United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
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.
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.
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.
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.
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.
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.
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).
Motion to Dismiss
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
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.
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 ...