)

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23.

Defendant Eubank further admitted that had Ms. Clifton been in labor, she should

have been sent to the hospital. (Exhibit 7, Eubank Depo., 50:22 ­ 51:2) 24. Eubank denied that she had ever treated Ms. Clifton while Ms. Clifton was in

labor. (Exhibit 7, Eubank Depo., 12:7 ­ 17) 25. When shown her own notes from the evening of December 25, 1998, stating,

"Clifton in for possible labor pains, infrequent", Eubank admitted that it was indeed her handwriting, and her notations of patient contacts, including Ms. Clifton, from December 25, 1998. (Exhibit 7, Eubank Depo., 34:19 ­ 35:24) 26. Nevertheless, Eubank persisted in denying that she had any reason to believe that

Ms. Clifton was in labor. (Exhibit 7, Eubank Depo., 41:20 ­ 42:4; 51:18 ­ 23) ("From what I'm reading here, she was not in labor.") 27. At approximately 8:00 p.m., Ms. Clifton was discharged by Eubank from medical,

and she went back to her cell where she fluctuated between sleep and worry. (Exhibit 1, Clifton Depo., 46:7 ­ 18) She experienced more pain and suffering, and she laid in her cell experiencing weakening contractions. (Exhibit 12, Clifton Affidavit, ¶ 10) 28. Ordinarily, the kicking of Ms. Clifton's baby would awake her at 7:00 a.m.

(Exhibit 1, Clifton Depo., 47:5 ­ 19) On the morning of the 26th of December, however, Ms. Clifton awoke at approximately 8:30 a.m. and felt nothing from her baby. Id. 29. At approximately 8:00 p.m. on December 26, Ms. Clifton saw Eubank in the

hallway and advised her that she had felt no movement from her baby and that she was worried. (Exhibit 1, Clifton Depo., 49:2 - 8) 30. Eubank again told Ms. Clifton to return to her unit, and told her to have the unit

officer contact her. (Exhibit 1, Clifton Depo., 49:9 - 11) Eubanks then contacted Ms. Clifton

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approximately thirty minutes later and told her that she would call the physician's assistant. (Exhibit 1, Clifton Depo., 50:3 - 12) 31. Upon arrival, the physician's assistant could not hear the baby's heartbeat and had

Ms. Clifton rushed to St. Thomas More hospital. (Exhibit 1, Clifton Depo., 64:23 ­ 65:16) 32. At the hospital, Ms. Clifton's baby was stillborn, and Dr. Sindler would later tell

Ms. Clifton that her baby had tied the cord in a knot while attempting to get out. (Exhibit 1, Clifton Depo., 78:10 ­ 16) 33. A DOC supervisor told Ms. Clifton, while she was still at the hospital, that DOC

was not going to pay for the burial of her dead baby. (Exhibit 1, Clifton Depo., 142:21 ­ 143:10) 34. After learning that her baby had died, Ms. Clifton was nevertheless returned to the

Women's Correctional facility at approximately midnight on December 26, 1998. (Exhibit 12, Clifton Affidavit, ¶ 11) 35. After spending four to six hours in her unit, Ms. Clifton was again returned to the

hospital in the early morning hours of December 27. (Exhibit 12, Clifton Affidavit, ¶ 12) 36. Hospital staff induced Ms. Clifton into labor at approximately 2:00 p.m. on

December 27. (Exhibit 12, Clifton Affidavit, ¶ 13) The chemically induced labor was very difficult, and Ms. Clifton gave birth to her stillborn child shortly after midnight. Id. 37. Ms. Clifton was returned to the Women's Correctional Facility on the Morning of

December 29. (Exhibit 12, Clifton Affidavit, ¶ 15) 38. Prior to the stillbirth, Ms. Clifton's pregnancy had been monitored on a monthly

basis by Dr. Sindler, who examined Ms. Clifton as late as December 21, 1998. (Exhibit 1, Clifton Depo., 34:20 ­ 36:4)

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39.

