United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS United States District Judge
magistrate judge filed a report on February 2, 2017,
recommending that the Defendants' motion for summary
judgment (doc. 26) be granted and that the Plaintiff's
claims against all Defendants be dismissed with prejudice.
Although the parties were advised of their right to file
specific written objections within fourteen (14) days, on the
date that this Court adopted the magistrate's
recommendation, February 28, 2017, no objections appeared in
the record. Thereafter, on March 8, 2017, this Court entered
an Order which, among other things, stated:
On February 24, 2017, the court received a motion for
extension of time from the plaintiff (doc. 50), wherein he
sought additional time to file objections to the Report and
Recommendation, entered by the magistrate judge on February
2, 2017. (Doc. 47). Because the plaintiff failed to include a
case number on his motion, the clerk's office was unable
to ascertain the proper case in which to file his motion, and
returned the motion to the plaintiff. (Doc. 50). On February
28, 2017, having received no objections, the court entered a
Memorandum Opinion and Final Judgment granting the
defendants' motion for summary judgment and dismissing
this action with prejudice. (Docs. 48 & 49). On March 6,
2017, the court received a letter from the plaintiff stating
he had asked for an extension of time to respond to the
Report and Recommendation. (Doc. 51). In that letter, he
provided the case number for the Clerk to locate his case.
(Id.). At that point, the plaintiff's motion for
extension of time was located and docketed in this case.
(Doc. 52 at 1-2). The undersigned treated the Plaintiff's
letter as a motion to alter or amend judgment pursuant to
Rule 59(e), Fed. R. Civ. p., and to reopen the case to allow
the Plaintiff an opportunity to file objections. That motion
was granted. (Doc. 52 at 2).
5, 2017, the Plaintiff filed objections to the
magistrate's recommendation. In those objections, the
Plaintiff stated that he wished to "withdraw the
following d[e]fendants from this present action . . .:
Herrell Watts [and] W.T. Taylor." (Doc. 55 at 1).
Accordingly, the Plaintiff is only objecting to the
magistrate's recommendation to the extent that he
recommended that summary judgment be granted as to Dr.
conducted a de novo review of the entire file,
including the report and recommendation, and the objections
thereto, the Court is of the opinion that the
magistrate's recommendation is due to be, and hereby is,
ADOPTED and ACCEPTED as the opinion of this Court. Although
the Plaintiff objects to the magistrate's legal analysis
and recommendation to the extent that it finds that Dr.
Burrell is entitled to immunity, the magistrate is correct.
The Court specifically holds that Dr. Burrell, as an employee
of the U.S. Public Health Service, is entitled to immunity
for the constitutional violations alleged against her in this
action. 42 U.S.C.A. § 233(a); Hui v. Castaneda,
559 U.S. 799, 802, 130 S.Ct. 1845, 1848, 176 L.Ed.2d 703
(2010) ("PHS officers and employees are not personally
subject to Bivens actions for harms arising out of
[their performance of a medical or related function]".)
The Plaintiffs objections are accordingly OVERRULED.
judgment will be entered by separate order.
TO PRISONERS CONCERNING CIVIL APPEALS
Prison Litigation Reform Act of 1995 (effective April 26,
1996) now REQUIRES that all prisoners pay the
Court's $500 docket fee plus $5 filing fee (for a total
of $505) when appealing any civil judgment.
wish to appeal in a civil case that Act now requires that
upon filing a notice of appeal you either:
(1) Pay the total $505 fee to the clerk of the district court
from which this case arose; or
(2) arrange to have a prison official certify to the district
court from which the appeal arose the average
monthly deposits and balances in your prison account for each
of the six months preceding the filing of a notice of appeal.
proceed with option (2) above, the Act requires that the
district court order you to pay an initial partial
fee of at least 20% of the greater of
either the average monthly deposits or of the
average monthly balances shown in your prison
account. The remainder of the total $505 fee will thereafter
be deducted from your prison account each month that your
account balance exceeds $10. Each such monthly deduction
shall equal 20% of all deposits to your prison account during
the previous month, until the total $505 fee is paid. (If
your prison account statement shows that you cannot pay even
the required initial partial fee, your appeal may
nevertheless proceed, BUT THE TOTAL $505 FEE WILL BE ASSESSED
AGAINST AND WILL BE DEDUCTED FROM FUTURE DEPOSITS TO YOUR
are not refundable, regardless of outcome, and deductions
from your prison account will continue until the total $505