United States District Court, N.D. Alabama, Jasper Division
ROY M. CANNON, Plaintiff,
CORIZON MEDICAL SERVICES, et al., Defendants.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
magistrate judge filed a report on October 29, 2018,
recommending that the plaintiff's Eighth Amendment
medical claims against Nurses Alexander, Coleburn, and
McDougle be dismissed without prejudice. (Doc. 65). The
magistrate judge further recommended that the motions for
summary judgment filed by Corizon, LLC, Dr. Hood, and Nurses
Amborski, Clay, Bryant, Bunn, and Thurmon be granted and the
plaintiff's Eighth Amendment medical claims against these
defendants be dismissed with prejudice. (Id.). The
plaintiff filed objections to the report and recommendation
on November 8, 2018. (Doc. 66).
plaintiff first objects to the dismissal of his claims
against Nurses Coleburn, Alexander, and McDougle. (Doc. 66 at
1-3). The plaintiff does not dispute Corizon's assertion
it has never employed a Nurse Coleburn. (See Doc.
50). The plaintiff also does not dispute he failed to comply
with or otherwise respond to the magistrate judge's order
dated February 12, 2018, directing him to correctly identify
this defendant within twenty days and notifying him that
failure to comply within the time prescribed could result in
the dismissal of the defendant. (See Doc. 52).
Because the plaintiff failed to correctly identify the
defendant he refers to as Nurse Coleburn, or otherwise
respond to the magistrate judge's order, his claims
against this defendant are due to be dismissed without
prejudice. See Fed. R. Civ. P. 41(b).
plaintiff fails to adequately dispute Corizon's claim it
never employed a Nurse Karen Alexander but did employ a Mary
Alexander. (See Doc. 51). Instead, the plaintiff
maintains a nurse named Karen Alexander was at the prison.
(Doc. 66 at 2). He states, “she may have been name[d]
Mary Kartherin[e] Alexander which in turn wa[s] [called]
Karen. The plaintiff is aware of the mix up.”
Corizon's statement it never employed a Karen Alexander
and that the plaintiff could be referring to Mary Alexander,
the magistrate judge directed the Clerk to send a copy of the
Order for Special Report and amended complaint to Mary
Alexander's last known address. (Doc. 53). However, the
mailing was returned as undeliverable. (Doc. 54).
the magistrate judge directed the United States Marshals
Service to serve an alias summons and amended complaint on
Nurse McDougle at her last known address after she failed to
file a waiver of service or respond to the Order for Special
Report within the allotted time. (Docs. 58, 59). However, the
summons was returned unexecuted on April 24, 2018. (Doc. 60).
efforts have been made to locate both Nurse Alexander and
Nurse McDougle without success. Because these defendants have
not been properly served, the plaintiff's claims against
them are due to be dismissed without prejudice. See
Fed. R. Civ. P. 4(m).
the plaintiff objects to the dismissal of his Eighth
Amendment medical claims against defendants Hood, Amborski,
Bryant, Bunn, Clay, and Thurmon.(Doc. 66 at 3-14). The
plaintiff restates his claims that these defendants failed to
provide him adequate medical treatment for his fractured leg.
(Id.). However, the plaintiff does not dispute that
(1) he injured his leg on a Saturday; (2) an x-ray technician
was not on duty at Limestone over the weekend; and (3)
medical staff scheduled the plaintiff for an x-ray Monday
morning. (See Doc. 14 at 8; Doc. 41-1 at 13; Doc.
41-2 at 3). Moreover, the plaintiff does not address the
magistrate judge's findings that medical staff monitored
the plaintiff's condition over the weekend by regularly
examining him, putting ice on his leg, advising him to keep
his leg elevated, and offering him pain medication.
(See Doc. 65 at 30; Doc. 41-2 at 2; Doc. 41-1 at
in the light most favorable to the plaintiff, the undisputed
evidence does not show the defendants were deliberately
indifferent to his serious medical needs or intentionally
delayed his medical treatment. The record is devoid of
evidence the defendants refused to treat the plaintiff or
were otherwise deliberately indifferent to his medical
condition. Rather, the record establishes the defendants and
other medical staff regularly examined and treated the
plaintiff and the medical treatment provided was not
“so grossly incompetent, inadequate, or excessive as to
shock the conscience.” See Adams v. Poag, 61
F.3d 1537, 1544 (11th Cir. 1995) (quotations marks and
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation and the objections to it, the court ADOPTS the
magistrate judge's report and ACCEPTS her recommendation.
Accordingly, the plaintiff's claims against Nurses
Alexander, Coleburn, and McDougle are due to be
DISMISSED WITHOUT PREJUDICE. The motions for
summary judgment filed by Corizon, Dr. Hood, and Nurses
Amborski, Clay, Bryant, Bunn, and Thurmon (Docs. 41, 61) are
due to be GRANTED, the court finding no
genuine issues of material fact exist.
court will enter a separate Final Order.