Free Answer to Complaint - District Court of Colorado - Colorado

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action 03-cv-00236-LTB-KLM YU KIKUMURA, Plaintiff, v. ANTHONY OSAGIE, MICHAEL VAIL, KEITH SANDERS, and UNITED STATES OF AMERICA, Defendants.

DEFENDANTS' ANSWER

Defendants, through their undersigned counsel, submit the following as their joint answer to Plaintiff's Amended Complaint: A. Parties 1. Defendants admit that at the times relevant to the incidents at issue in this

action, Plaintiff was an inmate at ADX Florence. Defendants clarify that Plaintiff was released from the custody of the Bureau of Prisons on April 18, 2007. 2. Admit. Defendants clarify that Anthony Osagie is a Physician's Assistant at

ADX Florence. 3. Admit. Defendants clarify that at the times relevant to this suit, Michael

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 2 of 15

Vail was employed as a correctional officer at ADX Florence; he is no longer employed at ADX Florence but is still an employee of the Bureau of Prisons. 4. Admit. Defendants clarify that at the times relevant to this suit, Keith

Sanders was employed as a correctional officer at ADX Florence, and he is still employed with the Bureau of Prisons in Florence, Colorado. 5-9. The remaining defendants listed as "Parties" have been dismissed from this

suit, and Defendants submit that no answer to the allegations is necessary. If an answer is deemed necessary, Defendants admit that the individuals named in paragraphs 5-8 were employees of the Bureau of Prisons at the times relevant to this Complaint. B. Jurisdiction 1. With respect to Plaintiff's assertions of jurisdiction and venue, these are not

allegations of fact, and Defendants submit that no response is necessary. If a response is required, Defendants admit that the Court can exercise jurisdiction over all properly pleaded Bivens and tort claims and that venue is appropriate in this Court. C. Nature of the Case 1-2. Paragraphs 1 and 2 of this section appear to be a summary of the legal basis

of Plaintiff's claims rather than allegations of fact, and Defendants submit that no response is necessary. If a response is required, Defendants deny.

2

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 3 of 15

D. Cause of Action Claim One 1. Defendants admit that on July 5, 2002, Plaintiff was incarcerated at the

Administrative Maximum Penitentiary in Florence, Colorado in F Unit, Cell 102L. a. (1-8) With respect to these allegations, Defendants admit that on the above date, Plaintiff claimed he was suffering abdominal pain and nausea after consuming milk; that he requested assistance; that the correctional officers in the unit summoned health services staff; that Mr. Osagie responded to the call; that Plaintiff was taken to an examination room in the unit by Mr. Vail and Mr. Sanders; that Mr. Osagie recorded his examination of Plaintiff in his medical records; that based on the symptoms presented, Mr. Osagie determined that Plaintiff was suffering from lactose intolerance and advised him to drink fluids; and that Plaintiff was then returned to his cell. With respect to the remainder of the allegations, which largely relate to Plaintiff's description of his own actions and his sensations and symptoms, Defendants lack sufficient knowledge at this stage of the action to admit or deny the factual allegations, and therefore deny. b. (9-29) With respect to these allegations, Defendants admit that on the afternoon of July 5, 2002, Plaintiff was returned to his cell following his examination by Mr. Osagie in F unit's examination room; that at approximately 7:35 p.m., Plaintiff was taken to the institution's Health Services Department for further treatment; that Mr. Osagie's notes are

3

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 4 of 15

recorded in the Plaintiff's medical records; that the Clinical Director, Dr. Lawrence Leyba, was called by Mr. Osagie; that Dr. Leyba arrived at the institution and assumed care of Plaintiff. With respect to the remainder of the allegations, which largely relate to Plaintiff's description of his own actions and his sensations and symptoms, Defendants lack sufficient knowledge at this stage of the action to admit or deny the factual allegations, and therefore deny. c. (30 - 34) These allegations appear to be not factual in nature, but are conclusions of law and Plaintiff's characterization of his foregoing version of events as wrongdoing. An answer thus is not deemed necessary. If an answer is deemed necessary, Defendants deny these allegations and all wrongdoing. Claim 2 (1-5) Defendants admit that Plaintiff was incarcerated at ADX Florence on July 5, 2002. Defendants also admit that Dr. Leyba arrived at the ADX Medical Department on the evening of July 5, 2002. The remaining allegations appear to be not factual in nature, but conclusions of law and Plaintiff's characterization of his foregoing version of events as wrongdoing. An answer thus is not deemed necessary. If an answer is deemed necessary, Defendants deny these allegations and all wrongdoing. Claim 3 (1-6) Defendants admit that Plaintiff was incarcerated at ADX Florence on July 5,

