Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Swibas

United States District Court, D. Colorado

September 13, 2017

SHANE JOHNSON, Plaintiff,
v.
CARIE SWIBAS, individual and official capacity as dietician, JO ANN BURT, individual and official capacity as dietician, and PEGGY EWERS, individual and official capacity as nurse, Defendants.

          ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          Robert E. Blackburn, United States District Judge.

         This matter is before me on the following: (1) the defendants' Motion for Summary Judgment [#63][1] filed September 9, 2016; and (2) the Recommendation of United States Magistrate Judge [#83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83] filed July 28, 2017. The plaintiff filed objections [#86');">86');">86');">86');">86');">86');">86');">86] to the recommendation on September 11, 2017.[2]

         As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.

         The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167');">67 L.Ed.2d 1081 (2007); Andrews v. Heaton, 83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83 F.3d 1070');">483');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83 F.3d 1070, 1076 (10thCir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Finding no error in the recommendation, I find and conclude that recommendation should be approved and adopted. I overrule the objections [#86');">86');">86');">86');">86');">86');">86');">86].

         As detailed by the magistrate judge, the remaining claims in this case are Eighth Amendment claims against the three remaining defendants and a First Amendment claim against defendant Peggy Ewers. All other claims were dismissed previously. In her detailed recommendation [#83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83], the magistrate judge describes the claims still at issue, the evidence presented by the parties in the summary judgment briefing, and the analysis of the magistrate judge. On both the First Amendment claim and the Eighth Amendment claim, the magistrate judge concludes that the evidence in the record does not show that there remains any genuine issue of disputed fact as to any aspect of these claims. The evidence in the record does not support a conclusion by a reasonable fact-finder that the plaintiff suffered a violation of his rights under the First or Eighth Amendments. In addition, the magistrate judge concludes that, even if the plaintiff had come forward with evidence to support a viable claim, the defendants are entitled to qualified immunity as to any such claim.

         In his objections [#86');">86');">86');">86');">86');">86');">86');">86], the plaintiff, Shane Johnson, enumerates 15 objections to the recommendation. I address each objection in turn.

         One & Two:

         Prior to December 23, 2013, Mr. Johnson was receiving three supplemental snacks per day. On December 23, 2013, Nurse Boyd cancelled the snacks after determining Mr. Johnson had no medical need for supplemental snacks. On April 4, 2014, Mr. Johnson filed a grievance with Ms. Ewers describing symptoms he had and requesting that his snacks be resumed. Ms. Ewers denied the grievance due to procedural error. Ms. Ewers could not find a record of a request, a “kite, ” from Mr. Johnson asking to be seen by a medical provider. Mr. Johnson claims the denial of this grievance violated his Eighth Amendment right against cruel and unusual punishment.

         Mr. Johnson claims the magistrate judge mis-characterized and improperly limited his Eighth Amendment claim by limiting this claim to the allegation that defendant Peggy Ewers denied a grievance concerning Mr. Johnson's medical care. Although the magistrate judge makes a statement to this effect in the recommendation, at pages 18 - 19, the magistrate judge addresses in the recommendation other aspects of Mr. Johnson's claim against Ms. Ewers. Recommendation [#83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83], pp. 17 - 19. The magistrate judge addresses Mr. Johnson's contention that Ms. Ewers was responsible for providing or arranging medical care for him. Id., p. 17. Correctly, the magistrate judge concluded that the evidence does not support this contention. In addition, the magistrate judge concluded that the evidence does not show that Ms. Ewers was aware of a substantial risk of serious harm to Mr. Johnson's health or that Ms. Ewers was presented with an emergent situation when reviewing the grievance of Mr. Johnson. These conclusions are correct.

         Three:

         Mr. Johnson “contends that a medical record on 12/23/13 (concluding that there's no indication for snacks while Plaintiff is receiving three per day) is immaterial to a 4/3/14 request for medical care, ” apparently referring to the grievance addressed by Ms. Ewers. Objections [#86');">86');">86');">86');">86');">86');">86');">86], p. But then Mr. Johnson says the December 13, 2013, record is the reason for the April 3, 2014, request for medical care, again apparently referring to the grievance addressed by Ms. Ewers. Mr. Johnson claims there is a genuine dispute about whether the denial of his snacks in December of 2013, is sufficient to excuse Ms. Ewers' decision to deny the April 4, 2014, grievance. The magistrate judge addressed this chain of events and properly analyzed the evidence and the law applicable to this aspect of the Eighth Amendment claim against Ms. Ewers.

         Four:

         This objection relates to the claims against the defendants for failure to provide Mr. Johnson with meals other than the Meal Mart meals he was being given. Mr. Johnson claims he is allergic to one or more ingredients in those meals and his allergic reactions caused some or all of the symptoms he suffered. Mr. Johnson disagrees with the conclusion of the magistrate judge that, at the relevant points in time, Mr. Johnson had not been diagnosed with a food allergy. The magistrate judge addresses this issue in detail. Recommendation [#83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83');">83], pp. 10 - 16. Mr. Johnson's interpretation of the medical records does not support his contention that he had been diagnosed with a food allergy at the relevant times.

         Five:

         Mr. Johnson claims Exhibit B-13 to his response to the motion for summary judgment demonstrates that Jo Ann Burt, a dietician, disregarded the recommendation of a physician that Mr. Johnson's meals be changed. Response [#67');">67], Exhibit B-13 (CM/ECF p. 35). On that form, a medical provider describes Mr. Johnson's self-diagnosis of a food allergy and his request for a substitute meal. The provider says Mr. Johnson “would like to try the substitute meal? not sure what that is. thank you.” Response [#67');">67], Exhibit B-13 (CM/ECF p. 35) (punctuation and lack of capitalization in original). Ms. Burt responds to the provider and says RAST testing for genuine food allergies is recommended when such an allergy is suspected. Exhibit B-13 does not support the contention of Mr. Johnson that Ms. Burt disregarded the diagnosis and directions of a physician or that she disregarded a substantial risk of serious harm to Mr. Johnson.

         Similarly, Mr. Johnson claims Exhibits B-11 and B-13 to his response to the motion for summary judgment demonstrate that Carie Swibas, a dietician, disregarded the recommendation of a physician that Mr. Johnson's meals be changed. Response [#67');">67], Exhibit B-11 & B-17 (CM/ECF pp. 33, 39). In Exhibit B-11, an ambulatory health record, the provider notes that Mr. Johnson says he is having issues with Meal Mart meals. The provider notes that Mr. Johnson has not seen a dietician and that he has had a RAST test for some foods to evaluate allergies. Results of that test are not stated. This document does nothing to support Mr. Johnson's Eighth Amendment claim against Ms. Burt because it does not tend to show that Ms. Burt disregarded the diagnosis and directions of a physician or that she disregarded a substantial risk of serious harm to Mr. Johnson. In Exhibit B-17, a medical provider discusses Mr. Johnson's allergy symptoms and Mr. Johnson's conclusion that the Meal Mart meals cause the symptoms. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.