Free Reply in Support of Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Nicole T. McGuire, Bar #024864 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Robertson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Kim Michael Cook, Plaintiff, v. Dr. Robertson, et al, Defendants. DEFENDANT ROBERTSON'S REPLY IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT NO. CIV 03-1100 PHX-ROS (VAM)

Defendant Robertson, through counsel, submits this Reply in Support of his Motion for Summary Judgment. This Court should grant summary judgment for Defendant Robertson because: (1) Plaintiff failed to show that Defendant Robertson was deliberately indifferent to a serious medical need; (2) Plaintiff failed to show that he sustained an injury as a result of an alleged delay in receiving a C-PAP machine; (3) Plaintiff showed only a disagreement with Dr. Robertson's treatment decisions regarding Plaintiff's symptoms; (4) Plaintiff relied on inadmissible evidence to defeat Defendant Robertson's Motion for Summary Judgment; and (5) Plaintiff failed to exhaust the administrative remedies available to him.

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I.

ARGUMENT A. Plaintiff Failed to Demonstrate Deliberate Indifference to a Serious Need There is no evidence that Dr. Robertson acted with deliberate indifference to

a serious medical need. To prove an actionable violation under the Eighth Amendment based for inadequate medical care, an inmate must present facts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.1 To constitute deliberate indifference, the alleged conduct must be such that it is "repugnant to the conscious of mankind" or "incompatible with the `evolving standards' of progress in a maturing society."2 Specifically, an inmate must prove that the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed; and (2) he must also have drawn the inference.3 The serious medical need must be one that "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain."4 Therefore, liability cannot be imposed unless the inmate's medical need was "objectively, sufficiently serious," and the failure to treat that medical condition constituted the "denial of the minimal civilized measure of life's necessities."5 1. Plaintiff's allegations against Robertson do not amount to deliberate indifference.

In his Response, Plaintiff asserted mere allegations regarding the type of treatment he should have received. Specifically, Plaintiff complained that Robertson's actions in requesting various tests to determine the existence and potential causes of his sleep apnea condition led to a delay in receiving a C-PAP machine.6 Plaintiff also asserted in his Response that Dr. Robertson ignored the first sleep study and kept
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See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Id. at 102, 105. See Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.nd See Chance v. Armstrong, 143 F.3d 698, 702 (2 Cir. 1998). Farmer, 511 U.S. at 837, 114 S.Ct. at 1977. See Plaintiff's Response, at pp. 10, 12.
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prescribed treatment by Dr. Quan from him, which "is proof of Robertson deliberately interfering with treatment once prescribed." reasons. First, Plaintiff provided no evidentiary support for these allegations. To defeat summary judgment, Plaintiff had the burden to present sufficient, competent,
admissible evidence8 showing that (1) Dr. Robertson was aware of facts from which the
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Plaintiffs claims, however, fail for three

inference could be drawn that a substantial risk of serious harm existed; and (2) he drew the inference.9 Plaintiff failed to submit admissible evidence satisfying this test. He did not submit any evidence that Dr. Robertson knew that a substantial risk of serious harm to Plaintiff existed if there was a delay in Plaintiff receiving a C-PAP machine. Instead, Plaintiff asserted only allegations. Such allegations are insufficient to defeat summary judgment.10 Second, as outlined in Defendant Robertson's Motion for Summary Judgment, in exploring the underlying causes of Plaintiff's symptoms and the various treatment options for Plaintiff, Dr. Robertson reviewed Plaintiff's blood work, requested information regarding Plaintiff's weight, and requested a pulmonary specialist to determine if Plaintiff's symptoms were related respiratory disease.11 After ruling out alternative causes for Plaintiff's symptoms, Plaintiff underwent a second sleep study and received a C-PAP machine.12 These actions can in no way be described as deliberate indifference to Plaintiff's medical needs. Even if this Court considers Plaintiff's

inadmissible evidence from the book, "Sleep to Save Your Life," that evidence confirms that Dr. Robertson's decisions were medically appropriate, as it discusses lung failure as
7 See Plaintiff's Response, at p. 13. 8 See FED. R. CIV. P. 56(e). 9 See Farmer, 511 U.S. at 837, 114 10 See FED. R. CIV. P. 56(e). 11 DSOF ¶ 23 12

S.Ct. at 1979.