As of December 21, 1998, Dr. Sindler stated that Ms. Clifton's baby was fine and

that the pregnancy was progressing normally. (Exhibit 1, Clifton Depo., 35:3 - 9) 40. On Christmas day, Ms. Clifton was eight months pregnant. (Exhibit 1, Clifton

Depo., 36:5 - 7) ARGUMENT Under the circumstances, the actions of the Defendants are clearly actionable under 42 U.S.C. §1983 as being violative of Pamela Clifton's civil rights under the Eighth and Fourteenth Amendments. Finally, Ms. Clifton has presented sufficient evidence to allow a jury to consider her claim of Outrageous Conduct/Intentional Infliction of Emotional Distress against all Defendants for their truly shocking and outrageous treatment of her. I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if the admissible evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In both reviewing the evidence for disputed issues of material facts and applying applicable law, this Court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Thomas v. International Business Machines, 48 P.3d 478, 484 (10th Cir. 1995). A dispute over a material fact is "genuine" if a rational jury could find in favor of the nonmoving party on the evidence presented. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1189 (10th Cir. 2000), and "[t]he burden of showing that no genuine issue of material facts exists is borne by the moving party." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). "This court draws all reasonable inferences in favor of the nonmoving party." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1189.

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"The nonmovant is given `wide berth to prove a factual controversy exists," Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002), citing Jeffries v. Kansas, Dep't of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir. 1998), and only when the moving party meets its initial burden does the burden of producing evidence of a disputed issue of material fact shift to the nonmoving party. Id. The court is not permitted to weigh the evidence, but instead determines "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993); Jeffries v. State of Kansas, Dept. of Social and Rehab. Services, 147 F. 3d at 1228. II. MS. CLIFTON HAS STANDING TO LITIGATE HER CLAIMS UNDER 42 U.S.C. § 1983

Defendants argue that "the only injury Plaintff alleges is that related to a stillbirth," and that she "alleges nothing to indicate a Defendant caused her physical harm." Because Plaintiff can vindicate only her own constitutional rights, and not those of her unborn child, Defendants argue, Ms. Clifton's constitutional claims must be dismissed. This argument is inextricably related to Defendants' theory that Ms. Clifton suffered no "physical injury" under the PLRA. As this Court's Memorandum Opinion and Order [68] makes clear, Defendants' argument is without merit. In dispensing with Defendants' assertion that the physical injury requirement of the PLRA barred Ms. Clifton's claim, this Court made clear that Ms. Clifton's prolonged labor, which resulted in the death of her otherwise viable fetus, constitutes an actionable injury by Ms. Clifton: The physical injuries, including prolonged labor and the death of her otherwise viable fetus, that Plaintiff in the instant case alleges

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she experienced as a result of the deprivation of her constitutional rights, far surpasses the de minimis physical injuries of headaches, insomnia, and stomach anxiety alleged by the Cannon [v. Burkybile, 2000 U.S. Dist. LEXIS 14139 (N.D. Ill. Sept. 21 2000)] plaintiff. They are dramatically, emphatically different from a bruised ear or delayed medical treatment that resulted in no discernible physical effects. Unlike the Jones [v. Sheahan, 2000 U.S. Dist. LEXIS 14130 (N.D. Ill. Sept. 22, 2000)] plaintiff, who alleged no physical injuries as a result of the delayed surgery for his tumors, and the Leon [v. Johnson, 96 F. Supp. 2d 244 (W.D.N.Y. 2000)] plaintiff, who alleged no adverse physical health effects resulting from the delayed receipt of medication for his HIV/AIDS, Plaintiff in this case alleges the delay and insufficiency of the medical treatment she received resulted in prolonged labor and the death of her fetus. Indeed, in all of the cited cases where courts found the physical injury to be de minimis, the plaintiffs failed to allege they endured any lasting, detrimental physical effects, whereas in the case at hand, Plaintiff alleges the prolonged labor she endured resulted in the death of her fetus. The tangible, physical effects in the matter at hand are undeniable, and, accordingly, should provide a sufficient basis for a cognizable claim, the PLRA notwithstanding. Memorandum Opinion and Order [68], at 10 ­ 11. This Court also noted the obvious similarities between the stillbirth suffered by Ms. Clifton and the miscarriage suffered by the plaintiff in Pool v. Sebastian County, 418 F.3d 934 (8th Cir. 2005), where defendant unsuccessfully advanced essentially the same argument that Eubank, Wilks, and Anaya advance here. There, the Eighth Circuit concluded that whether the miscarriage constituted physical injury to the mother was a fact question related to damages or causation. This Court also relied upon Burgess v. Superior Court, 831 P.2d 1197 (Cal. 1992), which recognized, in the context of a mother and her fetus, the impossibility of physically injuring one but not the other. For these reasons, and for those which are well-articulated in this Court's Memorandum Opinion and Order and need not be repeated here, Ms. Clifton has suffered a cognizable and legally actionable injury for which she has standing to litigate.

