Johnson v. Dash et al

Filing 214

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: That the Recommendation of United States Magistrate Judge [#200] is approved and adopted as an order of this court; The objections [#207] of the plaintiff are overruled; The Third Moti on for Summary Judgment [#170] of the plaintiff is denied; The Motion for Summary Judgment [#179] of defendant Kathleen Boyd is granted; The Motion for Summary Judgment [#180] of defendants Justin Dash, James Olson, and Carmen Estrada [#80] is granted. The jury trial set to commence September 21, 2015, at 8:30 a.m. is vacated; and this case is closed. By Judge Robert E. Blackburn on 9/14/15. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02400-REB-KMT
SHANE JOHNSON,
Plaintiff,
v.
JUSTIN DASH, individually and in his official capacity as case manager,
JAMES OLSON, individually and in his official capacity as committee chairperson,
CARMEN ESTRADA, individually and in her official capacity as committee chairperson,
and
KATHLEEN BOYD, individually and in her official capacity as nurse practitioner,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Third Motion for Summary
Judgment [#170]1 of the plaintiff filed June 5, 2015; (2) the Motion for Summary
Judgment [#179] of defendant Kathleen Boyd filed June 18, 2015; (3) the Motion for
Summary Judgment [#180] of defendants Justin Dash, James Olson, and Carmen
Estrada [#80] filed June 19, 2015; and (4) the corresponding Recommendation of
United States Magistrate Judge [#200] filed August 20, 2015. The plaintiff filed
objections [#207] to the recommendation, and the defendants filed a response [#209] to
the objections. I overrule the objections, approve and adopt the recommendation, grant

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“[#170]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

the motions for summary judgment of the defendants, and deny the motion for summary
judgment of the plaintiff.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this case, and the applicable case
law.
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 lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
The plaintiff, Shane Johnson, is incarcerated in the Colorado Department of
Corrections (DOC). His remaining claims concern two issues. First, he alleges he was
denied prompt and effective treatment for Hepatitis C while he was incarcerated. This
claim is asserted against defendant Kathleen Boyd. Second, he alleges he was
confined in administrative segregation without meaningful periodic reviews of his
placement in administrative segregation. This claim is asserted against defendants
Justin Dash, James Olson, and Carmen Estrada.
Mr. Johnson received treatment for Hepatitis C, but contends his treatment was
delayed unnecessarily, in violation of his Eighth Amendment right against cruel and
unusual punishment. As a result of the delay in treatment, Mr. Johnson contends, he
still has Hepatitis C and he suffers from cirrhosis of the liver. As detailed in the

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recommendation [#200], DOC medical records and the review of those records by
Susan Tiona, M.D., Chief Medical Officer for the Colorado Department of Corrections,
indicate otherwise. Dr. Tiona states in her affidavit [#179-1] that medical tests show Mr.
Johnson now is free of the Hepatitis C virus and that he does not suffer from cirrhosis of
the liver. Further, Dr. Tiona states that the time that passed between the first request of
Mr. Johnson for treatment and the initiation of treatment did not cause Mr. Johnson any
appreciable injury.
In his objection [#207], Mr. Johnson cites certain medical records in evidence in
this case in an effort to demonstrate that he still suffers from Hepatitis C and cirrhosis of
the liver. I have reviewed his objections and his citations to evidence in the record.
None of the evidence cited by Mr. Johnson demonstrates that there remains a genuine
issue of material fact on the key issues: (1) Does Mr. Johnson still suffer from Hepatitis
C? (2) Does Mr. Johnson suffers from cirrhosis of the liver caused by a delay in
treatment for his Hepatitis C; and (3) Did the delay in providing treatment for Hepatitis C
to Mr. Johnson caused him any injury? Viewing the undisputed facts in the record, as
supported by proper evidence, in the light most favorable to Mr. Johnson, the answer to
all three questions is no. After de novo review, I approve and adopt the
recommendation [#200] of the magistrate judge on the Eighth Amendment claim
concerning Hepatitis C treatment.
I now turn to the claim in which Mr. Johnson alleges he was not provided
meaningful periodic reviews of his placement in administrative segregation, in violation

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of his right to due process of law.2 Mr. Johnson was incarcerated at the Centennial
Correctional Facility (CCF) from February 16, 2012, to June 29, 2012. He was held in
administrative segregation while at CCF. At that time, the administrative segregation
system had six levels. Mr. Johnson was at Level 3 when he arrived at CCF on February
16, 2012. Mr. Johnson received written reviews of his administrative segregation
placement on April 9, 2012, May 9, 2012, and June 8, 2012. Motion for summary
judgment [#180], Exhibit A-1, CM/ECF pp. 45 - 47. Defendant Carmen Estrada was a
Case Manager III, a supervisor of case managers, at CCF and was the chairperson of
the classification committee. In these roles, she reviewed the written forms on which
Mr. Johnson was given information about the periodic reviews of his administrative
segregation placement and she signed those forms.
The magistrate judge recommends that summary judgment be granted as to the
claim against Ms. Estrada because Ms. Estrada was a supervisor who did not
personally participate in the administrative segregation reviews challenged by Mr.
Johnson. I note that Ms. Estrada reviewed and signed the written forms summarizing
the administrative segregation review process for Mr. Johnson. Those actions readily
can be seen as personal participation by Ms. Estrada in the review process challenged
by Mr. Johnson. However, I find this issue to be moot. As a matter of substance, the
written administrative segregation reviews provided to Mr. Johnson at CCF and signed
by Ms. Estrada informed Mr. Johnson of the reasons he was recommended for or
2

The due process claim is based on the contention that Mr. Johnson has a protected liberty
interest which is affected by his administrative segregation placement. For the purpose of resolving the
motions for summary judgment, I assume without deciding that a protected liberty interest is at stake.
However, that proposition remains an open question. See, e.g., Rezaq v. Nalley, 677 F.3d 1001 (10th Cir.
2012).

