Lugo-Velez v. Federal Bureau Of Prisons et al

Filing 56

MEMORANDUM OPINION ADOPTING and ACCEPTING the 47 Magistrate Judge's Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 5/11/2017. (JLC)

FILED
2017 May-11 PM 12:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
LUIS ALBERTO LUGO-VELEZ,

)
)
Plaintiff,
)
)
vs.
) Case No.: 1:15-cv-01212-VEH-JHE
)
FEDERAL BUREAU OF PRISONS, )
et al.,
)
)
Defendants.
)
MEMORANDUM OPINION
The magistrate judge filed a report on February 2, 2017, recommending that the
Defendants' motion for summary judgment (doc. 26) be granted and that the Plaintiff's
claims against all Defendants be dismissed with prejudice. Although the parties were
advised of their right to file specific written objections within fourteen (14) days, on
the date that this Court adopted the magistrate's recommendation, February 28, 2017,
no objections appeared in the record. Thereafter, on March 8, 2017, this Court
entered an Order which, among other things, stated:
On February 24, 2017, the court received a motion for extension
of time from the plaintiff (doc. 50), wherein he sought additional time
to file objections to the Report and Recommendation, entered by the
magistrate judge on February 2, 2017. (Doc. 47). Because the plaintiff
failed to include a case number on his motion, the clerk’s office was
unable to ascertain the proper case in which to file his motion, and
returned the motion to the plaintiff. (Doc. 50). On February 28, 2017,
having received no objections, the court entered a Memorandum

Opinion and Final Judgment granting the defendants’ motion for
summary judgment and dismissing this action with prejudice. (Docs. 48
& 49). On March 6, 2017, the court received a letter from the plaintiff
stating he had asked for an extension of time to respond to the Report
and Recommendation. (Doc. 51). In that letter, he provided the case
number for the Clerk to locate his case. (Id.). At that point, the plaintiff’s
motion for extension of time was located and docketed in this case.
(Doc. 52 at 1-2). The undersigned treated the Plaintiff's letter as a motion to alter or
amend judgment pursuant to Rule 59(e), FED. R. CIV. P., and to reopen the case to
allow the Plaintiff an opportunity to file objections. That motion was granted. (Doc.
52 at 2).
On May 5, 2017, the Plaintiff filed objections to the magistrate's
recommendation. In those objections, the Plaintiff stated that he wished to "withdraw
the following d[e]fendants from this present action . . .: Herrell Watts [and] W.T.
Taylor."

(Doc. 55 at 1). Accordingly, the Plaintiff is only objecting to the

magistrate's recommendation to the extent that he recommended that summary
judgment be granted as to Dr. Stephanie Burrell.
Having conducted a de novo review of the entire file, including the report and
recommendation, and the objections thereto, the Court is of the opinion that the
magistrate's recommendation is due to be, and hereby is, ADOPTED and
ACCEPTED as the opinion of this Court. Although the Plaintiff objects to the
magistrate's legal analysis and recommendation to the extent that it finds that Dr.
2

Burrell is entitled to immunity, the magistrate is correct. The Court specifically holds
that Dr. Burrell, as an employee of the U.S. Public Health Service, is entitled to
immunity for the constitutional violations alleged against her in this action. 42
U.S.C.A. § 233(a); Hui v. Castaneda, 559 U.S. 799, 802, 130 S. Ct. 1845, 1848, 176
L. Ed. 2d 703 (2010) ("PHS officers and employees are not personally subject to
Bivens actions for harms arising out of [their performance of a medical or related
function]".) The Plaintiff's objections are accordingly OVERRULED.
A final judgment will be entered by separate order.
DONE this 11th day of May, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

3

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
Amy C. Nerenberg
Acting Clerk of Court

In Replying Give Number
of Case and Names of Parties

NOTICE TO PRISONERS CONCERNING CIVIL APPEALS

The Prison Litigation Reform Act of 1995 (effective April 26, 1996) now REQUIRES that
all prisoners pay the Court’s $500 docket fee plus $5 filing fee (for a total of $505) when appealing
any civil judgment.
If you wish to appeal in a civil case that Act now requires that upon filing a notice of appeal
you either:
(1)

Pay the total $505 fee to the clerk of the district court from which this case arose; or

(2)

arrange to have a prison official certify to the district court from which the appeal
arose the average monthly deposits and balances in your prison account for each of
the six months preceding the filing of a notice of appeal.

If you proceed with option (2) above, the Act requires that the district court order you to pay
an initial partial fee of at least 20% of the greater of either the average monthly deposits or of the
average monthly balances shown in your prison account. The remainder of the total $505 fee will
thereafter be deducted from your prison account each month that your account balance exceeds $10.
Each such monthly deduction shall equal 20% of all deposits to your prison account during the
previous month, until the total $505 fee is paid. (If your prison account statement shows that you
cannot pay even the required initial partial fee, your appeal may nevertheless proceed, BUT THE
TOTAL $505 FEE WILL BE ASSESSED AGAINST AND WILL BE DEDUCTED FROM
FUTURE DEPOSITS TO YOUR PRISON ACCOUNT.)
Fees are not refundable, regardless of outcome, and deductions from your prison account will
continue until the total $505 fee is collected, even if an appeal is unsuccessful.

Amy C. Nerenberg
Acting Clerk of Court

PLRA Notice