DSOF ¶ 19

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having symptoms similar to sleep apnea and weight gain as correlating to a risk of sleep apnea.13 Therefore, even Plaintiff's inadmissible evidence fails to demonstrate that Dr. Robertson's actions were "repugnant to the conscious of mankind" or "incompatible with the `evolving standards' of progress in a maturing society."14 Third, although Plaintiff disagreed with Dr. Robertson's course of treatment, Plaintiff does not dispute receiving adequate treatment.15 Further, as Defendant

Robertson previously set forth in Defendant Robertson's Motion for Summary Judgment, prison authorities are given wide discretion as to the nature and extent of medical treatment that is given to prisoners.16 A prisoner has a right to medical care, but not a right to choose the type of treatment he should receive.17 Therefore, Plaintiff's disagreement regarding his treatment plan does not give rise to a constitutional violation.18 Because Plaintiff's Response confirms that he merely disagreed with Dr. Robertson's course of treatment, Plaintiff failed to show that Dr. Robertson's medical treatment decisions were sufficiently harmful to evidence deliberate indifference to a serious medical need.19 Accordingly, because Plaintiff did not meet his burden in demonstrating that Dr. Robertson knew that a substantial risk of serious harm to Plaintiff existed if there was a delay in receiving a C-PAP machine, Defendant Robertson's Motion for Summary Judgment must be granted. 2. Plaintiff failed to show that he had a serious medical need.

In his Response to Defendant Robertson's Motion for Summary Judgment, Plaintiff failed to submit admissible evidence proving that, at the time Dr. Robertson
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See Plaintiff's Exhibit 23 at pp. 91, 99. Id. at 102, 105. Plaintiff's Response, at p. 10 See Stiltner v. B.J. Rhay, 371 F. 2d 420, 421 (9th Cir 1967). See Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004); Jones v. Chandler, 2005 WL 1941314 (E.D. Pa.); thYoung v. Gray, 560 F.2d 201 (5th Cir. 1977); Spears v. McCotter, 766 F.2d 179, 181 (5 Cir. 1985). 18 See Veloz, 339 F. Supp. 2d at 525. 19 See Estelle, 429 U.S. at 106.
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explored treatment options and alternative causes for Plaintiff's symptoms, Plaintiff had a serious medical need. Plaintiff had the burden to show that his condition was one that "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain."20 Instead, Plaintiff relied on numerous statements contained in a book.21 These statements are inadmissible hearsay.22 They are also unsworn and unverified, as they are not supported by a sworn affidavit or declaration setting forth foundation for them. This Court cannot consider evidence that contains inadmissible hearsay, lacks foundation, or evidence that is not authenticated when ruling on Defendant Robertson's Motion for Summary Judgment.23 Nevertheless, even if this Court considers Plaintiff's inadmissible evidence, that evidence is inapplicable here because it describes symptoms of someone having the most extreme form of obstructive sleep apnea.24 Plaintiff had a history of mild apnea that was resolved with a bed wedge.25 Although Plaintiff alleged that his symptoms had not improved, Plaintiff's inadmissible evidence is inapplicable because Plaintiff failed to produce any evidence showing that he had been diagnosed with an extreme case of sleep apnea at the time Dr. Robertson explored alternative causes for Plaintiff's symptoms. Further, Plaintiff has not produced any evidence showing that any qualified physician examined Plaintiff, reviewed his medical records, or rendered an opinion regarding whether a Plaintiff's symptoms constituted a severe form of sleep apnea. Therefore, Plaintiff failed to show that he had a serious medical need because he relied on his own belief and inadmissible evidence inapplicable to him. Accordingly, because Plaintiff failed to make a showing sufficient to establish that his medical need

