Rickert v. Farnsworth, et al
ORDER ADOPTING AND AFFIRMING 96 APRIL 14, 2014RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: Defendants' 87 Motion for Summary Judgment is granted. Plaintiff's 97 Motion for Extension of Time is denied as moot. The claims against Defendant are dismissed with prejudice. The case is dismissed in its entirety. By Judge Christine M. Arguello on 06/09/2014. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00252-CMA-BNB
JASON LEE RICKERT,
REVADA FARNSWORTH, R.N., Boulder County Jail Badge #1524,
CHERI HARVEY, R.N., Boulder County Jail Badge #1581,
PATTI BOOTH, R.N., Boulder County Jail Badge #1507, and
DR. JEREMIAH KAPLAN, M.D., Boulder County Jail Medical,
ORDER ADOPTING AND AFFIRMING APRIL 14, 2014
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case was referred to United States Magistrate Judge Boyd N. Boland
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 29.) On November 18,
2013, Defendants filed a Motion for Summary Judgment. (Doc. # 87.) On April 14,
2014, Judge Boland issued a Recommendation granting Defendants’ Motion. (Doc.
# 96.) Plaintiff filed timely objections to Judge Boland’s Recommendation. (Doc. ## 98,
When a magistrate judge issues a recommendation on a dispositive matter,
a district court judge is required to “determine de novo any part of the magistrate
judge’s [recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3);
28 U.S.C. ' 636(b)(1)(C). The Court has conducted a de novo review of this matter,
including reviewing all relevant pleadings, the Recommendation, and Plaintiff’s
objections. In conducting its review, “[t]he district court judge may accept, reject, or
modify the recommendation; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. ' 636(b)(1)(C).
Based on this de novo review, this Court concludes that the magistrate judge=s Report
and Recommendation is correct and is not called into question by Plaintiff=s Objections. 1
Plaintiff suffers from Crohn’s disease, an inflammatory bowel disease that
causes, among other things, abdominal pain, diarrhea, vomiting, and weight loss.
At the time he filed the instant complaint, Plaintiff was detained at the Boulder County
Jail and received medical treatment from the four Defendants: (1) Revada Farnsworth,
R.N., who responded to the majority of Plaintiff’s kites and worked with jail staff
regarding Plaintiff’s medical treatment; (2) Dr. Jeremiah Kaplan, M.D., who was the
Doctor responsible for Plaintiff’s treatment, prescribed Plaintiff’s medications, and
determined Plaintiff’s necessary medical treatment; (3) Cheri Harvey, R.N. and (4) Patti
Booth, R.N., who were nurses also responsible for treating Plaintiff. (Doc. # 20 at 3-9.)
As relevant here, the undisputed facts establish that there were two ways to treat
Plaintiff’s Crohn’s disease: orally with a drug called methotrexate and intravenously
through injections into a device called an “infusaport,” which is implanted in a patient’s
chest. (Doc. ## 87-4, 87-6 at 12.) Health care providers may supplement either course
In light of Plaintiff proceeding pro se, this Court “review[s] his pleadings and other papers
liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States Govt., 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, this Court should not be the pro se litigant’s advocate, nor should this Court “supply
additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal
theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (citing
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
of treatment with pain relievers if necessary. See (Doc. ## 20 at 3, 9-12; 87-4; 87-6;
99 at 3-5.)
Defendants decided to treat Plaintiff’s disease with methotrexate and to provide
him with only over-the-counter pain relievers, such as Motrin. (Doc. ## 87-4, ¶ 8; 87-6
at 15; 87-18, ¶¶ 8-9.) Defendants also had Plaintiff’s infusaport surgically removed after
they saw Plaintiff picking at it and observed that the area around the infusaport had
become inflamed and bloody. (Doc. ## 87-6, ¶ 11; 87-13, ¶¶ 3-5.)
As a result, Plaintiff filed the instant lawsuit, arguing that the methotrexate-based
treatment was inappropriate, that Defendants acted improperly by failing to “flush” 2 his
infusaport, and that Defendants should have given him stronger (narcotic) pain
relievers. (Doc. ## 20 at 3-5; 87 at 9-10.) In turn, Defendants filed a summary
judgment motion, in which they argued there was no dispute that: (1) methotrexate was
an appropriate treatment course, (2) it was not necessary to flush the infusaport with
the frequency suggested by Plaintiff, and (3) that they were justified in removing the
infusaport because Plaintiff kept picking at the device. (Doc. ## 87 at 9-11; 87-6;
The Magistrate Judge decided that there were no genuine disputes of material
fact and that Defendants’ treatment course was appropriate and did not deny Plaintiff
his Constitutional protections. (Doc. # 96.) Plaintiff advances a number of objections to
the Magistrate Judge’s analysis which the Court discusses below. (Doc. ## 98, 99.)