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III.

DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY FROM MS. CLIFTON'S 42 U.S.C. § 1983 CLAIMS

The United States Supreme Court has recognized the tension between providing an important remedy for individuals injured by governmental officials' abuse of authority and subjecting such officials to the difficulties of litigation. See Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 814, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In order to balance these competing interests, courts recognize the affirmative defense of qualified immunity, which protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). The Defendants in this case fall squarely in that category. If a defendant asserts a qualified immunity defense, a two-part burden shifts to the plaintiff. See Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995); Albright v. Rodriquez, 51 F.3d 1531, 1534 (10th Cir. 1995). First, the plaintiff must establish "that the defendant's actions violated a constitutional or statutory right." Albright, 51 F.3d at 1534; see also Wilson v. Layne, 526 U.S. 603, 609, 143 L. Ed. 2d 818, 119 S. Ct. 1692 (1999) (noting the court must first decide whether the plaintiff has alleged deprivation of a constitutional right). Second, the plaintiff must demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct. Albright, 51 F.3d at 1534. In determining whether the right was "clearly established," the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether "the right [was] sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Wilson v. Layne, 526 U.S. at 615 (internal quotation marks omitted).

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If the plaintiff successfully establishes the violation of a clearly established right, the burden shifts to the defendant, who must prove "that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law." Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir. 1993). Further, as is the standard for summary judgment generally, all evidence must be viewed in the light most favorable to the nonmoving party. See Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir. 2000). Finally, it is unnecessary for Ms. Clifton to produce a factually identical case from the United States Supreme Court or the Tenth Circuit in order to defeat Defendants' assertion of a qualified immunity defense. As the Supreme Court has held, [F]or a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), citing Mitchell v. Forsyth, 472 U.S. 511, 535, 86 L.Ed.2d 411, 105 S.Ct. 2806, n.12. In Hope, the Supreme Court pointed out that it had upheld convictions for criminal civil rights violations under 18 U.S.C. §§ 241 and 242 "despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Hope at 740. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances," and any requirement that previous cases be "factually similar" was "expressly rejected." Hope at 741, citing United States v. Lanier, 520 U.S. 259 (1997). Because Defendants had more than ample notice that denying treatment to a woman in labor was unconstitutional, their motion seeking summary judgment on the basis of qualified immunity must be denied.

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A.

Fourteenth Amendment

Ms. Clifton asserts no independent Fourteenth Amendment substantive due process claim. Her claim is brought pursuant to the cruel and unusual punishment clause of the Eighth Amendment, which is incorporated into the Fourteenth Amendment. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1320 (10th Cir. 2002) ("I will first address the Fourth Amendment claim and then the Eighth Amendment claim. (To be precise, both claims are under the Fourteenth Amendment, which imposes on the states the substance of the Fourth and Eighth Amendments.)") (Hartz, J., dissenting, citing Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-34, 149 L. Ed. 2d 674, 121 S. Ct. 1678 (2001)). B. Eighth Amendment

The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. Amend. XIII. "The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, `[proscribes] more than physically barbarous punishments.' . . . It prohibits penalties that are grossly disproportionate to the offense, . . . as well as those that transgress today's `broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (internal citations omitted). The United States Supreme Court's seminal decision in Estelle v. Gamble, 429 U.S. 97 (1976), sets forth as governing rule of law the "deliberate indifference" standard for civil rights claims involving medical needs and treatment of prisoners. Following the reasoning of such cases as Trop v. Dulles, 356 U.S. 86 (1958), and Gregg v. Georgia, 428 U.S. 153 (1976), the Court held as repugnant punishments incompatible with the "evolving standards of decency that mark the progress of a maturing society" or that involve the "unnecessary and wanton infliction of pain."

