RECENED ___COPY
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA FEB 0 7 2007
Kim Michael Cock. } _ c».)em
} SY_m“_m_y“__mMPOEPUTY
v. } "
)
Dr. Robertson, et al., ) Plaintiff's Opposition To Defendant
Defendant. ) Benjamin's Joinder Motion For
} Summary Judgment
Comes now the Plaintiff, Kim M. Cook, pro se, in rebuttal to
Benjamin's memorandum of points and authorities. In part I & II
(Overview and Facts) of Benjamin's Motion, his factual issues are
practically identical to Robertson's. Therefore, Blaintiff refers
_ counsel for Benjamin and the court to his response in Opposition
To Robertson's Motion to avoid repetition.
I. Standard For Summary Judgment
The standard of review for Summary Judgment cited by both
defendants is basic and well established. There must be an issue
of material fact. Their arguments and contestings of my factual
allegations seem to establish that.
II. Legal Issues
In spite of all the lenguy legal arguments proposed by
Defendant Benjamin, the Disagreement on material facts is clear
and obvious. This precludes Summary Judgment according to the
clear language of Civil Rule 56(c).
A. Plaintiff Can and Does Show Qbjectively That:
In response to Robertson's Motion, Plaintiff has given
extensive and detailed descriptions of sleep apnea and its
suffocating effects and the effect of GERD. This shows a clear
factual issue supported by Plaintiff's citation of experts.
I
Defendant Benjamin has not rebutted Plaintiff's allegations to
any degree that Summary Judgment can be justified.
i Case 2:03-cv-01100-ROS-I\/IHB Document 102 Filed O2/O7/2007 Page1 0f4
B-
l
Plaintiff has met the first part of thei U—part test
on substantial indifference. His factual allegations show
Defendant Benjamin knew or should have known and been aware
of substantial risk of serious harm do to sleep apnea and
GERD left untreated.
Benjamin's affidavit and testimony cannot contradict what he
knew or should have known.. But at best there is an issue to be
decided at trial on this material fact. [See Plaintiff's response
in opposition to Robertson's Motion For Summary Judgment and
his Affidavit].
As stated in Defendant Benjamin's Motion at P.11. After a
defendant moves for Summary Judgment and supports his motion with
declarations, he is entitled to Summary Judgment "unless" the
Plaintiff comes forward with conflicting expert evidence citing
Hutchinson v U. S., 838 F.2d 390 (9th Cir. 1987).
Plaintiff's Affidavit and Response In Opposition To Robertson's
Motion are filed concurrent with the opposition (see notice of
filing) and incorporated into this pleading in Opposition to Defen-
dant Benjamin. Plaintiff's citation of conflicting expert evidence
and his own sworn factual assertions preclude Summary Judgment.
Case 2:03-cv-01100-ROS-I\/IHB D0cuénent1O2 Filed O2/O7/2007 Page20f4
C. Benja~in's Actions Demonstrate Deliberate Indifference
‘ Although Plaintiff may be unaware of many of Benjamin's
actions (primarily notations in margins of medical requests)
this is not determinative.
Plaintiff knows what Benjamin and Robertson did not do,
and he knows and asserts what Robertson and Benjamin knew or
should have known when denying treatment. This is sufficient for
trial on these material facts.
CCA does not provide full and accurate information to
prisoners on details. Now they want to imply that their failure
to keep Cook informed somehow insulates them from liability.
How absurd. what is known is sufficient for this cause of action.
D. Plaintiff Has Plead Exhaustion Of Administrative Remedies.
It is well established and consistent with Civil Rule 8
that a pleading contain a “short and plain statement of the
grounds" for relief and a "short and plain statement that the _
pleader is entitled to re1ief."
Plaintiff's claim is tonvepedv in language "short and plain"
which leaves no doubt that he has exhausted his administrative
- remedies. It is that nature of his complaint that CCA has
ignored his attempts to have his medical needs addressed through
his requests, grievances and appeals of those decisions and
denials.
Case 2:03-cv-01100-ROS-IVIHB Document 102 Filed O2/O7/2007 Page 3 of 4
Copies of his steps and attempts to address his medical
needs and have them addressed by CCA prison staff are included
as exhibits attached to pleadings and are an integral part of his
action/complaint here.
Defendants' argument that Plaintiff has not exhausted
administrative remedies, or plead that, has no merit.
gg;. Conclusion
Plaintiff can prove the element necessary to succeed in
this claim. Summary Judgment must be denied.
Executed and submitted on 5 {5'{0 2, by
Date Kim M. Cook, Pro Se
RRCC
1750 E. Arica Rd.
Eloy, AZ 15231
4 .
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