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Kelly v. Ambroski

United States District Court, N.D. Alabama, Southern Division

March 31, 2015

ERIC KELLY, Plaintiff,
MS. AMBROSKI, et al., Defendants

Order Filed: February 2, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Eric Kelly, Plaintiff, Pro se, Harvest, AL.

For Ms. Ambroski, Corizon Medical, Hugh Hood, DeWayne . Estes, Jimmy Patrick, Defendants: Philip G Piggott, STARNES DAVIS FLORIE LLP, Birmingham, AL.

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In his report and recommendation, the Magistrate Judge recommended that the undersigned District Judge grant the defendants' motions for summary judgment. (Doc. 48). Mr. Kelly filed objections to the report and recommendation. (Doc. 49). For the reasons stated below, the Court adopts the Magistrate Judge's report and accepts his recommendation.


When reviewing a magistrate judge's report and recommendation, a district court must " make a de novo determination of those portions of the report or specified

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proposed findings or recommendations to which objection has been made." 28 U.S.C. § 636(b)(1). When a party specifically objects to portions of the report and recommendation, the district judge must " give fresh consideration to those issues." Jeffrey S. by Ernest S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R. Rep. No. 94--1609, reprinted in 1976 U.S.C.C.A.N. 6162, 6163). The district court reviews for clear error the portions of the report and recommendation to which no party has objected. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006). The district court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).


A. Referral to a Magistrate Judge

As a preliminary matter, Mr. Kelly argues that it was " unconstitutional and error for this court to refer his case to a magistrate [judge]." (Doc. 48 at 2). He complains that he did not knowingly waive his right to have his case heard before an Article III judge and did not consent to his case being assigned to a magistrate judge. ( Id. at 1-13). Mr. Kelly misunderstands the referral process. A district court has statutory authority to delegate prisoner petitions challenging conditions of confinement to a magistrate judge for initial consideration. See 28 U.S.C. § 636(b)(1)(B). The district court does not have to obtain the consent of the parties before referring these matters to a magistrate judge. 28 U.S.C. § 636(b)(1). Absent unanimous consent, a magistrate judge cannot issue a final judgment. Instead, the magistrate judge must issue a report and recommendation, and a district judge must review the review the report and recommendation, the evidence in the record, and the parties' objections to the report and recommendation before the district judge issues a final judgment.

That is what happened here. The District Court referred Mr. Kelly's case to Chief Magistrate Judge Ott. Chief Magistrate Judge Ott oversaw the initial procedural matters in the case. Then, because the parties did not unanimously consent to have him decide the case, Chief Magistrate Judge Ott issued a thorough, 42 page report and recommendation. In that report, the Magistrate Judge reviewed Mr. Kelly's allegations and the evidence in the record in the light most favorable to Mr. Kelly and evaluated the allegations and the evidence through the lens of binding Eleventh Circuit precedent. The undersigned, in turn, reviewed the entire record, including the report and recommendation and Mr. Kelly's objections, and the undersigned will issue a dispositive ruling.

Therefore, the Court OVERRULES Mr. Kelly's objection to the Court's referral of this case to a magistrate judge.

B. The Merits of Mr. Kelly's Claims

In his objections, Mr. Kelly argues that Chief Magistrate Judge Ott " distorted and misstated" his claims concerning the seriousness of his medical condition. (Doc. 49 at 20). The Court disagrees. The Magistrate Judge viewed the facts in the light most favorable to Mr. Kelly. (Doc. 48 at 4). For example, in the " Summary Judgment Facts" portion of the report and recommendation, the Magistrate Judge stated:

The plaintiff suffers extreme back pain and has trouble walking even with the aid of a cane. (Doc. 32 at 19). He is unable to stand or sit for any extended period of time because of his back pain. ( Id.). The plaintiff has trouble standing in the shower to bathe, and suffers pain walking to and from the Health Care Unit, canteen, store, and kitchen. ( Id. at 20).

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The plaintiff no longer receives narcotic pain medication and the pain mediation he is now prescribed is of little or no help. ( Id.). He is unable to sleep and suffers anxiety for fear of incurring irreparable nerve damage. ( Id.).

(Doc. 48 at 24). Mr. Kelly has not explained how the above description misrepresents his medical condition. Viewing the record in the light most favorable to Mr. Kelly, the Magistrate Judge's description of the seriousness of Mr. Kelly's medical condition is accurate.

The record demonstrates that Mr. Kelly's constant back pain constitutes a serious medical need, but the record does not indicate that the defendants have been deliberately indifferent to that need. Mr. Kelly's medical records reveal that prison medical staff routinely examined him for his complaints of back pain, prescribed pain medication, and referred him to outside specialists. ( See, e.g., Doc. 37-1, pp. 17, 22, 26-35). Although Mr. Kelly disagrees with Dr. Hood and Ms. Amborski's determination that he is not an appropriate candidate for back surgery, a " difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis and course of treatment [does not] support a claim of cruel and unusual punishment." [1] Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).