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Estelle, supra at 102-103. The case went on to cite as deliberate indifference: (a) denial of medical care; (b) interference with treatment already prescribed; or (c) delaying care (a lack of response to a prisoner's medical needs). Estelle, 429 U.S. at 104-105. The Court's decision in Deshaney v. Winnebago Dept. of Social Services, 489 U.S. 189, 199-200 (1989), as cited in Helling v. McKinney, 509 U.S. 25, 30-31 (1993), has perhaps most succinctly set forth the purpose behind such reasoning: When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs ­ e.g., food, clothing, shelter, medical care, and reasonable safety ­ it transgresses the substantive limits on state action set by the Eighth Amendment. . . . More recent cases have detailed this standard as having both objective and subjective elements. First, there must exist a serious medical need known to the prison official; second, the official must disregard that risk by failing to take reasonable measures to abate it (must be "deliberately" indifferent to it). Farmer v. Brennan, 511 U.S. 825, 832-852 (1994). It is against this background that Defendants' claims of qualified immunity must be considered, and as set forth below, the case at hand clearly meets this standard. "A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Martinez v. Garden, 430 F.3d 1302 (10th Cir. 2005), citing Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment when a prison official denies,

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delays, or intentionally interferes with prescribed medical treatment. Jackson v. MacIntosh, 90 F.3d. 330 (9th Cir. 1996), cert. denied, 519 U.S. 1029. Such includes both acts and omissions, including a lack of response/delay in responding to a detainee's medical needs. Haitian Centers Council, Inc. v. Sale, 823 F. Supp 1028 (E.D.N.Y. 1993). A delay in providing medical care or treatment constitutes an Eighth Amendment violation if it results in substantial harm. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). Further, an official's failure to consider an inmate's complaints may satisfy this requirement, Lewis v. Angelone, 926 F. Supp. 69 (W.D. Va. 1996), as does a guard's intentional delay in providing access to medical treatment. Estate of Frank v. City of Beaver Dam, 921 F. Supp. 590 (E.D. Wis. 1996). Federal courts have consistently held that a delay in medical care to a pregnant inmate meets the legal standard established by Estelle v. Gamble. See, e.g., Archer v. Dutcher, 733 F.2d 14, 16 (2nd Cir. 1984) (holding that a pregnant inmate who miscarried stated a cognizable claim where she alleged that defendants intentionally delayed emergency medical aid); Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997); see also Boswell v. County of Sherburne, 849 F.2d 1117 (8th Cir. 1988) (pregnant pretrial detainee stated cognizable claim under § 1983 from which defendants were not entitled to qualified immunity where medical treatment was delayed); Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981) (upholding a § 1983 damage award based, in part, on delay of medical treatment to a pregnant woman by arresting officer, which resulted in the stillbirth of her child), disapproved on other grounds, Canton v. Harris, 489 U.S. 378 (1989); Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986). It is difficult to imagine a more obvious serious medical need than an observably pregnant woman stating that she is in labor. If, for some reason, that did not provide sufficient notice to the Defendants that Ms. Clifton was in serious need of medical attention, Ms. Clifton

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specifically told Defendants Anaya, Wilks and Eubank that she was in labor and in need of immediate medical care. See Exhibit 1, Clifton Depo., 18:25 ­ 19:5; 17:1 - 7; 32:16 ­ 33:5; Exhibit 2, Taylor Depo., 7:25 ­ 8:11; Exhibit 3, Mickey Depo., 9:2 ­ 14. Furthermore, according to numerous witnesses, Ms. Clifton was visibly in distress. Exhibit 2, Taylor Depo., 6:20 ­ 7:2; 9:19 ­ 10:2; Exhibit 4, Anaya Depo., 14:10 ("I thought she looked pale..."); 29:5 - 6 ("she physically looked sick, and I knew she was pregnant"). 1. Anaya

The facts clearly and overwhelmingly demonstrate a deliberate disregard of the obvious serious medical needs of Pamela Clifton sufficient to amount to a violation of her Eighth Amendment rights. Inmates at the Women's Correctional Facility in Canon City are strictly prohibited from going to the medical clinic without prior authorization from an officer. Exhibit 5, Wilks Depo., 40:19 ­ 42:11; Exhibit 4, Anaya Depo., 10:21 ­ 11:1; Exhibit 2, Taylor Depo., 10:9 ­ 22. In fact, during the relevant time period there was a posting on the door threatening that any inmate who even knocked on the door would be disciplined. Exhibit 6, Yacklich Depo. 9:6 - 10. According to Defendant Wilks, it would be logical for an inmate having a medical emergency to have "any officer, sergeant, lieutenant, any staff member working there" to call medical. Exhibit 5, Wilks Depo., 48:11 - 17. Defendants' assertion that Anaya somehow satisfied her legal burden by allowing Ms. Clifton ­ who had told Anaya that she was in labor ­ to go to the bathroom is truly astounding. Defendant Anaya clearly understood that if a pregnant inmate requested medical assistance, she was required by DOC policy to send the inmate to the medical clinic. Exhibit 4, Anaya Depo., 10:14 - 20; 16:11 - 14. Anaya further admitted that it is an "obvious serious medical need" if an

