Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00093-ZLW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: JOSÉ D. RAMIREZ, Plaintiff, v. SERGEANT NEVINS, Unit 3, Defendants. 04-cv-93-ZLW-BNB

DEFENDANT NEVINS' MOTION FOR SUMMARY JUDGMENT

Defendant SERGEANT NEVINS, by and through his attorneys, CAIN & HAYTER, LLP, hereby files his Motion For Summary Judgment, pursuant to Fed. R. Civ. P. 56, and requests that all of Plaintiff's claims against him be dismissed with prejudice. I. STANDARD OF REVIEW In reviewing a motion for summary judgment, the court reviews the record in the light most favorable to the non-moving party. Sealock v. State of Colorado, 218 F.3d 1205, 1209, 10th Cir. 1994 (citation omitted). The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.ed. 2d 265 (1986). Page 1 of 13

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"Summary judgment procedure is properly regarded, not as a disfavored procedural shortcut, but, rather, as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action."Id., 477 U.S. at 327. In response to a motion for summary judgment, the burden shifts to the party opposing the motion to produce factual evidence, not mere allegations or argument, to show a triable issue of facts exists. Hall v. Bellmon, 935 F.2d 1106,111 (10th Cir. 1991). II. PLAINTIFF'S CLAIM Plaintiff Ramirez, an inmate with the Colorado Department of Corrections (CDOC) has filed a pro se Prisoner Complaint pursuant to 28 U.S.C. § 1343 (1993) and 42 U.S.C. § 1983 (Supp. 2002). The only remaining named Defendant in this case is Defendant Sergeant Nevins. All other previously named Defendants have been dismissed out of this case. See the Plaintiff's Amended Complaint, entered as filed on January 12, 2005. The Plaintiff's Amended Complaint states on the caption that Plaintiff is suing Defendant Nevins in his individual and official capacity. However on page 2 of the Amended Complaint, the Plaintiff states as follows: "Sgt. Nevine was acting under the color of State law, when the events challenged in this action occurred under the authority granted/vested to him by the Executive Director of the Colorado Dept. Of Corrections. See Title 17, Art. 1, of the Colorado Revised Statutes." It is therefore undisputed, by Plaintiff's own admission, that he is suing Defendant Nevins in his "official capacity."

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The claim against Defendant Nevins is a 42 U.S.C. §1983 claim for deliberate indifference to a serious medical need and Plaintiff claims that his Eight Amendment protections against cruel and unusual punishment have been violated. III. DEFENDANT'S AFFIRMATIVE DEFENSE OF QUALIFIED IMMUNITY In Defendant Sergeant Nevins' Answer to Amended Complaint filed on January 27, 2005, at page 3, Defendant asserts the affirmative defense of qualified immunity. Once a defendant raises the affirmative defense of qualified immunity, the burden then shifts to the Plainitff to prove facts that the defendant's actions violated a constitutional or statutory right. IV. FACTS Attached as Exhibit A to this motion, is the Affidavit of Defendant Sergeant Nevins. This Affidavit is based on Defendant Nevins' personal knowledge, it sets forth facts that would be admissible at time of trial, and it establishes Defendant Nevins' is competent to testify to such facts. Defendant Nevins' Affidavit attached as Exhibit A, meets all of the requirements of Fed.R.Civ.P. 56 (e), and it is proper evidence for this Court's consideration in ruling upon this motion. V. ARGUMENT Qualified Immunity Defendant Nevins is entitled to qualified immunity. In civil rights actions seeking damages from governmental officials, "those officials may raise the affirmative defense of qualified immunity, which protects `all but the plainly incompetent or those who knowingly violate the law.' " Page 3 of 13