The Magistrate Judge properly stated the applicable legal standards in this case, and his finding that Mr. Kelly's evidence falls short is not in error. Mr. Kelly has not " place[d] verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment." Hill v. DeKalb Reg'l Youth Detention Ctr., 40 F.3d 1176, 1186-87 (11th Cir. 1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In fact, Mr. Kelly's objective medical records suggest that the mild disc bulge for which he requests surgery has changed little over the years. For example, a report from an MRI that Mr. Kelly had in January 2014 states: " Well preserved lumbar spine structures. No new interval change detected as compared to the previous examination of March 2012. I have reviewed back even to an older examination of December 2009 and no new interval change is detected." (Doc. 37-1, p. 39). Dr. Hood and Ms. Amborski have relied upon the opinions of physicians who have determined that Mr. Kelley's back pain is related to a stroke that he suffered years ago rather than the bulging disc in his back. ( See, e.g. Doc. 31-1, p. 13). Therefore, the treatment that Mr. Kelly has received is not inadequate under the law.[2]

Mr. Kelly objects because the Magistrate Judge did not allow him to conduct discovery before the Magistrate Judge issued a report and recommendation on the defendants' motions for summary judgment. (Doc. 49 at 15). In the Order for

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 Special Report, the Magistrate Judge directed the defendants to submit a written report accompanied by the sworn statements of all persons having knowledge of facts relevant to Mr. Kelly's claims or any subsequent investigation undertaken with respect to the claims. (Doc. 36 at 6). The Magistrate Judge also directed the defendants to submit a clear and legible copy of all documents relevant to the claims or defenses asserted in the action, including all incident reports, disciplinary reports, classification or custody records, and medical records, as may bear directly on the claims or defenses asserted. ( Id. at 7). On April 2, 2014, defendants Corizon, Hood, and Amborski filed a Special Report which included Dr. Hood's affidavit regarding Mr. Kelly's medical care and Mr. Kelly's relevant medical records. (Doc. 33). On June 9, 2014, defendants Corizon, Hood, and Amborski supplemented their Special Report with additional medical records for Mr. Kelly. (Doc. 37-1).

In his opposition to the defendants' Special Report, Mr. Kelly seemed to argue that through discovery, he would have obtained medical records from Dr. Lampley, Dr. Crocker, Mr. Francavilla, Dr. Mosley, Dr. Grant, Dr. Pouparinas, and Dr. Falkman. (Doc. 47, pp. 10-14). Mr. Kelly contends that these physicians recommended surgery or injections for his back pain, and Dr. Hood denied or overruled these recommendations. Although the medical records from these physicians do not appear in the court record, crediting Mr. Kelly's allegations as true, the Magistrate Judge assumed that Mr. Kelly visited the doctors as described in the amended complaint. Based on Mr. Kelly's allegations, the Magistrate Judge recited in detail the recommendations that these physicians purportedly made regarding surgery or injections. ( See Doc. 48, pp. 8-12). Assuming these medical records exist, as the Magistrate Judge did, discovery may have given Mr. Kelly an opportunity to review the documents before filing his opposition to the Special Report; however, the records would not have changed the Magistrate Judge's legal analysis of Mr. Kelly's claims because the Magistrate Judge gave Mr. Kelly the benefit of the doubt in his assessment of Mr. Kelly's medical and treatment history. Therefore, Mr. Kelly was not prejudiced by the lack of an opportunity to conduct discovery regarding these records.


Having carefully reviewed and considered de novo all the materials in the Court file, including the report and recommendation and Mr. Kelly's objections, the Court adopts the Magistrate Judge's report and accepts his recommendation. The Court FINDS that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law. Accordingly, the Court will grant the defendants' motions for summary judgment and dismiss this action WITH PREJUDICE. A Final Judgment will be entered.


In accordance with the Memorandum of Opinion entered contemporaneously herewith and with Rule 58, Fed. R. Civ. P., it is hereby ORDERED, ADJUDGED, and DECREED that the defendants' motions for summary judgment are GRANTED and this action is DISMISSED WITH PREJUDICE.

Costs are taxed to the plaintiff.

For information regarding the cost of appeal, see the attached notice.


JOHN E. OTT, Chief United States Magistrate Judge.

The plaintiff, Eric Kelly, initiated this action by filing a pro se amended complaint

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pursuant to 42 U.S.C. § 1983, alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged during his incarceration at Limestone Correctional Facility in Harvest, Alabama. The plaintiff names as defendants Corizon, LLC, Dr. Hugh Hood, Registered Nurse Karen Amborski, Warden Dewayne Estes, and Assistant Warden Jimmy Patrick.

