Free Answer to Complaint - District Court of Colorado - Colorado

Case 1:04-cv-01841-EWN-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-N-1841 (CBS) SANDRA BAFIA, Plaintiff,

BOARD OF COUNTY COMMISSIONERS, WASHINGTON COUNTY, COLORADO in their official and individual capacities; BOARD OF COUNTY COMMISSIONERS, BOULDER COUNTY, COLORADO in their official and individual capacities; FORMER BOULDER COUNTY SHERIFF GEORGE EPP, in his official and individual capacity; Defendants.

BOULDER COUNTY DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
COME NOW the Defendants, Board of County Commissioners, Boulder County, Colorado and Former Boulder County Sheriff George Epp, in his individual capacity ("Boulder County Defendants"), by and through Andrew R. Macdonald, Assistant County Attorney, and hereby submit this Answer to Plaintiff's Complaint. As a preliminary matter, the Court issued its Order and Memorandum and Decision dated October 27,2005, denying the motion to dismiss filed by former Boulder County Sheriff George Epp in his iizdividual capacity and the Board of County Commissioners of the County of Boulder. The original answer was filed on behalf of former Sheriff Epp in his ofJicial capacity, this Answer is filed on behalf of former Sheriff Epp in his individual capacity and the Board of County Commissioners of the County of Boulder.

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INTRODUCTION
1. Complaint. Boulder County Defendants deny the allegations contained in paragraph 1 of the

JURISDICTION AND VENLTE
2.
Boulder County Defendants admit that this Court has jurisdiction, but deny there is a

basis for Plaintiff's claims as alleged in paragraph 2 of the Complaint.

3.

Boulder County Defendants admit that venue is proper as alleged in paragraph 3 of

the Complaint, and admit that Plaintiff is a resident of the State of Colorado.

PARTIES
4.

Boulder County Defendants are without sufficient information to either admit or deny

the allegations contained in paragraph 4 of the Complaint, and therefore deny same.
5.

Boulder County Defendants admit that the Board of County Commissioners of the

County of Boulder is a political subdivision of the state. Boulder County Defendants deny the remaining allegations contained in paragraph 5 of the Complaint.

6.
7.

Boulder County Defendants deny the allegations of paragraph 6 of the Complaint. Boulder County Defendants are without sufficient information to either admit or deny

the allegations contained in paragraph 7 of the Complaint, and therefore deny same.

8.

In response to paragraph 8 of the Complaint Boulder County Defendants admit that

Sheriff Epp was the duly elected sheriff of the County of Boulder at all pertinent times. Boulder County Defendants deny the remaining allegations contained in paragraph 8 of the Complaint not specifically admitted herein.

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FACTUAL BACKGROUND
9. Boulder County Defendants are without sufficient information to either admit or deny

the allegations contained in paragraphs 9, 10, 11, 12, and 13 of the Complaint, and therefore deny same. 10. Complaint. 11. Boulder County Defendants admit that Plaintiff received a medical screening by a Boulder County Defendants admit the allegations stated in paragraph 14 of the

nurse upon her intake into the Boulder County Jail. Boulder County Defendants deny the remaining allegations contained in paragraph 15 of the Complaint. 12. Complaint. 13. Boulder County Defendants deny the allegations contained in paragraph 17 of the Boulder County Defendants deny the allegations contained in paragraph 16 of the

Complaint to the extent they are inconsistent with the transcript of Plaintiff's October 8, 2002 disposition hearing before the Honorable Thomas Reed, Judge of the Boulder Municipal Court. 14. As to the allegations contained in Paragraph 18 of Plaintiff's Complaint, Boulder

County Defendants admit that Plaintiff was examined by Dr. Marilyn Dougherty, but affirmatively allege the date was October 29, 2002. Boulder County Defendants admit that Dr. Dougherty diagnosed Plaintiff with a detached retina. Boulder County defendants also admit that Dr. Dougherty referred Plaintiff to a specialist, Dr. William Benedict. Boulder County Defendants deny the remaining allegations contained in paragraph 18 of the Complaint.

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15.

As to the allegations contained in paragraph 19 of Plaintiff's Complaint, Boulder

County Defendants admit that Plaintiff was examined by Dr. William Benedict, but affirmatively allege the date of examination was October 30, 2002. Boulder County Defendants affirmatively allege that Dr. Benedict scheduled eye surgery for Plaintiff on November 11,2002. Boulder County Defendants deny the remaining allegations contained in paragraph 19 of the Complaint. 16. Boulder County Defendants deny the allegations contained in paragraph 20 of the

Complaint. Boulder County Defendants affirmatively allege that Plaintiff's eye surgery was scheduled by Dr. Benedict for November 11,2002. Boulder County Defendants further affirmatively allege that the Boulder County Jail nursing staff followed all pre-operative instructions from Dr. Benedict. 17. Boulder County Defendants deny the allegations contained in paragraph 21 of the

Complaint. Boulder County Defendants affirmatively allege as follows: that Plaintiff appeared in Court on November 7,2002 pursuant to her request; that Judge Archuleta granted Plaintiff's request for credit for time served in Washington County and ordered that Plaintiff be released by the jail on Sunday, November 10, 2002; and, that the Boulder County jail released Plaintiff on Sunday, November 10,2002 in compliance with the order issued by Judge Archuleta on November 7,2002. 18. Boulder County Defendants admit that Dr. Benedict performed the surgery on

Plaintiff on November 11,2002. Boulder County Defendants are without sufficient information to either admit or deny the remaining allegations contained in paragraph 22 of the Complaint and therefore deny same.