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inmate were to tell her that she going into labor and needed help. Exhibit 4, Anaya Depo., 17:3 7. Yet, as Ms. Clifton testified at her deposition, December 25th at count time, which was about 10:50 in the morning, and I had my second contraction. And I said, Miss Anaya, I'm in labor; I'm having labor pains, contractions. And she said, well, it's count time. There's nothing I can do. You can go to the bathroom. Exhibit 1, Clifton Depo., 18:25 ­ 19:5; 167:5 - 8. Ms. Clifton's testimony was corroborated by that of her neighbor who overheard the conversation between Ms. Clifton and Anaya. Exhibit 2, Taylor Depo., 7:25 ­ 8:11; 12:2 - 6. Yet, despite Ms. Clifton's pleas and Defendant Anaya's understanding of her obligation to send an inmate with a serious medical need to the clinic, Defendant Anaya remained totally unresponsive to Ms. Clifton's serious medical needs for the duration of her shift, instead playing video games with another officer. Exhibit 1, Clifton Depo., 165:3 - 5. 2. Wilks

Defendant Wilks also understood her obligation to address the serious medical needs of inmates: "If there is an emergency, you notify the medical staff, if you're aware of the emergency." Exhibit 5, Wilks Depo., 6:23 - 25. When asked more specifically what she would do if an inmate told her that she was in labor and needed immediate medical assistance, Wilks responded that she would "[c]all medical and send her down to medical." Exhibit 5, Wilks Depo., 40:13 - 18; 45:3 - 14. However, Ms. Clifton went to Defendant Wilks when she was working in the master control booth, and, I stopped and told her that I was in labor and my contractions were three or four minutes apart and that I needed -- she said, Go back to your unit. And I said, Ms. Wilks, I'm in labor. And she said, I told you to go back to you unit; there's plenty of women down there who know how to birth babies. Get back to you unit.

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Exhibit 1, Clifton Depo., 17:1 - 7; 163:13 ­ 164:2. Ms. Clifton's testimony was corroborated by other women who overheard the conversation between Ms. Clifton and Defendant Wilks. Exhibit 2, Taylor Depo., 13:1 - 18; Exhibit 3, Mickey Depo., 9:2 - 14; 61:25 ­ 63:12. Defendant Anaya testified at her deposition that, if an inmate came to an officer seeking medical help because she was going into labor, it would be an inappropriate response pursuant to DOC policy for the officer to send the inmate back to her unit, "because there are plenty of women back there who know about birthing babies." Exhibit 4, Anaya Depo., 26:20 ­ 27:8. Defendant Wilks' own testimony does not convincingly refute Ms. Clifton's allegations. When asked whether she recalled Ms. Clifton coming to her for help, Wilks testified, "[t]he recollection was that I was busy in master control at that given time. And to recall the conversation or any parts of the conversation is at the point that - I was busy at that time, and she -- she was - I recall her waking out of the chow hall, and - where there were several officers to assist her and more immediate - in her immediate need, wherever they might have been." Exhibit 5, Wilks Depo., 38:23 ­ 39:6. Yet, Wilks did not tell Ms. Clifton to go speak to another officer. Exhibit 5, Wilks Depo., 48:1 - 10. 3. Eubank

Defendant nurse Eubank testified at her deposition that, pursuant to DOC policy, if a woman goes into labor, she must be transported to the hospital. Exhibit 7, Eubank Dep., 20:24 ­ 21:13; 22:7 - 21. Nonetheless, when Ms. Clifton finally was allowed to go to medical and was seen by Defendant Eubank: Miss Eubank asked me what was going on and I told her I was in labor and I was having contractions although they weren't as close as they had been earlier, and so she asked me to get up on the table. I got up on the table, and she said, I don't see any amniotic