In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the amended complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

I. Procedural History

On May 28, 2014, the court entered an Order for Special Report, directing that a copy of the amended complaint in this action be forwarded to the defendants and requesting that they file a Special Report addressing the factual allegations of the plaintiff's amended complaint. (Doc. 36). The court advised the defendants that the Special Report should be accompanied by sworn statements and, if appropriate, would be considered as a motion for summary judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. ( Id. ). By the same order, the court advised the plaintiff that after he received a copy of the Special Report submitted by the defendants, he should file counter-affidavits if he wished to rebut the matters presented in the Special Report. ( Id. ).

On April 2, 2014, Defendants Corizon, Hood, and Amborski filed a Special Report, accompanied by an affidavit and medical documents. (Doc. 33). On June 9, 2014, Defendants Corizon, Hood, and Amborski supplemented their Special Report with additional medical documents. (Doc. 37). On July 8, 2014, Defendants Estes and Patrick filed a Special Report which included affidavits. (Doc. 41).

The magistrate judge notified the plaintiff that the defendants' Special Reports would be construed as motions for summary judgment and he would have twenty (20) days to respond by filing affidavits and other material if he chose. (Doc. 45). The magistrate judge also advised the plaintiff of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff filed several responses to the defendants' motions for summary judgment. (Docs. 35, 42, & 47).

II. Summary Judgment Standard

In considering a motion for summary judgment, the court must determine whether the moving party is entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530, 1532-33 (11th Cir. 1990).

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As the Eleventh Circuit Court of Appeals has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prime facie case. " In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

Bennett v. Parker, 898 F.2d at 1532 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, any " specific facts" pled in a pro se plaintiff's sworn complaint must be considered in opposition to summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986).

III. Summary Judgment Facts

Based on the foregoing summary judgment standard, the following facts are undisputed or, if disputed, taken in a light most favorable to the plaintiff.

While housed at Bibb Correctional Facility in 2002, the plaintiff fell approximately five feet from his top bunk and injured his back. (Doc. 32 at 8; Doc. 33-1 at 27).[1] The plaintiff was later transferred to Limestone Correctional Facility. (Doc. 32 at 8).

On January 25, 2007, the plaintiff was seen by Salah Uddin, a general neurologist, at the Carraway Neurology Center. (Doc. 33-1, Hood Aff. at 3; Doc. 33-1 at 32). Dr. Uddin stated as follows:

Mr. Kelly is a 41 year old right handed gentleman, who was being evaluated by Dr. Caudill Miler [sic], a neurologist at Bibb Correctional Facilities. The patient was being evaluated with an MRI of the C-spine, T-spine, and lumbosacral spine without significant findings. Clinically reviewing the office notes of Dr. Miler [sic], the patient has some spastic findings in his lower extremities without any radiological findings of cord compression. He also had bilateral axillary masses reviewed with biopsy that showed for possible sarcoidosis because of granulomatous noncaseating lymphadenitis. His work-up including RPR was negative. The patient was complaining of pain in his right side of his back as well as knee and ankle joints with some myoclonic type of movement since 2002. This is somewhat worse towards the right than the left. He denied any bowel or bladder dysfunction or any injury to his back. He was also being evaluated with B12 as well as HIV test, which were all within normal limits.

The patient denied any muscle twitching or muscle wasting over the last five years since 2002. He also denied having any trouble with speech or swallowing.

( Id. ).

Dr. Uddin concluded that the plaintiff did not have enough features to be suggestive of motor neuron disease such as lateral sclerosis. (Doc. 33-1 at 34).

However, Dr. Uddin stated that he would conduct an EMG and nerve conduction test on the plaintiff to rule out the diagnosis. ( Id. ). Dr. Uddin also noted that he would rule out radiculopathy. ( Id. ). On April 9, 2007, Dr. Miller examined the plaintiff for his back pain. (Doc. 33-1 at 31). Dr. Miller noted that the plaintiff had no signs of Lou Gehrig's disease but that it could take several years to differentiate. ( Id. ). Dr. Miller questioned whether the plaintiff had sarcoid which should be

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evaluated by internal medicine. ( Id. ). Dr. Miller stated that the plaintiff did not have the classic features of neurosarcoidosis other than his hyper reflexia and spastic gait. ( Id. ). On the same day, Dr. Miller recommended to Dr. James Whitley at Bibb Correctional Facility that the plaintiff have a sarcoid evaluation, including chest x-ray, ACE level, and a lumbar puncture. (Doc. 33-1 at 30). Dr. Miller also prescribed the plaintiff Lyrica 75 mg for his pain. ( Id. ).

On October 9, 2007, Dr. Miller examined the plaintiff again. (Doc. 33-1, Hood Aff. at 4; Doc. 33-1 at 29). The plaintiff stated that he felt weaker and was having back pain. (Doc. 33-1 at 29). He also complained that Naprosyn made him ...

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