United States District Court, D. Colorado
JOSHUA D. SWAN, Plaintiff,
PHYSICIAN HEALTH PARTNERS, INC., a Colorado Corporation d/b/a CORRECTIONAL HEALTH PARTNERS; and STEPHEN KREBS, CEO and President of Correctional Health Partners and Chairman of Physician Health Partners, Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
Joshua D. Swan (“Plaintiff”) is currently in the
custody of the Colorado Department of Corrections
(“CDOC”). He alleges that Defendants Correctional
Health Partners (“CHP”) and Dr. Stephen Krebs
(“Dr. Krebs”) violated his Eighth Amendment right
to be free from cruel and unusual punishment when CHP,
through Dr. Krebs, denied an MRI request and thereby
prolonged the time before Plaintiff could receive surgery on
before the Court is Defendants' Motion for Summary
Judgment. (ECF No. 116.) For the reasons explained below, the
Court will grant the motion, vacate the upcoming trial,
direct judgment in Defendants' favor, and terminate this
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
speaks unequivocally about a summary judgment movant's
and opponent's burdens of production:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Civ. P. 56(c)(1) (emphasis added). In addition, the
undersigned requires that the summary judgment opponent admit
or deny the movant's affirmative factual assertions with
“a specific reference to admissible evidence in the
record supporting the denial.” WJM Revised Practice
this, Plaintiff supports only four of his denials of
Defendants' affirmative factual assertions with record
evidence, or with argument that Defendants misinterpret their
cited evidence. (See ECF No. 129 at 5-6 ¶¶
6, 10, 12, 16.) And, of Plaintiff's own affirmative
factual assertions, only two are supported by citations to
anything, with only one of those citations being to a
document “in the record” (Plaintiff's Ex.
2)-the other citation is to a website printout disclosed for
the first time with the response brief (Plaintiff's Ex.
1). (See id. at 1-3; see also ECF No. 132
an abundance of caution, Defendants have taken the time to
admit or deny Plaintiff's affirmative factual assertions,
whether properly supported or not. (Id. at 2-9.) To
the extent Defendants have admitted an assertion, the Court
will treat it as admissible and undisputed for present
purposes. To the extent Defendants have denied an assertion,
the Court will disregard that assertion, save for the two
assertions supported by evidence. To the extent Plaintiff has
denied one of Defendants' affirmative assertions but has
failed to properly support that denial, the Court will
disregard the denial and deem Defendants' assertion