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fluid. And I said, you won't see any amniotic fluid. My water never breaks. I always have to have it broken. And she said, Well, I don't know how to work a fetal heart monitor because most of my experience with women is postnatal, not prenatal. And since I don't see any amniotic fluid, I'm not going to bother anybody at the hospital by sending you on a false alarm. I'm going to send you back to your unit instead. Exhibit 1, Clifton Depo., 32:16 ­ 33:5; 118:25 ­ 122:21; 160:15 - 21; Exhibit 2, Taylor Depo., 17:3 - 9. Defendant Eubank's deposition testimony refuting this was hardly convincing. First, Eubank unequivocally denied that she had ever treated Ms. Clifton while Ms. Clifton was in labor. Exhibit 7, Eubank Depo., 12:7 - 17. When shown her own notes from the evening of December 25, 1998, stating, "Clifton in for possible labor pains, infrequent", Eubank was forced to admit that it was indeed her handwriting, and her notations of patient contacts, including Ms. Clifton, from December 25, 1998. Exhibit 7, Eubank Depo., 34:19 ­ 35:24. Unbelievably, Defendant Eubank persisted - in the face of her own notation that she had assessed Ms. Clifton for "possible labor pains" - to deny that she had any reason to believe that Ms. Clifton was in labor. Exhibit 7, Eubank Depo., 41:20 ­ 42:4; 51:18 - 23 ("From what I'm reading here, she was not in labor.") Defendant Eubank further admitted that had Ms. Clifton been in labor, she should have been sent to the hospital. Exhibit 7, Eubank Depo., 50:22 ­ 51:2. Yet, as all parties admit, Ms. Clifton was not sent to the hospital until the following day, after her baby was dead. The Defendants' actions and, perhaps more appropriately, inactions with respect to Ms. Clifton were evaluated by Dr. Reid Alan Goodman, a preeminent local gynecologist. According to Dr. Goodman, under the circumstances of this case, Defendants Anaya's and Wilks' failure to send Ms. Clifton to the medical clinic when she told them she was in labor and asked to go to medical constituted deliberate indifference to the obvious serious medical needs of Ms. Clifton.

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Exhibit 8, Goodman Depo., 85:18 ­ 86:2. Moreover, Dr. Goodman concluded, based on his review of the depositions and medical records, that Defendant Nurse Eubank failed to listen to the fetal heart tones when Ms. Clifton was treated by her on December 25, 1998, and that he considered Defendant Eubank's failure to do so to be deliberate indifference to the obvious, serious medical needs of Ms. Clifton and her baby. Exhibit 8, Goodman Depo., 86:3 - 11. In light of the deposition testimony that Defendant Eubank did not know how to use the fetal heart monitor, Dr. Goodman concluded that Defendant Eubank's failure to seek assistance from someone who did know how to use the monitor constituted further deliberate indifference to the obvious, serious medical needs of Ms. Clifton and her baby. Exhibit 8, Goodman Depo., 88:1 14. Dr. Goodman further concluded that, based on Defendant Nurse Eubank's statement that she could not evaluate whether or not Ms. Clifton was in labor, Defendant Eubank's failure to call in a physician to do the evaluation was deliberate indifference to Ms. Clifton's obvious serious medical needs. Exhibit 8, Goodman Depo., 86:18 - 25. In addition, Dr. Goodman concluded that, based on the medical records and depositions this case, Defendant Eubank was deliberately indifferent to Ms. Clifton's obvious serious medical needs in her failure to examine Ms. Clifton's cervix when Ms. Clifton had told her that she was in labor. Exhibit 8, Goodman Depo., 87:1 14. In sum, Dr. Goodman concluded that, in his expert opinion, Defendant Nurse Eubank's failure to go through these various steps to determine whether or not Ms. Clifton was in labor constituted deliberate indifference to the obvious, serious medical needs of Ms. Clifton and her baby. Exhibit 8, Goodman Depo., 88:15 ­ 89:3.

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IV.