The parties have not explained how one “flushes” an infusaport. While the process is left
undefined in briefing before this Court, it is not necessary to address the issues relevant to the
To prevail on his claim that Defendants’ medical care violated his constitutional
rights, 3 Plaintiff must show “acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134,
1143 (10th Cir. 2005). To establish deliberate indifference, Plaintiff must show that:
(1) objectively, he was deprived of a medical need that is “sufficiently serious,” and
(2) subjectively, Defendants knew of and disregarded “an excessive risk to [Plaintiff’s]
health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
Meeting this standard requires establishing more than mere negligence in
treatment. Indeed, “[m]edical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d
1134, 1143 (10th Cir. 2005). Relatedly, “a prisoner who merely disagrees with a
diagnosis or a prescribed course of treatment does not state a constitutional violation.”
Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 811 (10th Cir. 1999).
Finally, in reviewing Defendants’ motion for summary judgment, this Court must
determine whether the record discloses “no genuine issue as to any material fact.”
It is unclear whether Plaintiff’s claims are based on violations of the Eighth Amendment or the
Due Process Clause. The government alleges that Plaintiff was a pretrial detainee, and thus
cannot be subject to any form of “punishment” cruel and unusual or otherwise, under the Eighth
Amendment. Instead, pretrial detainees are protected under the Due Process Clause. See Bell
v. Wolfish, 441 U.S. 520, 535 & nn.16-17 (1979). At the same time, in any case, the source of
the constitutional protections makes little difference in this circuit: while “[p]retrial detainees are
protected under the Due Process Clause rather than the Eighth Amendment, . . . this Court
applies an analysis identical to that applied in Eighth Amendment cases brought pursuant to
§ 1983.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). Further, no matter
what the claim, it fails for the reasons that follow.
Fed. R. Civ. P. 56(c). The Court looks to the factual record and makes reasonable
inferences to be drawn in the light most favorable to the non-moving party. Sealock
v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The plaintiff must “go beyond the
pleadings and designate 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. “To defeat a motion for summary judgment, evidence, including
testimony, must be based on more than mere speculation, conjecture, or surmise.” Self
v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). In other words, “[u]nsubstantiated
allegations carry no probative weight in summary judgment proceedings.” Id.
The Magistrate Judge correctly applied this standard to the facts presented in the
record by the parties. See (Doc. # 96.) Defendants justified the medical decisions that
they took with regard to Plaintiff’s care by supplying affidavits that detailed the reasons
they opted for their preferred treatment course. (Doc ## 87-4, 87-15, 87-16, 87-22.)
In particular, they justified their decision not to use the infusaport because it was not
necessary for the treatment of Plaintiff’s disease and was impossible to administer by
the medical staff at the jail. (Doc. ## 87-4, ¶¶ 9-10; 86-6 at 16; 87-18, ¶¶ 10, 12.)
Defendants further established they needed to remove Plaintiff’s infusaport in light of
the inflammation and bleeding Plaintiff caused around the device and the infusaport
had become useless to Plaintiffs treatment regime. (Doc. ## 87 at 9-11, 87-6, 87-16.)
Finally, Defendants assert that Plaintiff’s pain was adequately treated by the over-thecounter pain relievers and that Plaintiff had a history of abusing drugs, including narcotic
medications, which precluded them from prescribing stronger opiate pain relievers.
(Doc. # 87-4, ¶¶ 5-6.)
Plaintiff provides nothing more than conclusory and speculative arguments
to dispute the justifications that Defendants offered for the decisions they took in
administering his medical care. This is insufficient for purposes of defeating this
summary judgment motion.
Moreover, Plaintiff’s objections to the Report and Recommendation are equally
unavailing. (Doc. ## 98, 99.) The Court considers each of these objections in turn. 4
First, Plaintiff suggests that he was prejudiced by the fact that Defendants
attached portions of his criminal record as exhibits to their summary judgment motion.
(Doc. # 98.) Plaintiff argues that these documents are irrelevant to determining whether
or not he was denied adequate medical care, and this evidence irrevocably prejudices
the manner in which this Court assesses his claims. (Id.)
Plaintiff is correct that his past criminal history is largely irrelevant to this Court’s
determination as to whether Defendants violated his constitutional rights. Plaintiff’s
evidentiary concerns about the prejudice caused by a prior criminal conviction are
not implicated at this stage of proceedings because no jury is called upon to weigh
evidence. Further, this Court is perfectly capable of separating the wheat from the
chaff in terms of relevant evidence: aside from confirming that Plaintiff is currently
incarcerated—which is necessary for determining the scope of his constitutional rights—
this Court has not considered this evidence for any other purpose and finds that the
type of crime for which Plaintiff was convicted is wholly irrelevant to the instant analysis.