4

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 5 of 15

2002, that Mr. Osagie provided medical treatment to Plaintiff on that date; that Dr. Leyba was called by Mr. Osagie; and that when Dr. Leyba arrived in the Medical Unit at ADX Florence, he provided treatment. The remaining allegations appear to be not factual in nature, but conclusions of law and Plaintiff's characterization of his foregoing version of events as wrongdoing. An answer thus is not deemed necessary. If an answer is deemed necessary, Defendants deny these allegations and all wrongdoing. Claim 4 (1-5) Defendants admit that Plaintiff was incarcerated at ADX Florence on July 5, 2002; that at approximately 1530 hours, Plaintiff was examined by Mr. Osagie; and that Plaintiff was removed from his unit and taken to the Health Services Medical Unit at approximately 1935 hours. Several of the remaining allegations relate to Plaintiff's own sensations and conduct. Defendants lack sufficient knowledge at this stage in the action to admit or deny these allegations, and therefore deny. The remaining allegations appear to be not factual in nature, but conclusions of law and Plaintiff's characterization of his foregoing version of events as wrongdoing by Mr. Osagie. An answer thus is not deemed necessary. If an answer is deemed necessary, Defendants deny these allegations and all wrongdoing. Claim 5 (1-5) Defendants admit that on July 5, 2002, Mr. Sanders and Mr. Vail were

5

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 6 of 15

working in F Unit between 1530 and 1935 hours, and that at approximately 1530 hours, they assisted in transferring Plaintiff from the health unit to his cell. Several of the remaining allegations relate to Plaintiff's own sensations and conduct; Defendants lack sufficient knowledge at this stage in the action to admit or deny these allegations, and therefore deny. The remaining allegations appear to be not factual in nature, but conclusions of law and Plaintiff's characterizations of his foregoing version of events as wrongdoing by Messrs. Sanders and Vail. An answer thus is not deemed necessary. If an answer is deemed necessary, Defendants deny these allegations and all wrongdoing. Claim 6 Because Claim 6 has already been dismissed in its entirety, and that dismissal has been affirmed, an answer is not deemed necessary to that claim. To the extent an answer is deemed necessary, Defendants deny. Claim 7 a. Plaintiff's assertions regarding the extent of a duty of care is legal rather than factual in nature, and thus an answer is not deemed required. To the extent an answer is required, Defendants deny. b. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Defendants breached a duty of care. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To

6

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 7 of 15

the extent an answer is required, Defendants deny. c. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Plaintiff suffered a legally cognizable injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. d. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that wrongdoing by Defendants was a legal cause of Plaintiff's injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. Claim 8 a. Plaintiff's assertions regarding the extent of a duty of care is legal rather than factual in nature, and thus an answer is not deemed required. To the extent an answer is required, Defendants deny. b. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Defendants breached a duty of care. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. c. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Plaintiff suffered a legally cognizable injury.

7

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 8 of 15

Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. d. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that wrongdoing by Defendants was a legal cause of Plaintiff's injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. Claim 9 a. Plaintiff's assertions regarding the extent of a duty of care is legal rather than factual in nature, and thus an answer is not deemed required. To the extent an answer is required, Defendants deny. b. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Defendants breached a duty of care. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. c. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Plaintiff suffered a legally cognizable injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. d. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that

8

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 9 of 15

the facts he previously alleged show that wrongdoing by Defendants was a legal cause of Plaintiff's injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. Claim 10 Because Claim 10 has already been dismissed in its entirety, and that dismissal has been affirmed, an answer is not deemed necessary to that claim. To the extent an answer is deemed necessary, Defendants deny. Claim 11 a. (1-4) In this paragraph, Plaintiff appears not to allege any new facts, but to argue that the facts he previously alleged show that wrongdoing by Defendants was a legal wrong. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. b. (1-7) Defendants admit that on July 5, 2002, Plaintiff complained of abdominal cramps and nausea; that Plaintiff was treated by Mr. Osagie, and that Plaintiff vomited. Several of the remaining allegations relate to Plaintiff's own sensations and conduct; Defendants lack sufficient knowledge at this stage in the action to admit or deny these allegations, and therefore deny. The remaining allegations appear to be not factual in nature, but conclusions of law and Plaintiff's characterization of his foregoing version of events as wrongdoing. An answer thus is not deemed necessary. If an answer is deemed

