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Roberts v. Neal

United States District Court, S.D. Illinois

August 15, 2016

B. NEAL et. al ., Defendants.


          STACI M. YANDLE United States District Judge

         This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Philip M. Frazier (Doc. 184). Judge Frazier recommends denying Plaintiff’s Motion to Dismiss Defendants’ Motions for Summary Judgment (Doc. 176) and granting Defendants’ motions for summary judgment (Docs. 155, 164). The Report and Recommendation was entered on May 17, 2016, and Plaintiff filed a timely objection (Doc. 185). For the reasons stated below, the Court overrules Plaintiff’s objections and ADOPTS the Report and Recommendation of Magistrate Judge Frazier in its entirety.


         Plaintiff, an inmate in the Illinois Department of Corrections, filed this action alleging that his constitutional rights were violated during his incarceration at Big Muddy Correctional Center. On March 31, 2009, Plaintiff suffered an injury to his right hand following an altercation with another inmate. Prison officials handcuffed Plaintiff and escorted him to the health care unit (“HCU”) where Plaintiff was evaluated by Defendant Brian Neal, a registered nurse. Neal observed slight swelling to Plaintiff’s right hand. During the evaluation, Neal did not request the removal of Plaintiff’s handcuffs nor did he inquire about any limitations in the mobility of Plaintiff’s fingers. Neal instructed Plaintiff to follow up as needed if his symptoms changed. Nurses at Big Muddy did not have the authority to order pain medication or x-rays, however Neal could have recommended such treatment to Dr. Larsen, the supervising physician. After reviewing Neal’s evaluation, Dr. Larsen agreed that Plaintiff should follow up if his symptoms changed.

         After leaving the HCU, Plaintiff was transported to the segregation unit where he developed swelling of his entire hand. Plaintiff notified correctional officer Defendants Jarrod Selby and Thad Woodside that he was in pain and needed medication. Plaintiff asserts that neither responded to his requests for pain medication. On his third request for assistance, Defendant Doty informed Plaintiff that the HCU had been notified and that someone was on the way.

         Later that day, Nurse Puckett evaluated Plaintiff. She observed swelling and limited motion. After consulting with Dr. Larsen, Plaintiff was given Ibuprofen 200 mg and placed on the sick call line. Two days later, Plaintiff received an x-ray which showed a fracture of the second metacarpal bone in his right hand. Plaintiff was referred to an orthopedic specialist and received treatment for his hand. During his treatment and after the fracture healed, Plaintiff continued to report symptoms of pain. Plaintiff reports that he continues to suffer from pain and stiffness in his hand.

         Plaintiff filed this action in April 2011. On July 8, 2014, Plaintiff moved for appointed counsel (Doc. 132). The Court granted Plaintiff’s motion and attempted to recruit counsel on Plaintiff’s behalf (Doc. 136). However, after contacting 70 attorneys on the Court’s voluntary pro bono panel, the Court was unable to locate a volunteer to represent Plaintiff (Doc. 138). Plaintiff was granted leave to refile the motion for recruitment of counsel at a later stage in the litigation (Id.). Plaintiff moved on several other occasions for the recruitment of counsel (see Docs. 143, 161). Each time, the Court contacted numerous attorneys on the Court’s voluntary pro bono panel, but was unable to locate a volunteer (see Doc. 148, 175). Plaintiff was advised to continue litigating his case as best he could and was granted leave to refile his motion for counsel.

         On March 26, 2015, Plaintiff moved for an extension of time to complete discovery (Doc. 152), which the Court granted (Doc. 160). On April 13, 2015, Defendant Neal filed his motion for summary judgment (Doc. 155). Defendants Woodside, Selby, and Doty filed their motion for summary judgment on May 29, 2015 (Doc. 164). Plaintiff requested and received extensions to respond to the motions (see Doc. 173). Contemporaneously with his response in opposition to the motions for summary judgment, Plaintiff filed a motion to dismiss Defendants’ motions for summary judgment (Doc. 176).


         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         Plaintiff’s Motion to Dismiss

         Plaintiff seeks the dismissal of Defendants’ motions for summary judgment asserting that Defendants failed to comply with his discovery requests seeking relevant information. In the Report and Recommendation (“Report”), Judge Frazier found that Plaintiff failed to provide an affidavit or declaration, pursuant to Rule 56(d)(1) of the Federal Rules of Civil Procedure, establishing that he is unable to present facts essential to his opposition to Defendants’ motions for summary judgment. Further, Judge Frazier found that Plaintiff has had continual access to his medical records as evidenced from Plaintiff’s pleadings; coupled with his recollection and statements regarding the events at issue in this litigation, Judge Frazier concluded that Plaintiff had the necessary evidence to oppose Defendants’ motions. Accordingly, Judge Frazier recommended denying Plaintiff’s motion to dismiss.

         Plaintiff objects to the Report by reiterating arguments previously made in his motion to dismiss and addressed by Judge Frazier. Specifically, Plaintiff contends that he was not provided an adequate amount of time to pursue discovery and that he did not receive certain medical documentation needed to adequately respond to the motions for summary judgment.

         Rule 56(d) states “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). Vague assertions that discovery would develop genuine issues of material fact ...

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