Wheatt v. Kilgore et al

Filing 37

MEMORANDUM OPINION - As the magistrate judge explained, a deliberate indifference claim cannot rest on evidence that a medical provider refused to provide the plaintiffs preferred method of treatment. (Doc. 36 , pp. 16-17). Accordingly, the Court fi nds that there are no genuine issues of material fact, and the defendants are entitled to judgment as a matter of law. The Court grants the defendants motions for summary judgment (Docs. 21 , 26 ). Signed by Judge Madeline Hughes Haikala on 10/10/2019. (KEK)

FILED
2019 Oct-10 PM 04:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JOEY WESLEY WHEATT,
Plaintiff,
v.
JIMMY KILGORE, et al.,
Defendants.

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Case No.: 1:18-cv-1938-MHH-JEO

MEMORANDUM OPINION
On July 26, 2019, the magistrate judge filed a report in which he
recommended that the Court grant the defendants’ motions for summary judgment.
(Doc. 36). The magistrate judge advised the parties of their right to file specific
written objections within 14 days. (Doc. 36, pp. 18-19). The Court has not received
objections to the report, and the time to file objections has expired.
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district court reviews legal conclusions in a report de novo and reviews for plain
error factual findings to which no objection is made. Garvey v. Vaughn, 993 F.2d
776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847 F.2d 745, 749 (11th
Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).

Having carefully reviewed and considered the materials in the court file,
including the report and recommendation and Mr. Wheatt’s complaint with the
incorporated grievances, and having taken account of the absence of a response to
the defendants’ motions and the absence of objections to the magistrate judge’s
report, the Court accepts the magistrate judge’s recommendation.

The Court

observes that there are situations in which the decision to provide only conservative
treatment for an extended period, in the face of physical evidence of injury, may
create a question of fact regarding a claim of deliberate indifference. See Davidson
v. Corizon, Inc., 2015 WL 4173107 (N.D. Ala. July 10, 2015) (denying motion for
summary judgment on deliberate indifference claim where defendants treated
repeated ear infections with only antibiotics and, for years, delayed diagnostic
testing to determine the underlying cause of the infections). Here, the medical
defendants treated an ankle that remained swollen for at least one year with
ibuprofen or acetaminophen. An x-ray was ordered after Mr. Wheatt filed this
lawsuit. Still, the record does not support a claim of deliberate indifference against
the medical defendants because the evidence indicates that after the medical
defendants ordered diagnostic tests, Mr. Wheatt refused to cooperate in his treatment
because he wanted a particular type of treatment. As the magistrate judge explained,
a deliberate indifference claim cannot rest on evidence that a medical provider

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refused to provide the plaintiff’s preferred method of treatment. (Doc. 36, pp. 1617).
Accordingly, the Court finds that there are no genuine issues of material fact,
and the defendants are entitled to judgment as a matter of law. The Court grants the
defendants’ motions for summary judgment (Docs. 21, 26).
The Court will enter a final judgment.
DONE this 10th day of October, 2019.

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MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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