Swain v. Peterson et al
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/22/2017. (KEK)
2017 Mar-22 AM 09:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORELL MONTRAIL SWAIN,
LIEUTENANT PETERSON, et al.,
Case No. 2:15-cv-01965-MHH-TMP
On December 21, 2016, the magistrate judge entered a report in which he
recommended that the Court grant the defendants’ motion for summary judgment.
(Doc. 32). After three requests for extensions of time, plaintiff Norell Montrail
Swain filed objections to the report and recommendation on March 14, 2017.
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).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error proposed factual findings to which no objection is
made, and the Court reviews propositions of law de novo. Garvey v. Vaughn, 993
F.2d 776, 779 n. 9 (11th Cir. 1993); see also United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050 (1984); Macort v.
Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
In his objections, Mr. Swain argues that the magistrate judge wrongfully
denied his motion to conduct additional discovery. Mr. Swain contends that
evidence obtained in discovery would have supported his claims. (Doc. 39, pp. 2,
5). Mr. Swain does not dispute that his motion for discovery was deficient because
he did not state how the disclosures provided by the defendants in their Special
Report were inadequate to provide the information sought in his motion. (See Doc.
25, pp. 1-2). In addition, Mr. Swain does not dispute that his motion for discovery
was untimely because he did not file the motion within 30 days from the date of
the Special Report. (Id. at 2). Therefore, the Court finds that the magistrate judge
did not abuse his discretion in denying Mr. Swain’s motion for additional
Mr. Swain also objects that the magistrate judge wrongfully denied him
appointment of counsel. (Doc. 39, pp. 2, 5). The magistrate judge’s denial of Mr.
Swain’s motion for appointment of counsel was appropriate because there is no
constitutional right to counsel in a civil case, and Mr. Swain’s claims are neither
novel nor complex. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999);
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990); Vickers v. Georgia, 567
Fed. Appx. 744, 749 (11th Cir. 2014). Mr. Swain presented thorough arguments in
his brief in opposition to the defendants’ motion for summary judgment (Doc. 30)
and in his objections to the report and recommendation (Doc. 39).
Mr. Swain also objects that the magistrate judge refused to consider his
sworn affidavit (Doc. 24, pp. 13-21) in opposition to the defendants’ motion for
summary judgment. (Doc. 39, p. 2). The record demonstrates that the magistrate
judge repeatedly cited and relied on Mr. Swain’s affidavit. (Doc. 32, pp. 5-9, 1113, 19-20, 22).
Mr. Swain next objects to defendant Price’s affidavit because he did not
receive a copy of it. (Doc. 39, p. 4). Mr. Swain states that he notified the Court
that he had not received a copy of Mr. Price’s affidavit. (Id.). The Court has
reviewed the submissions that Mr. Swain filed after the defendants filed their
Special Report on March 29, 2016. (Docs. 24, 26, 27, 30, 33, 35, 37). On May 19,
2016, Mr. Swain filed a “Rule 56(d) Motion,” in which he stated that he “cannot
present facts essential to justify opposition to the defendant[s’] motion for
summary judgment.” (Doc. 24, p. 1). Mr. Swain moved for leave to file written
interrogatories and requests for production. (Id.). Mr. Swain sought production of
documents from Investigations & Intelligence (“I & I”) concerning the assault on
August 31, 2015, Sergeant Antione Price’s “sworn affidavit of knowledge of the
incident,” and reports from physicians at UAB concerning his eye condition. (Doc.
24, p. 7). Mr. Swain did not specifically state in his motion, or anywhere else, that
Mr. Price’s affidavit was not included in the defendants’ Special Report. (Id.).
The magistrate judge construed Mr. Swain’s motion as one for discovery. (Doc.
25, p. 2). The magistrate judge informed Mr. Swain that the defendants had filed a
Special Report which included affidavits and institutional documents. (Id. at 1).
The magistrate judge denied Mr. Swain’s discovery motion because he (Mr.
Swain) did not state how the disclosures provided in the defendants’ Special
Report were inadequate to provide the information sought in the discovery motion.
(Id. at 2). Again, Mr. Swain failed to specifically notify the Court that Mr. Price’s
affidavit was not included in the Special Report. 1
Regardless, Mr. Swain has not been prejudiced due to the omission of Mr.
Price’s affidavit from the Special Report. First, the magistrate judge cited Mr.
Price’s affidavit for facts that are neither in dispute nor material to summary
judgment. (Doc. 32, pp. 4-5).2
Additionally, the magistrate judge’s conclusion
that the defendants were not deliberately indifferent to Mr. Swain’s safety is well
In his response to summary judgment, Mr. Swain stated that the defendants’ affidavits
supported his claims that they were deliberately indifferent to his safety. (Doc. 30, p. 7). Mr.
Swain did not complain that Mr. Price’s affidavit was missing from the Special Report. (Id. at 910). At most, Mr. Swain complained that the magistrate judge denied his request for documents
from I & I and interrogatories.
Consistent with the applicable standard of review, if the facts were disputed, the magistrate
judge construed the facts in the light most favorable to Mr. Swain. (Doc. 32, pp. 2-4). The
magistrate judge noted disputed factual allegations in footnote form. (Id. at 4-14).
supported by other evidence in the record aside from Mr. Price’s affidavit. (See
Doc. 32, pp. 16-24).
In his objections, Mr. Swain restates his claims that defendants Peterson
and Price were deliberately indifferent to his safety. (Doc. 39, pp. 2-5). However,
there is no evidence that defendants Peterson and Price knew that inmate Johnson
would violate the Living Agreement and attack Mr. Swain.
Swain’s claim that inmate Johnson was not in his “right mind” when he signed the
Living Agreement and defendant Peterson and Price should have known that
Johnson would violate the agreement is speculative and not supported by the
evidence. (Doc. 39, p. 4).
Mr. Swain further claims that inmate Johnson attacked him again on August
31, 2015, about 35 or 45 minutes after he notified defendants Gilbert, Thrasher,
and Godsey that Johnson had threatened him and assaulted him the day before.
(Doc. 39, p. 7). The undisputed evidence shows that defendants Gilbert, Thrasher,
and Godsey were in the process of investigating Mr. Swain’s claims and reviewing
the incident reports and other institutional documents, including the body charts
and Living Agreement, when Johnson attacked Mr. Swain. (Doc. 24, p. 17, Swain
Aff.; Doc. 21-3, Gilbert Aff. at 1; Doc. 21-5, Thrasher Aff. at 2; Doc. 21-4, Godsey
Aff. at 2-3). Thus, Mr. Swain has not demonstrated that these defendants were
deliberately indifferent to his safety at the time of the attack. Mr. Swain claims
that the officers were not investigating his claims (Doc. 39, pp. 6-7), but he has no
personal knowledge of this alleged fact because he left the shift office and was
walking with Officers Keyes, Steele, and Sanders when Johnson attacked him
outside of Captain Tew’s office. (Doc. 24, pp. 18-19). While defendants Gilbert,
Thrasher, and Godsey may have been aware at the time that Johnson posed a
significant risk of harm to Mr. Swain, the record contains no evidence
demonstrating that they were deliberately indifferent to Mr. Swain’s safety.
Having carefully reviewed and considered de novo all the materials in the
record, including the report and recommendation and Mr. Swain’s objections, the
Court overrules Mr. Swain’s objections. The Court adopts the magistrate judge’s
report and accepts his recommendation. Accordingly, the Court grants the
defendants’ motion for summary judgment. The Court will enter a separate final
DONE and ORDERED this March 22, 2017.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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