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See Chance, 143 F.3d at 702. See Plaintiff's Response, at pp. 2-4, 8-9, 11. See FED. R. EVID. 801 and 802. See Orr v. Bank of America, 285 F3d 764 (9th Cir. 2002). See Plaintiff's Exhibit 23, p. 83. See DSOF 1.
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was "objectively, sufficiently serious,"26 an element essential to Plaintiff's claim, Defendant Robertson's Motion for Summary Judgment must be granted. B. Plaintiff failed to show that he suffered an injury as a result of an alleged delay in receiving a C-PAP machine. Plaintiff must establish that the alleged deliberate indifference to his medical needs caused him injury.27 Plaintiff failed to submit admissible evidence showing that the alleged delay in receiving a C-PAP machine caused him injury, worsened an existing condition, or adversely affected his prognosis.28 Specifically, Plaintiff failed to provide any expert testimony or other medical documentation supporting that a delay in receiving a C-PAP machine caused or exacerbated disrupted sleep, damage to his throat or esophagus, acid reflux, or the accumulation of liquid in his lungs.29 Instead, in his Response, Plaintiff referred this Court to inadmissible evidence, statements from a book and the Affidavit of inmate Jack Earl.30 The medical information Plaintiff provided are hearsay statements from an individual who has not examined Plaintiff or rendered an opinion regarding the severity of Plaintiff's sleep apnea and whether Plaintiff has been injured, if at all, by any alleged delay in receiving a C-PAP machine. Although Plaintiff asserted that there were many documents that attested to his pain and suffering,31 Plaintiff failed to identify or produce those documents. Moreover, Plaintiff's allegation of injury in the form of increased prison time as a result of his escape attempt is specious at best. Plaintiff has simply failed to submit evidence disputing Defendant Robertson's facts.32 Accordingly, because Plaintiff failed to make a sufficient showing of an injury as a result Farmer, 511 U.S. at 837, 114 S.Ct. at 1977. Estelle, 429 US at 105; Shapely v. Nev. Bd of State Prison Com'rs., 766 F2d 404, 407 (9th Cir. 1985). 28 See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). 29 See DSOF 20. 30 See Plaintiff's Response, at p. 15. The Affidavit of Jack Earl is Exhibit 3 to Plaintiff's Motion for Extension of Time (Doc. #78), which discusses an event unrelated to this case. 31 See Plaintiff's Response at p. 15. 32 See DSOF ¶21-22.
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of an alleged delay in receiving a C-PAP machine, an element essential to Plaintiff's claim, Defendant Robertson's Motion for Summary Judgment must be granted. C. Plaintiff cannot maintain a § 1983 action based on his disagreement with the decisions of medical staff. Disagreements or differences in opinion by a doctor and a prisoner over a treatment plan does not constitute a constitutional violation.33 To support his claim, Plaintiff asserts that Dr. Robertson delayed meaningful treatment by requesting irrelevant tests and refused to order a second sleep study.34 At most, Plaintiff merely disagrees with Dr. Robertson's decisions regarding the type of treatment Plaintiff received for his symptoms. In particular, Plaintiff disagreed with receiving treatment in the form of a bed wedge, bottom bunk, and a prescription for acid reflux35 He disagreed with Dr.

Robertson's decision to send Plaintiff for a pulmonary evaluation to determine if his symptoms resulted from respiratory disease;36 and he disagreed with the decision to place him on a heart healthy diet37 Accordingly, because Plaintiff's disagreement with the type of treatment he received does not give rise to a constitutional claim, Defendant Robertson's Motion for Summary Judgment must be granted. D. Plaintiff Relied on Inadmissible Evidence to Defeat Defendant Robertson's Motion for Summary Judgment. Defendant Robertson presented admissible evidence with Defendant Robertson's Statement of Facts and Motion for Summary Judgment to show that no genuine issue of material fact exists, and that Plaintiff has no evidence to support his claims. To defeat summary judgment, Plaintiff was required to present pleadings, depositions, answers to interrogatories, admissions, and/or affidavits setting forth facts as

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See Veloz, 339 F.Supp.2d 525. Plaintiff's Response, at pp. 12-13. Id. at p. 5. Id. at p. 6. Id. at p. 7.
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would be admissible in evidence.38 He was also required to cite to the specific portions of the record to establish that a genuine issue of material fact exists.39 He did neither. Plaintiff did not file a controverting Statement of Facts, thus violating LR 56.1(b). Instead, Plaintiff made unsupported and unsworn allegations in his response, which are insufficient to defeat Defendant Robertson's Motion for Summary Judgment.40 Further, Plaintiff relied on inadmissible evidence, which a trial court cannot consider when ruling on a motion for summary judgment.41,42 Accordingly, because Defendant Robertson's facts are not disputed by admissible evidence, Defendant Robertson's Motion for Summary Judgment must be granted. E. Plaintiff Failed to Show that he Appropriately Exhausted his Administrative Remedies To exhaust an administrative grievance procedure, an inmate must follow the facility grievance procedures through three levels.43 The facility grievance policy requires inmates to first seek an informal resolution of his issue.44 If informal resolution is unsuccessful, the inmate proceeds to Level One by filing a grievance.45 Upon receiving a decision, an inmate must proceed to Level Two by filing an appeal.46 If an inmate believes a grievance has not been handled consistent with the facility grievance policy, the inmate must proceed to Level Three by seeking review by the Grievance and Compliance Administrator.47 Plaintiff failed to proceed to Level Three.