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denied progression in administrative segregation. Motion for summary judgment [#180],
Exhibit A-1, CM/ECF pp. 45 - 47. In addition, they informed him of the reasons for his
placement in administrative segregation and they state why the placement remained
warranted, to the extent the administrative segregation placement was to be continued.
This complies with the law applicable during this time period. Based on this amended
analysis, I find and conclude that Ms. Estrada is entitled to summary judgment.
On April 2, 2012, the United States Court of Appeals for the Tenth Circuit issued
its opinion in Toevs v. Reid, 685 F.3d 903, 913 (10th Cir. 2012). To some extent,
Toevs changed the requirements for periodic reviews of administrative segregation
placements. The Toevs opinion was released just before Mr. Johnson was moved to
the Colorado State Penitentiary (CSP). Mr. Johnson was incarcerated at CSP from
June 29, 2012, through September 14, 2012, a period of about two and one-half
months.
During this time, defendant James Olson was a Case Manager III, a supervisor
of case managers, and a member of the Internal Classification Committee at CSP.
Defendant Justin Dash was the case manager for Mr. Johnson while Mr. Johnson was
housed at CSP. This is the time period at issue in the claim against Mr. Olson and Mr.
Dash. During this time, Mr. Johnson claims, Mr. Olson and Mr. Dash violated his right
to due process of law because they failed to provide Mr. Johnson with meaningful
review of his administrative segregation placement.
On May 15, 2012, shortly before Mr. Johnson arrived at CSP, a new DOC
regulation concerning classifications within administrative segregation went into effect.

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The new system included four privilege levels. Level 4 was divided into sub categories
of 4A and 4B.
Mr. Johnson was at level 3 when he arrived at CSP. He received a written
review of his placement on July 11, 2012, and August 8, 2012. Motion for summary
judgment [#180], Exhibit A-3, CM/ECF pp. 11 - 12. On August 8, 2012, he was
recommended for progression to Level 4B. Id., CM/ECF p. 12. In addition, Mr. Dash
met personally with Mr. Johnson to discuss these reviews. Mr. Johnson claims Mr.
Dash “never informed me, in person or otherwise, of the reasons why I was being
recommended for or denied progression.” Response [#187], p. 7 (internal quotation
omitted).
The affidavit of Mr. Dash indicates otherwise. Motion for summary judgment
[#180], Exhibit A-3, CM/ECF pp. 1 - 10. Mr. Johnson claims these personal discussions
were not adequate. Most important for the purpose of the motion for summary
judgment, the written review documents provided to Mr. Johnson informed him of the
reasons he was recommended for or denied progression. In addition, they informed
him of the reasons for his placement in administrative segregation and states why the
placement remained warranted, to the extent the administrative segregation placement
was to be continued. This complies with the law applicable during this time period, as
stated in Toevs v. Reid, 685 F.3d 903, 913 (10th Cir. 2012).
The magistrate judge recommends that summary judgment be granted as to the
claim against Mr. Olson because Mr. Olson was a supervisor who did not personally
participate in the administrative segregation reviews challenged by Mr. Johnson. I note
that Mr. Olson reviewed and signed the written forms summarizing the administrative
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segregation review process for Mr. Johnson. Those actions readily can be seen as
personal participation by Mr. Olson in the review process challenged by Mr. Johnson.
However, I find this issue to be moot. As a matter of substance, the written
administrative segregation reviews provided to Mr. Johnson at CSP were adequate
under the law applicable during this time period, as stated in Toevs v. Reid, 685 F.3d
903, 913 (10th Cir. 2012). Based on this amended analysis, I find and conclude that Mr.
Olson is entitled to summary judgment.
In sum, defendant Kathleen Boyd is entitled to summary judgment on the claim of
Mr. Johnson concerning his Hepatitis C treatment. Defendants Carmen Estrada, James
Olson, and Justin Dash are entitled to summary judgment on the due process claim
asserted against them. This resolves all of the remaining claims against all of the
remaining defendants in this case. The objections [#207] of the plaintiff do not
undermine the summary judgment analysis in the recommendation and in this order. I
overrule the objections. As amended in this order, I approve and adopt the
recommendation [#200].
THEREFORE, IT IS ORDERED as follows:
1. That with the amended analysis stated in this order, the Recommendation of
United States Magistrate Judge [#200] filed August 20, 2015, is approved and
adopted as an order of this court;
2. That the objections [#207] of the plaintiff are overruled;
3. That the Third Motion for Summary Judgment [#170] of the plaintiff filed
June 5, 2015, is denied;

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4. That the Motion for Summary Judgment [#179] of defendant Kathleen Boyd
filed June 18, 2015, is granted;
5. That the Motion for Summary Judgment [#180] of defendants Justin Dash,
James Olson, and Carmen Estrada [#80] filed June 19, 2015, is granted;
6. That based on this order, the order entered concurrently with this order
adopting the recommendation [#164] of the magistrate judge, and the previous order
[#147] of the court, judgment shall enter in favor the defendants named in this case,
Justin Dash, Donna Zavislan, Debra Ahlin, James Olson, Carmen Estrada, Kathleen
Boyd, Daniel De Priest, Keri McKay, Helen Christner, Judith Beeman, and Yvonne
Sargent, against the plaintiff, Shane Johnson;
7. That the defendants are awarded their costs to be taxed by the clerk of the
court in the time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1;
8. That the jury trial set to commence September 21, 2015, at 8:30 a.m. is
vacated; and
9. That this case is closed.
Dated September 14, 2015, at Denver, Colorado.
BY THE COURT:

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