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Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001), citing Gross v. Pirtle, 245 F.3d 1151,1155 (10th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The actions alleged in Plaintiff's Amended Complaint, occurred at Sterling Correctional Facility, a Colorado Department of Corrections (CDOC) facility, where Defendant Nevins was working in his capacity as a CDOC employee. The claim of qualified immunity presents a question of law; "the court cannot avoid the question by framing it as a factual issue." Dixon v. Richer, 922 F.@d 1456, 1460(10th Cir.(Colo. 1991), citing Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d at 646. A public official acting in his individual capacity is presumed to be immune from liability. Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990). "For executive officials in general, however, our cases make plain that qualified immunity represents the norm." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). In order to rebut the presumption of immunity, the plaintiff must prove that the defendant "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or [that] he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury...." Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (emphasis supplied by the court). State officials are shielded "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights which they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). "The purpose of qualified immunity is to allow public officers to

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carry out their duties as they think right, rather than acting out of fear for their own personal fortunes." Greiner v. City of Champlin, 27 F.3d 1346, 1351 (8 th Cir. 1994). An official performing discretionary functions will generally be immune from liability unless a reasonable person in his position would have known that his actions violated clearly established law. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The doctrine applies where reasonable officials in the same situation would have taken the same action, or where such officers could disagree on the appropriate course of action to follow. Id. at 336. Only if clearly established law removes all doubt as to how to proceed is immunity lost. "[I]f there is a legitimate question as to whether the more particularized constitutional right exists under the facts of the case, it cannot be said that the prison official's action violated clearly established law.' Brown v. Frey, 889 F. 2d 159, 165 (8 th Cir. 1989)(emphasis added). A mere allegation of malice is insufficient to "subject a defendant in a proceeding of this sort `to the costs of trial or to the burdens of broad reaching discovery.'" Hidahl v. Gilpin County Dep't of Social Services, 938 F.2d 1150, 1154 (10th Cir. 1991). [B]are allegations of malice should not suffice to subject Government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 at 817 and 818. Page 5 of 13

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A plaintiff must do more than assert bare allegations of a constitutional violation. The complaint must allege specific and nonconclusory facts which are sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law. The complaint must include "all the factual allegations necessary to sustain a conclusion that defendant violated clearly established law." Sawyer v. County of Creek, 908 F.2d 663 (10th Cir. 1990). The issue of qualified immunity should be considered at the earliest possible stage of litigation. Gorra v. Hanson, 880 F.2d 95,97 (8th Cir. 1989). Unless it is decided long before trial, much of the benefit of the rule will be lost. Greiner v. City of Champlin, 27 F.3d 1346, 1351-52 (8th Cir. 1994). "Not only does qualified immunity protect officials from liability, but it also should spare them the disruption and expense of trial in situations where they have acted reasonably." Id., 27 F.3d at 1351. "[T]he burdens of a trial and personal liability may not be imposed on a government official for the exercise of discretionary authority unless his conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992). In this case, Defendant Nevins is entitled to qualified immunity from a suit for damages. Plaintiff Ramirez has not alleged, and there is no competent evidence which would support a conclusion, that Defendant Nevins knew or should have known that any of his actions would violate Plaintiff's constitutional rights. Review of Defendant Nevins'

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Affidavit, Exhibit A, demonstrates that Defendant Nevins was attempting to verify that Plaintiff did in fact have a valid medical restriction. Defendant Nevins made attempts to verify that Plaintiff had a valid medical restriction by phoning medical staff. By his actions of attempting to verify a valid medical restriction, Defendant Nevins was not acting indifferent to the Plaintiff, and he was not ignoring his medical needs. He was acting in a reasonable manner in attempting to verify what the Plaintiff told him about his medical restriction. A reasonable person, in Defendant Nevins' position, would not know that an attempt to verify an inmate's medical restriction was in any way violating the inmate's constitutional rights. Burden of Proof has Shifted to the Plaintiff The burden of proof has shifted to the Plaintiff and in order to survive this motion, the Plaintiff must now convince the court that the law at the time of the alleged incident was clearly established. Where the affirmative defense of qualified immunity is properly raised, it is the plaintiff's burden to convince the court that the law is clearly established. A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue. Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984). Plaintiff's failure to do so, however, does not raise a jury question, but rather calls for entry of judgment in favor of the defendants who have plead the defense. Lutz v. Weld County School District No.6, 784 F.2d 340, 342 and 343. (10th Cir. Colo. 1986). Page 7 of 13