MS. CLIFTON'S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS/OUTRAGEOUS CONDUCT MUST BE HEARD BY A JURY

In Rugg v. McCarty, 476 P.2d 753 (Colo. 1970), the Colorado Supreme Court held that to sustain a claim of outrageous conduct, the conduct in question must substantially offend community notions of acceptable conduct. See also Grandchamp v. United Airlines, Inc., 854 F.2d 381, 383 (10th Cir. 1988), cert. denied, 489 U.S. 1080 (1989). The elements of outrageous conduct are: (1) the defendant engaged in extreme and outrageous conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional distress; and (3) causing the plaintiff severe emotional distress. Archer v. Farmer Bros., 70 P.3d 495 (Colo. App. Ct.), aff'd 90 P.3d 228 (Colo. 2004). Although the jury must decide the ultimate question of whether the conduct in questions was outrageous, the court must first determine whether reasonable people could differ on the issue. Simmons v. Prudential Ins. Co., 641 F. Supp. 675, 683 (D. Colo. 1986). If reasonable persons could differ on the outrageousness issue, the claim should go to the jury. See Bithell v. Western Care Corp., 762 P.2d 708, 714 (Colo. App. 1988), citing Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292 (Colo. App. 1982). There can be no doubt that reasonable jurors could conclude that Defendants' conduct toward Ms. Clifton was extreme, outrageous, and went beyond all possible bounds of decency. Although outrageous conduct claims are very fact specific, the facts in this case are not so unique as to require analysis in a vacuum. In Seitz v. Humana of Kentucky, Inc., 1988 Ky. App. LEXIS 164 (Ky. App. 1998) (attached hereto as Exhibit 9), plaintiff brought a claim for intentional infliction of emotional distress and outrageous conduct as a result of conduct by doctors and nursing staff that resulted in the death of her fetus. There, plaintiff was admitted into a hospital as a result of complications with her pregnancy. She had experienced two prior miscarriages and

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was considered a high risk case. After the premature rupture of her membranes, she began to experience pain and discomfort. Several times that evening and through the night she rang her intercom buzzer complaining to the nurses of her pain. Plaintiff alleged that the nursing staff intentionally deactivated her "buzzer," allegations that were supported by the testimony of her roommate. Plaintff had been checked at one point and it was determined that her cervix had not dilated and therefore was not in danger of a premature delivery at that time. The next day, plaintiff continued to experience pain and discomfort culminating in the spontaneous delivery of a stillborn fetus into her bedpan with the assistance of her roommate. A nurse arrived after the stillbirth, who told plaintiff to "shut up" as she was disturbing other patients. The court held that the facts, as alleged, were sufficient to bring plaintiff's claims for outrageous conduct and intentional infliction of emotional distress to a jury. In Wilson v. H.C.A. S. Hills Medical Ctr., 1993 Tenn. App. LEXIS 374 (Tenn. App. 1993) (attached hereto as Exhibit 10), plaintiff brought claims for intentional infliction of emotional distress and outrageous conduct as a result of defendant's conduct after she suffered the loss of her fetus. Plaintiff was admitted to the medical center where she underwent a hysterotomy to remove the body of her deceased infant after an ultrasound (prior to her admission) revealed no fetal heart tones. After the stillbirth, plaintiff received certain documents from defendant, including a "Certificate of Birth," which indicated the birth weight and length of the infant and displayed his footprints, and a "crib card," stating "I' a boy!", and once again m providing the infant's weight and length and also his head and chest measurements. Defendant claimed that the materials were produced in order to facilitate the grieving process. The court, however, found as follows: "Reviewing the evidence in the light most favorable to [plaintiff], the record would show that she received the aforementioned documents . . . without the benefit

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of counseling. We find these facts sufficient to support [plaintiff's] claim for intentional infliction of emotional distress by means of outrageous conduct and conclude that the disputed facts [whether or not plaintiff received counseling] are material." Seitz and Wilson are far more analogous to Ms. Clifton's case that those cited by Defendants.4 Here, as in Seitz, Defendants' abject refusal to attend to the pleas of a woman in labor caused the death of an otherwise viable fetus. Notably, the intentional infliction of emotional distress and outrageous conduct claims in Wilson survived summary judgment notwithstanding the fact that defendants, unlike Defendants in this case, in no way contributed to the stillbirth; such claims were predicated simply on the insensitive treatment plaintiff endured after the death had already occurred. Notably, neither Seitz nor Wilson included any allegation of "assault, battery, unconsented touching, or otherwise directly invad[ing] the Plaintiff's personal space" as Defendants suggest the law would require. See Defendants motion for summary judgment, p. 34. And, like Wilson, Ms. Clifton was treated in an exceedingly insensitive manner after the death of her baby; a DOC supervisor told Ms. Clifton, while she was still at the hospital, that DOC was not going to pay for the burial of her dead baby. (Exhibit 1, Clifton Depo., 142:21 ­ 143:10) Viewed in the light most favorable to Ms. Clifton, the facts of this case clearly meet the threshold burden of establishing that a reasonable jury could differ on the outrageousness issue. Here, Defendants ignored the repeated pleas of a woman who was eight months pregnant, in labor, and requesting medical assistance. Defendant's motion seeking summary judgment on Ms. Clifton's intentional infliction of emotional distress and outrageous conduct claim must be denied.
4

Indeed, Defendants' treatment of Ms. Clifton is much more egregious than that in the cases cited by Defendants.