FED. R. CIV. P. 56 (c) and (e). LR 56.1(b). See Id. Defendant Robertson has moved in a separate motion asking this Court to strike Plaintiff's inadmissible evidence. 42 See Orr, 285 F.3d at p.773. 43 See Defendant Robertson's Supplement Statement of Facts ¶ 27. 44 See id. 45 See id. 46 See id. 47 See id.
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In his Response, Plaintiff does not show that he exhausted his remedies. Complying with Level One requirements, Plaintiff filed a grievance requesting to be transferred to Alaska in order to use a C-PAP machine.48 That grievance was denied, and Plaintiff proceeded to Level Two by filing an appeal.49 Plaintiff did not submit any evidence showing that he proceeded to Level Three by requesting review of his grievance by the Grievance and Compliance Officer. Plaintiff's Exhibit 24 includes a letter from Plaintiff to Mel Henry, the Health Care Administrator, which discusses the results of Plaintiff's February 2002 sleep study and Plaintiff's request to be transferred to Alaska. That letter is not directed to the Grievance and Compliance Administrator seeking review as the facility grievance procedures require.50 Although there is a letter included in Plaintiff's Exhibit 24 to Plaintiff from Annie Landrum, the Grievance and Compliance Administrator, this letter directs Plaintiff to submit his appeal (Level Two) to Dr. Robertson.51 The remaining evidence provided by Plaintiff showing that he exhausted his remedies is an unsworn, handwritten letter from Plaintiff to Dr. Robertson allegedly complying with Ms. Landrum's letter.52 This letter does not seek Level Three review. Thus, there is no evidence that Plaintiff requested review as required by the grievance policy.53 Therefore, by failing to seek review, Plaintiff failed to proceed to Level Three. Even if this Court finds that Plaintiff exhausted his remedies with respect to the grievance to be transferred to Alaska, Plaintff failed to grieve inadequate medical care or the delay or failure to receive a C-PAP machine, the allegations made in Plaintiff's First Amended Complaint.54
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Therefore, because Plaintiff failed to grieve receiving

See DSOF ¶ 28. See DSOF ¶ 28-29. See DSOF ¶ 29. See Plaintiff's Exhibit 24. See id. See DSOF ¶ 27. See DSOF ¶ 30.
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inadequate medical care or the delay or failure to receive a C-PAP machine, Plaintiff failed to exhaust his administrative remedies. II. CONCLUSION Defendant Robertson respectfully requests this Court to grant Defendant Robertson's Motion for Summary Judgment because: (1) Plaintiff failed to show that Defendant Robertson was deliberately indifferent to a serious medical need; (2) Plaintiff failed to show that he sustained an injury as a result of the delay in receiving a C-PAP machine; (3) Plaintiff showed only a disagreement with Dr. Robertson's treatment decisions regarding Plaintiff's symptoms; (4) Plaintiff relied on inadmissible evidence to defeat Defendant Robertson's Motion for Summary Judgment; and (5) Plaintiff failed to submit admissible evidence that he exhausted the administrative remedies available to him. RESPECTFULLY SUBMITTED this 20th day of February, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Nicole T. McGuire Daniel P. Struck Nicole T. McGuire 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Robertson ELECTRONICALLY filed this 20th day of February 2007 COPY of the foregoing mailed this date to: Kim Michael Cook, #112893 LEGAL MAIL Red Rock Correctional Facility 1750 E. Arica Road Eloy, Arizona 85231 Plaintiff pro se

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COPY delivered electronically this date to: Renee M. Coury Attorneys for Defendant Benjamin s/ Tonya L. West

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