Cannon v. Corizon Medical Services et al

Filing 67

MEMORANDUM OPINION - Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections to it, the court ADOPTS the magistrate judges report and ACCEPTS her recommendation. Accordingly, the plaintiffs claims against Nurses Alexander, Coleburn, and McDougle are due to be DISMISSED WITHOUT PREJUDICE. The motions for summary judgment filed by Corizon, Dr. Hood, and Nurses Amborski, Clay, Bryant, Bunn, and Thurmon (Docs. 41 , 61 ) are due to be GRANTED, the court finding no genuine issues of material fact exist. Signed by Chief Judge Karon O Bowdre on 2/4/2019. (KEK)

FILED
2019 Feb-04 PM 02:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
ROY M. CANNON,

)
)
Plaintiff,
)
)
v.
)
)
CORIZON MEDICAL SERVICES, et )
)
al.,
)
Defendants.
)

Case No. 6:15-cv-02346-KOB-SGC

MEMORANDUM OPINION
The magistrate judge filed a report on October 29, 2018, recommending that
the plaintiff’s Eighth Amendment medical claims against Nurses Alexander,
Coleburn, and McDougle be dismissed without prejudice.

(Doc. 65).

The

magistrate judge further recommended that the motions for summary judgment
filed by Corizon, LLC, Dr. Hood, and Nurses Amborski, Clay, Bryant, Bunn, and
Thurmon be granted and the plaintiff’s Eighth Amendment medical claims against
these defendants be dismissed with prejudice. (Id.). The plaintiff filed objections
to the report and recommendation on November 8, 2018. (Doc. 66).
The plaintiff first objects to the dismissal of his claims against Nurses
Coleburn, Alexander, and McDougle. (Doc. 66 at 1-3). The plaintiff does not
dispute Corizon’s assertion it has never employed a Nurse Coleburn. (See Doc.
50). The plaintiff also does not dispute he failed to comply with or otherwise

respond to the magistrate judge’s order dated February 12, 2018, directing him to
correctly identify this defendant within twenty days and notifying him that failure
to comply within the time prescribed could result in the dismissal of the defendant.
(See Doc. 52). Because the plaintiff failed to correctly identify the defendant he
refers to as Nurse Coleburn, or otherwise respond to the magistrate judge’s order,
his claims against this defendant are due to be dismissed without prejudice. See
FED. R. CIV. P. 41(b).
The plaintiff fails to adequately dispute Corizon’s claim it never employed a
Nurse Karen Alexander but did employ a Mary Alexander.

(See Doc. 51).

Instead, the plaintiff maintains a nurse named Karen Alexander was at the prison.
(Doc. 66 at 2).

He states, “she may have been name[d] Mary Kartherin[e]

Alexander which in turn wa[s] [called] Karen. The plaintiff is aware of the mix
up.” (Id.).
Given Corizon’s statement it never employed a Karen Alexander and that
the plaintiff could be referring to Mary Alexander, the magistrate judge directed
the Clerk to send a copy of the Order for Special Report and amended complaint to
Mary Alexander’s last known address. (Doc. 53). However, the mailing was
returned as undeliverable. (Doc. 54).
Similarly, the magistrate judge directed the United States Marshals Service
to serve an alias summons and amended complaint on Nurse McDougle at her last
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known address after she failed to file a waiver of service or respond to the Order
for Special Report within the allotted time.

(Docs. 58, 59).

However, the

summons was returned unexecuted on April 24, 2018. (Doc. 60).
Reasonable efforts have been made to locate both Nurse Alexander and
Nurse McDougle without success.

Because these defendants have not been

properly served, the plaintiff’s claims against them are due to be dismissed without
prejudice. See FED. R. CIV. P. 4(m).
Next, the plaintiff objects to the dismissal of his Eighth Amendment medical
claims against defendants Hood, Amborski, Bryant, Bunn, Clay, and Thurmon.1
(Doc. 66 at 3-14). The plaintiff restates his claims that these defendants failed to
provide him adequate medical treatment for his fractured leg. (Id.). However, the
plaintiff does not dispute that (1) he injured his leg on a Saturday; (2) an x-ray
technician was not on duty at Limestone over the weekend; and (3) medical staff
scheduled the plaintiff for an x-ray Monday morning. (See Doc. 14 at 8; Doc. 41-1
at 13; Doc. 41-2 at 3). Moreover, the plaintiff does not address the magistrate
judge’s findings that medical staff monitored the plaintiff’s condition over the
weekend by regularly examining him, putting ice on his leg, advising him to keep
his leg elevated, and offering him pain medication. (See Doc. 65 at 30; Doc. 41-2
at 2; Doc. 41-1 at 13-14, 16-18).
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The plaintiff does not specifically object to the dismissal of his claims against Corizon. (See
Doc. 66).

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Viewed in the light most favorable to the plaintiff, the undisputed evidence
does not show the defendants were deliberately indifferent to his serious medical
needs or intentionally delayed his medical treatment. The record is devoid of
evidence the defendants refused to treat the plaintiff or were otherwise deliberately
indifferent to his medical condition. Rather, the record establishes the defendants
and other medical staff regularly examined and treated the plaintiff and the medical
treatment provided was not “so grossly incompetent, inadequate, or excessive as to
shock the conscience.” See Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995)
(quotations marks and citation omitted).
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections to it, the
court ADOPTS the magistrate judge’s report and ACCEPTS her recommendation.
Accordingly, the plaintiff’s claims against Nurses Alexander, Coleburn, and
McDougle are due to be DISMISSED WITHOUT PREJUDICE. The motions
for summary judgment filed by Corizon, Dr. Hood, and Nurses Amborski, Clay,
Bryant, Bunn, and Thurmon (Docs. 41, 61) are due to be GRANTED, the court
finding no genuine issues of material fact exist.
The court will enter a separate Final Order.

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DONE and ORDERED this 4th day of February, 2019.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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