United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
December 21, 2016, the magistrate judge entered a report in
which he recommended that the Court grant the defendants'
motion for summary judgment. (Doc. 32). After three requests
for extensions of time, plaintiff Norell Montrail Swain filed
objections to the report and recommendation on March 14,
2017. (Doc. 39).
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984); Macort v. Prem, Inc., 208 Fed.Appx. 781, 784
(11th Cir. 2006).
objections, Mr. Swain argues that the magistrate judge
wrongfully denied his motion to conduct additional discovery.
Mr. Swain contends that evidence obtained in discovery would
have supported his claims. (Doc. 39, pp. 2, 5). Mr. Swain
does not dispute that his motion for discovery was deficient
because he did not state how the disclosures provided by the
defendants in their Special Report were inadequate to provide
the information sought in his motion. (See Doc. 25,
pp. 1-2). In addition, Mr. Swain does not dispute that his
motion for discovery was untimely because he did not file the
motion within 30 days from the date of the Special Report.
(Id. at 2). Therefore, the Court finds that the
magistrate judge did not abuse his discretion in denying Mr.
Swain's motion for additional discovery.
Swain also objects that the magistrate judge wrongfully
denied him appointment of counsel. (Doc. 39, pp. 2, 5). The
magistrate judge's denial of Mr. Swain's motion for
appointment of counsel was appropriate because there is no
constitutional right to counsel in a civil case, and Mr.
Swain's claims are neither novel nor complex. See
Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999);
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.
1990); Vickers v. Georgia, 567 Fed.Appx. 744, 749
(11th Cir. 2014). Mr. Swain presented thorough arguments in
his brief in opposition to the defendants' motion for
summary judgment (Doc. 30) and in his objections to the
report and recommendation (Doc. 39).
Swain also objects that the magistrate judge refused to
consider his sworn affidavit (Doc. 24, pp. 13-21) in
opposition to the defendants' motion for summary
judgment. (Doc. 39, p. 2). The record demonstrates that the
magistrate judge repeatedly cited and relied on Mr.
Swain's affidavit. (Doc. 32, pp. 5-9, 11-13, 19-20, 22).
Swain next objects to defendant Price's affidavit because
he did not receive a copy of it. (Doc. 39, p. 4). Mr. Swain
states that he notified the Court that he had not received a
copy of Mr. Price's affidavit. (Id.). The Court
has reviewed the submissions that Mr. Swain filed after the
defendants filed their Special Report on March 29, 2016.
(Docs. 24, 26, 27, 30, 33, 35, 37). On May 19, 2016, Mr.
Swain filed a “Rule 56(d) Motion, ” in which he
stated that he “cannot present facts essential to
justify opposition to the defendant[s'] motion for
summary judgment.” (Doc. 24, p. 1). Mr. Swain moved for
leave to file written interrogatories and requests for
production. (Id.). Mr. Swain sought production of
documents from Investigations & Intelligence (“I
& I”) concerning the assault on August 31, 2015,
Sergeant Antione Price's “sworn affidavit of
knowledge of the incident, ” and reports from
physicians at UAB concerning his eye condition. (Doc. 24, p.
7). Mr. Swain did not specifically state in his motion, or
anywhere else, that Mr. Price's affidavit was not
included in the defendants' Special Report.
(Id.). The magistrate judge construed Mr.
Swain's motion as one for discovery. (Doc. 25, p. 2). The
magistrate judge informed Mr. Swain that the defendants had
filed a Special Report which included affidavits and
institutional documents. (Id. at 1). The magistrate
judge denied Mr. Swain's discovery motion because he (Mr.
Swain) did not state how the disclosures provided in the
defendants' Special Report were inadequate to provide the
information sought in the discovery motion. (Id. at
2). Again, Mr. Swain failed to specifically notify the Court
that Mr. Price's affidavit was not included in the
Mr. Swain has not been prejudiced due to the omission of Mr.
Price's affidavit from the Special Report. First, the
magistrate judge cited Mr. Price's affidavit for facts
that are neither in dispute nor material to summary judgment.
(Doc. 32, pp. 4-5). Additionally, the magistrate judge's
conclusion that the defendants were not deliberately
indifferent to Mr. Swain's safety is well supported by
other evidence in the record aside from Mr. Price's
affidavit. (See Doc. 32, pp. 16-24).
objections, Mr. Swain restates his claims that defendants
Peterson and Price were deliberately indifferent to his
safety. (Doc. 39, pp. 2-5). However, there is no evidence
that defendants Peterson and Price knew that inmate Johnson
would violate the Living Agreement and attack Mr. Swain.
Moreover, Mr. Swain's claim that inmate Johnson was not
in his “right mind” when he signed the Living
Agreement and defendant Peterson and Price should have known
that Johnson would violate the agreement is speculative and
not supported by the evidence. (Doc. 39, p. 4).
Swain further claims that inmate Johnson attacked him again
on August 31, 2015, about 35 or 45 minutes after he notified
defendants Gilbert, Thrasher, and Godsey that Johnson had
threatened him and assaulted him the day before. (Doc. 39, p.
7). The undisputed evidence shows that defendants Gilbert,
Thrasher, and Godsey were in the process of investigating Mr.
Swain's claims and reviewing the incident reports and
other institutional documents, including the body charts and
Living Agreement, when Johnson attacked Mr. Swain. (Doc. 24,
p. 17, Swain Aff.; Doc. 21-3, Gilbert Aff. at 1; Doc. 21-5,
Thrasher Aff. at 2; Doc. 21-4, Godsey Aff. at 2-3). Thus, Mr.
Swain has not demonstrated that these defendants were
deliberately indifferent to his safety at the time of the
attack. Mr. Swain claims that the officers were not
investigating his claims (Doc. 39, pp. 6-7), but he has no
personal knowledge of this alleged fact because he left the
shift office and was walking with Officers Keyes, Steele, and
Sanders when Johnson attacked him outside of Captain
Tew's office. (Doc. 24, pp. 18-19). While defendants
Gilbert, Thrasher, and Godsey may have been aware at the time
that Johnson posed a significant risk of harm to Mr. Swain,
the record contains no evidence demonstrating that they were
deliberately indifferent to Mr. Swain's safety.
carefully reviewed and considered de novo all the materials
in the record, including the report and recommendation and
Mr. Swain's objections, the Court overrules Mr.
Swain's objections. The Court adopts the magistrate
judge's report and accepts his recommendation.
Accordingly, the Court grants the defendants' motion for
summary judgment. The Court will enter a separate final