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Swan v. Physician Health Partners, Inc.

United States District Court, D. Colorado

September 20, 2018

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.



         Plaintiff 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 his knee.

         Currently 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 case.


         Summary 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).

         In 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. 1987).


         Rule 56 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.

         Fed. R. 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 Standard III.E.4(b).

         Despite 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 at 5.)

         Out of 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.[1] 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 undisputed.

         III. ...

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