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If the Plaintiff cannot meet his burden of proof, then summary judgment should be granted to the Defendant. The claim of qualified immunity presents a question of law; "the court cannot avoid the question by framing it as a factual issue." Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d at 646. Dixon v. Richer, 922 F.2d 1456, 1460(10th Cir. Colo 1991). The Facts Do Not Support a Claim under 42 U.S.C.A. § 1983 The leading case involving an allegation of inadequate medical care or treatment is Estelle v. Gamble, 429 U.S. 97 (1976). In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). In Estelle, the Court held that "deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain,'.....prescribed by the Eight Amendment." Id. at 104. To state a cognizable Eighth Amendment claim, Plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Only such indifference that offends evolving standards of decency in violation of the Eighth Amendment states a cognizable claim. "Conduct which, at most, is medical malpractice...does not represent cruel and unusual punishment." Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996). This requires evidence showing

indifference, facts showing that the indifference is the result of deliberate action rather than negligence, and facts showing that the inmate's need is serious: Page 8 of 13

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The Eighth Amendment's deliberate indifference standard under Estelle has two components: an objective component requiring that the pain or deprivation be sufficiently serious; and a subject component requiring that the offending officials act with a sufficiently culpable state of mind. Handy v. Price, 996 F.2d 1064, 1067 (10th Cir. 1993). In the present case, there is no factual allegation that would show that any failure to provide care was the result of deliberate indifference, rather than mere negligence (if it can even be consider as such). "Deliberate indifference" means more than inadvertent failure to provide medical care. Daniels v. Gilbreath, 668 F.2d 477, 482 (10th Cir. 1982). "It is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Claims, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Whitley v. Albers, 475 U.S. 312, 319 at 319 (1986). The conduct must be deliberate in the sense of "criminal recklessness". Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Plaintiff must show that the Defendant knew of and deliberately disregarded a substantial risk of serious harm to the Plaintiff's health or safety. Id. at 837. Mere negligent conduct (which, by definition, is unreasonable conduct) is insufficient to create a cause of action under 42 U.S.C.A. § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Bryson v. City of Edmond, 905 F.2d 1386 (10th Cir. 1990). Deliberate indifference is a "stringent standard of fault" which requires more than a showing of "simple or even heightened negligence". Giron v.Corrections Corp. of America, 191 F.3d 1281, 1285-86 (10th Cir. 1999). Page 9 of 13

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Therefore, even assuming that Defendant Nevins' conduct was negligent, that would not establish deliberate indifference to serious medical needs of a prisoner. The failure to perceive a risk to the inmate is not cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825 (1994). Defendant Nevins only had the representations made by the Plaintiff, which were not expressed to the Defendant until after the Plaintiff had been assigned a top bunk. Defendant Nevins was not provided a copy of any medical restriction from the Plaintiff, see Exhibit A at paragraph 7. Defendant Nevins made calls to the medical department in order to verify any alleged medical restriction. Defendant Nevins is not a medical employee and cannot make decisions about any alleged medical restrictions. His actions of calling medical staff to attempt to verify any medical restrictions was a reasonable action on his part and clearly was not "indifferent" to the Plaintiff's medical needs. There are no facts that support the Plaintiff's allegation that at the time of the

alleged incident that Defendant Nevins knew his actions exposed the Plaintiff to a substantial risk of serious harm and that he consciously disregarded that risk by failing to take reasonable measures to correct the problem. Allegations of mere negligence are not cognizable in any § 1983 claim, regardless of the theory or clause of the Constitution used to justify the complaint. Daniels v. Williams, 474 U.S. 327, 334-36 (1986); Bryson v. City of Edmond, 905 F.2d 1386, 1390-92 (10th Cir. 1990). "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause." Whitley v. Albers, 475 U.S. 312 at 319 (1986).