9

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 10 of 15

necessary, Defendants deny these allegations and all wrongdoing. Claim 12 Defendants admit that Plaintiff was incarcerated at ADX Florence on July 5, 2002; that Plaintiff was evaluated by Mr. Osagie at approximately 1530 hours; that Plaintiff was sent back to his cell; and that Plaintiff was again taken to the Health Services Medical Unit at approximately 1935 hours on July 5, 2002. a. Plaintiff's assertions regarding the extent of a duty of care is legal rather than factual in nature, and thus an answer is not deemed required. To the extent an answer is required, Defendants deny. b. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Defendants breached a duty of care. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. c. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that Plaintiff suffered a legally cognizable injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. d. In this paragraph, Plaintiff appears not to allege any new facts, but to assert that the facts he previously alleged show that wrongdoing by Defendants was a legal cause of

10

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 11 of 15

Plaintiff's injury. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. Claim 13 In this paragraph, Plaintiff asserts that the facts he previously alleged show that a legal wrong (outrageous conduct) has occurred, but Plaintiff does not appear to allege any additional facts besides those alleged earlier. Because this allegation is legal rather than factual in nature, an answer is not deemed required. To the extent an answer is required, Defendants deny. E. Previous Lawsuits Defendants admit, but add that they have insufficient knowledge at this stage of the action to know all of the details of the lawsuits listed. As to action 97-cv-00052-JPG in the United States District Court for the Southern District of Illinois, Defendants clarify that the judgment was entered in favor of Plaintiff for $144.95. F. Administrative Relief Defendants note that they previously asserted lack of exhaustion, but since then, the United States Court of Appeals for the Tenth Circuit has adjudicated the exhaustion of Plaintiff's claims as asserted before that court. Defendants submit that to the extent that the claims may vary from those expressly addressed in the Tenth Circuit's opinion, Defendants may continue to assert that such claims were not exhausted.

11

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 12 of 15

G. Claim for Relief This section sets forth Plaintiff's legal arguments and a request for relief, not any allegations of facts. To the extent a response is needed, Defendants deny. H. Demand for Jury Trial This section sets forth Plaintiff's request for a jury trial. To the extent a response is needed, Defendants deny; Defendants note that no jury trial is available against the United States under the Federal Tort Claims Act. To the extent that the Complaint contains factual allegations other than those addressed above, Defendants deny, and also reserve the right to amend their answer to address any such allegations or to add defenses supported by the facts. DEFENSES 1. To the extent that Plaintiff's claims may vary from those expressly

addressed in the Tenth Circuit's opinion, Defendants may continue to assert that such claims were not exhausted. 2. Defendant continue to assert that the claims fail to state a claim upon which

relief can be granted. 3. If Plaintiff prevails on his Federal Tort Claims Act claims, his Bivens

claims will be barred by 28 U.S.C. § 2679(b)(1). 4. Defendants (other than the United States) are entitled to qualified immunity.

12

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 13 of 15

5.

With respect to the tort claims, Plaintiff has not yet filed a certificate of

review, as required by Colorado law. 6. With respect to the tort claims, Plaintiff's claim against the United States is

subject to and limited by the Federal Tort Claims Act, and also by various provisions of Colorado law, which include (but are not limited to) the applicable provisions of Colorado's Health Care Availability Act, C.R.S. § 13-64-101, et seq., and the provisions of C.R.S. 13-21-102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, and 13-21-111. 7. With respect to damages, Defendants assert that Plaintiff is not entitled to

the damages he seeks, that Defendants are entitled to a credit or set-off for any past or future benefits paid to or on behalf of or received by Plaintiff to the extent allowed under federal and state common and statutory law. 8. Plaintiff's damages were a result of his conduct to a sufficient degree as to

bar, or limit, his recovery. 9. Plaintiff may be barred from recovery because he consented to actions that

form the basis for the claims. 10. If Plaintiff is to be awarded any future damages, to which Defendants deny

he is entitled, such damages must be reduced to present value. 11. Plaintiff's claim may be barred in whole or part by his failure to mitigate his

damages, if any.

13

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 14 of 15

12. 13. known risk.

Plaintiff's damages may be the proximate result of a pre-existing condition. Plaintiff may be barred from recovery because he voluntarily assumed a

Dated this 18th day of April, 2008.

Respectfully submitted, TROY A. EID United States Attorney s/ Kevin T. Traskos KEVIN T. TRASKOS Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Phone: 303-454-0100 Fax: 303-454-0407 Email: [email protected] Attorney for Defendants

14

Case 1:03-cv-00236-LTB-KLM

Document 160

Filed 04/18/2008

Page 15 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 18, 2008, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail address: Richard L. Gabriel [email protected] Amy Bauer [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Theresa Montoya, Senior Litigation Counsel Federal Correctional Complex, Legal Division 5880 Highway 67 South Florence, CO 81226

s/ Kevin T. Traskos KEVIN T. TRASKOS

15