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Giles v. Hamby

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

September 13, 2017

MS. E. HAMBY, et al., Defendants.


          L. Scott Coogler United States District Judge.

         The 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).

         The 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.

         The 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).

         The 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. at 1-2).

         In 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).

         Until 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.[1] 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 OVERRULED.

         The plaintiff's conclusory assertion of foot numbness, which by all evidentiary accounts is related to his back pain, [2] 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 OVERRULED.

         The 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 and below.

         The 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 about

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 ...

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