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Similarly, a mere allegation of malice is insufficient to "subject a defendant in a proceeding of this sort `to the costs of trial or to the burdens of broad-reaching discovery." Harlow v. Fitzgerald, 457 U.S. 800 at 817-18(1982). Defendant Nevins' actions were objectively reasonable in light of the clearly established law. In Pennington v. Taylor, 343 F. Supp.2d 508 (4th Cir. 2004), a very similar factual situation arose. The inmate was assigned an initial bunk premised on availability and compatibility in the absence of a recommendation from medical or security. See Id. at 510. In Pennington, the Court held that the officer did not know of substantial risk of serious harm to prisoner posed by his assignment to a top bunk and that the officer was not "indifferent" to the prisoner's claim that his safety would be jeopardized by being placed in a top bunk. Id. at 512 ans 514. In Whitley v. Lewis, 844 F.Supp. 276 (4 th Cir. 1994), the Court also found an inmate's compliant alleging a 42 U.S.C.A. § 1983 action due to improper medical treatment for seizures did not rise to the level of deliberate indifference to the inmate's medical condition. Although these are not 10th Circuit decisions, they may be helpful in this case. There are no facts that support Plaintiff's request for punitive damages The Plaintiff has listed punitive damages in Section G. Request For Relief of his Amended Complaint. The facts of this case do not warrant such a claim. A punitive damage claim may be resolved by motion, if there are not sufficient facts to demonstrate the requisite knowledge or callous indifference. See Crot v. Byrne, 957 F.2d 394, 395 (7 th Cir. 1992); Crymes v. Dekalb County, Georgia, 923 F.2d 1482, 1484 (11th Cir. 1991).

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The request for punitive damages should be dismissed. There are no facts that support Plaintiff's request for injunctive relief or declaratory relief Although a plaintiff who has been injured may recover damages, he may not alos obtain injunctive relief, unless he can demonstrate a strong possibility that he will be injured again in the future. Facio v. Jones, 929 F.2d 541, 544 (10th Cir. 1991). See also Harris v. Champion, 51 F.3d 901, 905 (10th Cir. 1995). Past injury does not, by itself, establish a real and immediate threat of harm in the future. Without such a finding, injunctive relief is not possible. Adarand Constructors Inc. V. Pena, 115 S. Ct. 2097 (1995). This is also true for requests for declaratory relief. VI. CONCLUSION Defendant Nevins is entitled to qualified immunity and Plaintiff's Amended Complaint should be dismissed with prejudice. Plaintiff cannot prove a cause of action against Defendant Nevins' under 42 U.S.C.A. § 1983, thus Plaintiff's Amended Complaint should be dismissed with prejudice. There are no facts to support the relief requested: punitive damages, injunctive relief, and declaratory relief. These requested forms of relief should be stricken from the Amended Complaint. WHEREFORE Defendant Nevins prays for that the Court grant this Motion for Summary Judgment, that the Court rule that Defendant Nevins is entitled to qualified immunity, that the Plaintiff's Amended Complaint does not state a cause of action against

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this Defendant under 42 U.S. C.A. § 1983, and that Plaintiff's Amended Complaint should be dismissed with prejudice. Respectfully submitted this 22nd day of July, 2005. Duly signed original is on file at the office of CAIN & HAYTER, LLP /s/ Kristine K. Hayter Kristine K. Hayter, No. 30357 CAIN & HAYTER, LLP 128 South Tejon, Suite 100 Colorado Springs, Colorado 80903 Telephone: (719) 575-0010 Email: [email protected] Attorney for Defendant Nevins

CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of July, 2005, a true and correct copy of the foregoing DEFENDANT NEVINS' MOTION FOR SUMMARY JUDGMENT was placed in the United States Mail, postage prepaid and addressed to the following: Mr. José D. Ramirez, No. 52124 Limon Correctional Facility 49030 State Highway 71 Limon, Colorado 80826

/s/ Kristi Holtzberg Kristi Holtzberg, Paralegal

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