Plaintiff’s presentation of his objections is rather disorganized—many arguments seem to
overlap and some are incomprehensible to this Court. What follows is this Court’s best attempt
to categorize Plaintiff’s objections.
Second, in his objections to the Recommendation, Plaintiff vaguely alleges that
he has evidence undermining many of the claims made by Defendants in their summary
judgment motion. (Doc. # 99 at 2.) He concludes that in light of this evidence it would
be improper to grant the motion. (Id.)
This argument also fails. The mere allegation that one possesses evidence that
undermines a claim made in a summary judgment motion is insufficient to create a
genuine dispute. Rather, as noted above, “[u]nsubstantiated allegations carry no
probative weight in summary judgment proceedings.” Crum, 439 F.3d at 1230. The
same holds true for unsubstantiated (and vague) allegations about evidence disproving
a claim made by Defendants.
Third, Plaintiff attacks the basis for Defendants’ determination that he could not
receive pain medication: in Plaintiff’s telling, Dr. Kaplan received this information from a
doctor whom Plaintiff had previously “fired” for not doing her job in treating his Crohn’s
disease. (Doc. # 99 at 2-5.) Plaintiff concludes that the other doctor’s assessment of
his addiction to pain medication should be accorded little weight because of her alleged
This argument is also unpersuasive. Even assuming that Dr. Kaplan’s basis for
not providing stronger pain medication was insufficient, Plaintiff has not demonstrated
that his need for the stronger medication was “sufficiently serious” or the failure to
prescribe this medication caused an “excessive risk” to Plaintiff’s health or safety.
Further, Plaintiff has not established that Defendants “knew of” and disregarded the
apparent risk created by the failure to prescribe narcotics.
Fourth, Plaintiff argues that the reason his infusaport was not flushed while he
was in jail was because the nurses lacked the proper qualifications and that,
accordingly, he should have been sent to a different facility with medical personnel
capable of performing the flushing procedure. (Doc. # 99 at 9-11.) Defendants
concede—and the evidence establishes—that they were unable to flush the infusaport
themselves and did not have the resources to send Plaintiff to a different facility for this
procedure; thus, Plaintiff’s port was not immediately flushed upon request. See (Doc.
## 87-6 at 16; 87-16.) Plaintiff appears to argue that Defendants’ failure to follow this
course of conduct—and to remove the port rather than continue to use it—violated his
constitutional rights. (Doc. # 20 at 3-10.)
This argument does little for Plaintiff because he has merely established that he
“disagrees with a diagnosis or a prescribed course of treatment,” which is insufficient to
establish a constitutional violation. Perkins, 165 F.3d at 811. However, Plaintiff has
failed to establish that the failure to flush the port was “sufficiently serious” or exposed
Plaintiff to excessive risk, such that he was deprived of his constitutional rights.
Relatedly, the undisputed evidence establishes that Defendants’ decision to
remove Plaintiff’s infusaport did not expose Plaintiff to risks that would cause a
constitutional violation. In light of Defendants’ inability to flush the port, Defendants
devised a plan for the maintenance of the port. (Doc. # 87-6 at 16.) During this time,
Plaintiff did not report any pain or symptoms as a result of his port not being flushed.
See (Doc. ## 20, 87-6.) As soon as Defendants noticed redness and swelling, they
promptly removed the port. (Doc. ## 87-4, ¶ 11-12; 87-16.) Following the removal of
the port, Defendants properly cared for Plaintiff by frequently inspecting the removal
site, and prescribing antibiotics as a precaution to prevent infection. (Doc. ## 87-4,
¶ 13-14; 87-15.)
In sum, Plaintiff raises no genuine, material dispute to the quality of his care
before or after the surgical removal of the infusaport.
Accordingly, it is hereby ORDERED that Plaintiff’s objections (Doc. ## 98, 99)
are OVERRULED, it is
FURTHER ORDERED that Plaintiff’s Motion for an Extension to File Objections
to Recommendation of Summary Judgment by Recommendation of United States
Magistrate Judge (Doc. # 97) is DENIED as moot, it is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Boyd N. Boland (Doc. # 96) is AFFIRMED and ADOPTED as an Order of this
Court. Pursuant to the Recommendation, it is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc.
# 87) is GRANTED, it is
FURTHER ORDERED that the claims against Defendant are DISMISSED WITH
PREJUDICE, it is
FURTHER ORDERED that the case is DISMISSED in its entirety.
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?