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V.

MS. CLIFTON IS NOT LEGALLY REQUIRED TO PROVIDE A CERTIFICATE OF REVIEW IN SUPPORT OF HER CLAIMS

The filing of a certificate of review is not jurisdictional; rather, a court has discretion to determine if a certificate of review is required. See Miller v. Rowtech, LLC, 3 P.3d 492 (Colo. App. 2000). As a preliminary matter, Defendant's motion for summary judgment incorrectly asserts that "any suit against a medical professional" requires filing of a certificate of review. Plaintiff's outrageous conduct claim requires no such proof. Defendants grossly overstate the circumstances in which a certificate of review pursuant to C.R.S. § 13-20-602 must be filed when asserting claims against licensed medical professionals. The relevant provision provides as follows: 13-20-602. Actions against licensed professionals acupuncturists - certificate of review required. and

(1) (a) In every action for damages or indemnity based upon the alleged professional negligence of an acupuncturist regulated pursuant to article 29.5 of title 12, C.R.S., or a licensed professional, the plaintiff' or complainant' attorney shall file with s s the court a certificate of review for each acupuncturist or licensed professional named as a party, as specified in subsection (3) of this section, within sixty days after the service of the complaint, counterclaim, or cross claim against such person unless the court determines that a longer period is necessary for good cause shown. (emphasis added). As the text of the statute makes clear, a certificate of review is required in actions for damages against licensed professionals when based on alleged professional negligence. Ms. Clifton has not asserted a claim against Eubank based on professional negligence; this is not a medical malpractice action. Instead, Ms. Clifton has brought a constitutional claim against Defendant Eubank for Eubank's deliberate indifference to Ms. Clifton's serious medical need in violation of the Eighth Amendment. Because a claim under the Eighth Amendment requires that a prisoner establish behavior rising to the level of a

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constitutional claim, as opposed to mere professional negligence, a plaintiff is not required to file a certificate of review in order to maintain a federal constitutional claim. SeeMcLean v. Clough, 2005 U.S. Dist. LEXIS 41310, *19-20 (D. Colo. September 30, 2005) (attached hereto as Exhibit 11), adopted by McLean v. Clough, 2006 U.S. Dist. LEXIS 14348 (D. Colo. Mar. 9, 2006). Ms. Clifton's state law cause of action against Eubank is intentional infliction of emotional distress and outrageous conduct. No certificate of review is required. "`Outrageous conduct'" is defined as conduct that is `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877 (Colo. 1994) (citations omitted). By definition, therefore, an outrageous conduct claim is established by demonstrating a violation of "community" standards and not those with professional qualifications or expertise in the relevant field of practice. It is well established that C.R.S. § 1320-602 requires the filing of a certificate of review "only to professional negligence claims that require[] expert testimony to establish a prima facie case." Martinez v. Badis, 842 P.2d 245, 249-51 (Colo. 1992). Because no expert testimony is necessary to establish a prima facie case of outrageous conduct, no certificate of review need be filed with respect to such claim. VI. CONCLUSION

WHEREFORE, Plaintiff respectfully requests that the Court deny Defendants' Motion for Summary Judgment. Respectfully submitted this 19th day of June, 2006. KILLMER, LANE & NEWMAN, LLP s/ Marcel Krzystek ____________________________ David A. Lane

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Mari Newman Marcel Krzystek The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on June 19th, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
· ·

Thomas J. Lyons [email protected]; [email protected];[email protected] Edmund Martin Kennedy [email protected] [email protected];[email protected]

and I hereby certify that I have mailed or served the document or paper to the following participants in the manner (mail, hand-delivery, etc.) 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 Pamela Clifton 1550 S York St. Denver, CO 80210-2817 s/ Marcel Krzystek ________________________________

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