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19. Complaint.

Boulder County Defendants deny the allegations contained in paragraph 23 of the

FIRST CLAIM FOR RELIEF (3 1983 Eight and Fourteenth Amendment Violation Failure to Provide Medical Care and Treatment) (Against all Defendants)
20. In response to paragraph 24 of the Complaint, Boulder County Defendants hereby

incorporate by reference their responses to paragraphs 1 through 23 of the Complaint as though fully set forth herein. 21. Complaint. 22. The allegation stated in paragraph 26 of the Complaint states a legal conclusion. To Boulder County Defendants deny the allegations stated in paragraph 25 of the

the extent a response is deemed necessary, Boulder County Defendants admit that case law has held according]y . 23. Boulder County Defendants deny the allegations contained in paragraphs 27,28,29,

3 0 , 3 l , 32, 33 and 34 of the Complaint to the extent they are stated against them. Boulder County Defendants are without sufficient information to either admit or deny the allegations contained in paragraphs 27, 28,29,30, 31, 32, 33 and 34 of the Complaint regarding Washington County, and therefore deny same.

SECOND CLAIM FOR RELIEF ( Q1983 Eighth and Fourteenth Amendment Violation - Failure to Train and Supervise) (Against Defendants EPP[S] and ENGLISH)
24. In response to paragraph 35 of the Complaint, Boulder County Defendants hereby

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incorporate by reference their responses to paragraphs 1 through 34 of the Complaint as though fully set forth herein. 25. As to the allegations contained in Paragraph 36 of Plaintiff's Complaint, Boulder

County Defendants admit that the Sheriff shall have charge and custody of the jails in his county pursuant to C.R.S.

3 30-10-51 1. Boulder County Defendants deny the remaining allegations of

paragraph 36 of the Complaint not specifically admitted herein. 26. Boulder County Defendants deny the allegations contained in paragraphs 37,38,39,

40, 41, 42, 43 and 44 of the Complaint. Boulder County Defendants are without sufficient information to either admit or deny the allegations contained in paragraphs 37,38,39,40,41,42,43 and 44 of the Complaint regarding Sheriff English, and therefore deny same. 27. Boulder County Defendants deny all allegations contained in the Complaint not

specifically admitted herein.

AFFIRMATIVE DEFENSES First Defense
Plaintiff's Complaint fails to state a claim for which relief may be granted against these Defendants.

Second Defense
Plaintiff's claims do not give rise to subject matter jurisdiction in this court.

Third Defense
Plaintiff's claims are barred by the appropriate statute of limitations.

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Fourth Defense
Plaintiffs injuries and damages, if any, are the proximate result of her failure reasonably to mitigate her damages as required under Colorado law.

Fifth Defense
Plaintiffs injuries and damages, if any, are the proximate result of her own negligence or risk assumption which negligence is equal to or greater than any alleged negligence of this defendant and under the provisions of C.R.S. $ 13-21-111, precludes or comparatively diminishes Plaintiff's right to recover from these Defendants.

Sixth Defense
Plaintiff's claims are barred, or limited, pursuant to the common law privileges and immunities applicable to these defendants, including, but not limited to, official immunity, good faith, due diligence, legal duty and authorization to perform the acts which form the basis of Plaintiff's claims.

Seventh Defense
The claims of the plaintiff are barred or limited by operation of the provisions and requirements of the Colorado Governmental Immunity Act, C.R.S. $ 24-10-101, et seq., as amended.

Eighth Defense
Individually named defendants are entitled to qualified immunity from Plaintiff's $1983 claims, because their actions did not violate clearly established law.

Ninth Defense
Plaintiff's claim for punitive damages, apart from being frivolous and groundless, is subject

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to the provisions of C.R.S. 3 13-21-102, and C.R.S. 3 24-10- 114.

Tenth Defense
Plaintiff has failed to join indispensable parties to this action. Dr. Karl J. Schlegel was the treating physician during the time Plaintiff was incarcerated in the Boulder County Jail.

Eleventh Defense
Boulder County Defendants retain the right to assert additional defenses as they become known to the Defendants.

REOUEST FOR RELIEF
WHEREFORE, having fully answered Plaintiffs Complaint, Boulder County
Defendants request that the Court issue the following orders herein: An order dismissing Plaintiff's claims against the Boulder County Defendants A. with prejudice; B. claims: C. D. Award Boulder County Defendants their costs and attorneys fees; and Grant such other and further relief as the Court deems just and proper. An order entering judgment in favor of the Boulder County Defendants on these

Respectfully submitted this 3rd day of November, 2005. BOULDER COUNTY ATTORNEY

By: ISIAndrew R. Macdonald Andrew R. Macdonald Assistant County Attorney P.O. Box 471 Boulder, CO 80306 (303) 44 1-3190

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Address of Defendants: Board of County Commissioners Boulder County Colorado P.O. Box 471 Boulder, CO 80306 George Epp County Sheriffs of Colorado, Inc. 9008 N. US Hwy 85, Unit C Littleton, CO 80125-9915

CERTIFICATE OF SERVICE
I hereby certify that on November 3, 2005, I electronically filed the foregoing BOULDER COUNTY DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT via U.S. District Court electronic filing service, who will either serve the same via e-mail to the following:

Jonathan Ariel Cross jcross @crossliechty.com Marcel Krzystek [email protected] David Arthur Lane [email protected] Sean James Lane [email protected] Michelle Lee Lazar
michellellazar @ yahoo.com

IS1 Kathy G. Nelson Kathy G. Nelson