57 F3d 1080 Levstik v. Colorado Doc Doc

Daniel LEVSTIK, Plaintiff-Appellant,
v.
COLORADO, State of; Department of Corrections, Colorado;
Aristedes Zavaras, Director; Mark McGoff, Warden, Canon
Minimum Complex; Joe Lippis, Farm Manager, Skyline
Correctional Facility; Ray Englund, Physician Assistant,
DOC, Skyline Correctional Facility; Cathy Clemens,
Registered Nurse, DOC, Skyline Correctional Facility,
Defendants-Appellees.

No. 94-1560.
(D.C. No. 94-M-1059)

United States Court of Appeals, Tenth Circuit.

June 20, 1995.

57 F.3d 1080
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE, BARRETT, and EBEL, Circuit Judges.


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1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

2

This is an appeal from an order granting defendants' motion for summary judgment. Plaintiff Daniel Levstik, an inmate of the Colorado Department of Corrections, filed a pro se complaint under 42 U.S.C.1983 alleging the defendants denied him adequate medical care resulting in cruel and unusual punishment within the ambit of the Eighth Amendment. Defendants responded with a motion for summary judgment, supported by an affidavit, and an exhibit containing many pages of medical records demonstrating treatment accorded Mr. Levstik. The magistrate judge to whom the case was assigned recommended the motion be granted, and after the filing and consideration of plaintiff's objection, the district court adopted the magistrate's recommendation.

3

Plaintiff's brief in this court contends the district court erred because Mr. Levstik "has been and continues to be denied adequate and proper medical treatment that rises to the level of deliberate indifference to the medical needs of this plaintiff." Neither the brief nor the record supports this conclusory argument. Indeed, as noted by the magistrate, Mr. Levstik's contention is with the nature of the care he has received, not the failure of care. His contention, however, does not establish the existence of deliberate indifference. Finding no error, we AFFIRM for the reasons stated in the recommendation of the United States Magistrate Judge.

4

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1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470.