United States District Court, N.D. Alabama, Middle Division
Scott Coogler United States District Judge.
magistrate judge filed a report on August 11, 2017,
recommending the plaintiff's “Motion to Reply of
Medical” (Doc. 31) be denied as untimely filed. (Doc.
32 at 2-3). The magistrate judge further recommended the
defendants' special reports be treated as motions for
summary judgment and that the motions be granted.
(Id. at 33). On August 25, 2017, the plaintiff filed
a document titled “Special Report, ” which the
court construes as a request for appointment of counsel and
objections to the report and recommendation. (Doc. 33).
plaintiff's request for appointed counsel (id.
at 1) is DENIED. As the magistrate judge set
forth in her January 10, 2017 denial of the same request:
‘Appointment of counsel in a civil case is not a
constitutional right. It is a privilege that is justified
only by exceptional circumstances, such as where the facts
and legal issues are so novel or complex as to require the
assistance of a trained practitioner.'
(Doc. 28 at 1) (quoting Fowler v. Jones, 899 F.2d
1088, 1096 (11th Cir. 1990)). The legal and factual issues in
this case are not unique or complex, and the plaintiff has
been able to litigate this action pro se.
plaintiff points to no factual or legal error in the report
as to the Eighth Amendment claim against Defendant Hamby.
Instead, he argues her motion for summary judgment should be
denied because Defendant Hamby was the Health Services
Administrator at the time of all his complaints about
inadequate health care at St. Clair Correctional Facility
(“SCCF”). (Doc. 33 at 1). The plaintiff's
objections are OVERRULED. “It is well
established in this circuit that supervisory officials are
not liable under § 1983 for the unconstitutional acts of
their subordinates on the basis of respondeat superior or
vicarious liability.” Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir. 1999) (internal quotation marks
and citation omitted).
plaintiff also attests there is “no way” Dr.
Wilson “can block an[d] refuse to send” him to a
specialist off-premises for the purpose of reading the
plaintiff's MRI and repairing his right knee and a tear
to his right shoulder rotator cuff. (Doc. 33 at 1). In
support of this objection, the plaintiff states his right
knee is “locked” (i.e., he is unable to
bend it) and he has been in pain from a rotator cuff injury
for over 60 days that renders him unable to brush his teeth
with his right hand because it is in a sling. (Id.
addressing his back problems, which are causing foot swelling
and numbness, and his neck ailments, the plaintiff asserts
Dr. Wilson has “no knowledge” of Dr. Blake
Pearson, the Brookwood Hospital specialist who performed two
of his three lumbar spine surgeries. (Id.). The
plaintiff also points to a stomach illness and contends the
current Health Services Administrator and Director of Nursing
dislike him, are not concerned about his health, and choose
to side with Dr. Wilson. (Id. at 2).
the current objections, the plaintiff never complained he
could not bend his knee or that his feet were swollen.
Moreover, the plaintiff's torn rotator cuff and stomach
illness are not the factual basis of his Eighth Amendment
claims against any defendant. The current Health Services
Administrator and Director of Nursing are not named
defendants. Because the report and recommendation instructed
the plaintiff that his “[o]bjections should not contain
new allegations, present additional evidence, or repeat legal
arguments” (Doc. 32 at 33-34), these objections are
plaintiff's conclusory assertion of foot numbness, which
by all evidentiary accounts is related to his back pain,
does not convince the court that the magistrate judge made
any legal or factual errors in the report and recommendation.
(Doc. 32 at 10-13, 23-27). As such, this objection is
plaintiff does not object to the recommendation that Dr.
Wilson be granted summary judgment as to his claim that
Wilson was deliberately indifferent to his serious pain needs
by refusing to prescribe Ultram (a.k.a. Tramadol).
(See Doc. 32 at 20, 26, 29-30) (reporting that the
evidence supporting the claim amounted to a nonactionable
difference of opinion between the plaintiff and Dr. Wilson as
to whether the plaintiff should be prescribed narcotic pain
relief). Although the magistrate judge reported that the
plaintiff's January 31, 2017 response to the
defendants' motions for summary judgment was untimely
(Doc. 32 at 2 (citing Doc. 29)), it appears the response was,
in fact, timely because the plaintiff was afforded until
February 10, 2017, to file it. (Doc. 28 at 2). The plaintiff
failed to object to this miscalculation. Further, the court
finds the plaintiff's assertions contained in the
plaintiff's January 31, 2017 response are without merit
for the reasons explained in the report and recommendation
magistrate judge set out the content of the January 31
response in the report and recommendation. The bulk of the
plaintiff's response is repetitious or contains
irrelevant testimony regarding the quality of a pillow and
mattress and an adverse reaction to the plaintiff's heart
medication. (Doc. 32 at 18 (citing Doc. 29 at 1-5)). The
plaintiff did attest that sometime between mid-October 2016
and January 2017, Dr. Wilson began prescribing him Tramadol,
Neurontin, and Tylenol daily for pain relief. (Id.).
The plaintiff expressed serious concern that all medications
except Tramadol would adversely affect his liver function (he
suffers from Hepatitis-C), but Wilson refused to increase the
Tramadol prescription and reduce the remaining medications.
(Id.). In the report and recommendation, the
magistrate judge described this conflict as a disagreement
the amount of narcotics, as opposed to nonopioid medication,
prescribed. Although the plaintiff expresses concern about
taking Tylenol or Neurontin because he suffers from Hepatitis
C (Doc. 29 at 4), he does not attest that Wilson fails to
monitor his liver condition or declare that his liver has
deteriorated, and he does not deny ...