Blake v. Webster et al

Filing 98

ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE.Defendants motion for Summary Judgment is GRANTED. This action is DISMISSED in its entirety, including any pending motions, and judgment shall be entered accordingly. By Judge David M. Ebel on 3/13/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:10-cv-00162-DME-CBS

SIDNEY M. BLAKE,
Plaintiff,
v.
BRIAN WEBSTER,
JULIE FULLER,
RYDER MAY,
DOCTOR FORTUNATO, and
KEVIN MILYARD
Defendants.
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
This matter comes before the Court on Magistrate Judge Craig B. Shaffer’s
Recommendation (Doc. 94) that this Court grant Defendants’ Motion for Summary Judgment
(Doc. 80). Plaintiff has filed a timely objection to the Recommendation (Doc. 95), and
Defendants have filed a response to that objection (Doc. 96). After reviewing the Magistrate
Judge’s Recommendation de novo, see Fed. R. Civ. P. 72(b)(3), the Court adopts the
Recommendation.
Plaintiff Sidney M. Blake, proceeding pro se, is a prisoner in the custody of the Colorado
Department of Corrections (“CDOC”). The events pertinent to this lawsuit occurred while
Plaintiff was incarcerated at CDOC’s Sterling Correctional Facility (“SCF”) in Sterling,
Colorado. Plaintiff was seen repeatedly by SCF medical staff, complaining of chest pains. On
the basis of a chest X-ray taken on either December 8 or 9, 2010, SCF medical staff diagnosed

Plaintiff as suffering from a pleural effusion (excess fluid in the chest cavity around the lungs),
and referred him to an outside facility for further testing. On December 10, 2010 at
approximately 2:00 P.M., an echocardiogram conducted at an off-site medical facility confirmed
that Plaintiff in fact suffered from a pericardial effusion (excess fluid in the pericardial cavity),
and Plaintiff was referred to a Denver hospital for treatment. Plaintiff was admitted to Denver
Health Medical Center at 9:20 P.M. on December 10, 2010 and admitted to surgery at 11:35
P.M. A pericardiocentesis (draining of excess fluid from the pericardial cavity) was completed
by 1:45 A.M. on December 11, 2010.
Plaintiff brought an action under 42 U.S.C. § 1983 against the Defendants, alleging that
they denied him, or delayed, medical care in violation of his Eighth Amendment rights.
Defendants moved for summary judgment on the grounds that (1) Plaintiff failed to demonstrate
that Defendants were deliberately indifferent to his serious medical needs; and (2) Plaintiff failed
to prove that any of the Defendants had any personal involvement in the alleged deprivation of
rights. Moreover, Defendants argued, they are entitled to qualified immunity. Plaintiff
responded (Doc. 84) with a reiteration of his allegations and to dispute certain facts.
Summary judgment is proper “if the movant shows 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 Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The Court views the evidence,
and reasonable inferences drawn therefrom, in the light most favorable to the non-moving party.
Sealock, 218 F.3d at 1209. “However, where the non[-]moving party will bear the burden of
proof at trial on a dispositive issue that party must go beyond the pleadings and designate

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specific facts so as to make a showing sufficient to establish the existence of an element essential
to that party’s case in order to survive summary judgment.” Id.
A prisoner claiming that he has been denied medical treatment in violation of the Eighth
Amendment must prove that prison officials were “deliberately indifferent to the [prisoner’s]
serious medical needs.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quoting
Perkins v. Kan. Dep’t. of Corr.’s, 165 F.3d 803, 811 (10th Cir. 1999)). Deliberate indifference
has an objective component and a subjective component. Id. The objective component is met
when a medical need is “sufficiently serious,” that is, if it “has been diagnosed by a physician as
mandating treatment or . . . is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.’” Id. (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999)). The subjective component is met if a plaintiff “establish[es] that defendant(s) knew he
faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures
to abate it.” Hunt, 199 F.3d at 1224 (internal quotation marks omitted).
Upon receiving a magistrate judge’s recommendation for disposition of a dispositive
motion, the district court may accept, reject, or modify the recommended disposition. See Fed.
R. Civ. P. 72(b)(3). But the district court must review de novo those portions of the
recommendation to which proper objection has been made. Id. An objection must be
“sufficiently specific to focus the district court’s attention on the factual and legal issues that are
truly in dispute.” United States v. One Parcel of Real Property Known as 2121 East 30th Street,
Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). A “general objection,” id. at 1058, or
one that merely directs the district court, by reference, back to the “motions, exhibits, testimony,

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briefs, and arguments,” id. at 1060 (alteration omitted), already submitted to the court, will not
do. See id.
The parties do not dispute, and the Court recognizes, that a pericardial effusion is a
“serious medical need.” Nevertheless, the Court agrees with the Magistrate Judge that Plaintiff
has failed “to make a showing sufficient to establish,” see Sealock, 218 F.3d at 1209, that
Defendants delayed or denied Plaintiff medical care at all, let alone with deliberate indifference,
and therefore Defendants are entitled to summary judgment. Nothing in the record suggests that
Defendants disregarded the risk posed by Plaintiff’s effusion, or that Defendants failed to take
reasonable measures to abate it. Rather, Defendants made arrangements for further testing and
treatment. Plaintiff, once conclusively diagnosed with a pericardial effusion, was on his way to a
hospital within a matter of hours. His surgical treatment was complete, and his symptoms
resolved, within approximately twelve hours.
Plaintiff’s objections to the Magistrate Judge’s Recommendation are in fact not
objections to the Recommendation at all. Rather, they are assertions of fact that are not material
to this dispute, or repetitions of allegations in his complaint, or general objections exhorting the
Court to review all of Plaintiff’s medical records. None of these objections alter the Court’s
conclusion.
Because Plaintiff has failed to raise a genuine issue of material fact as to whether
Defendants denied or delayed the treatment of his serious medical need with deliberate
indifference, this Court agrees with Magistrate Judge Shaffer’s Recommendation and adopts it in
full. Plaintiff’s objections to the Magistrate Judge’s Recommendation are OVERRULED.

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Defendants’ motion for Summary Judgment is GRANTED. This action is DISMISSED in its
entirety, including any pending motions, and judgment shall be entered accordingly.

IT IS SO ORDERED.

Dated this

13th

day of

March , 2012.
BY THE COURT:
s/ David M. Ebel
U. S. CIRCUIT COURT JUDGE

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