Booth v. Tuscaloosa County et al

Filing 49

MEMORANDUM OPINION that the magistrate judge's report is adopted and his recommendation is ACCEPTED; the court ORDERS the defendants' motion for summary judgment is GRANTED as more fully set out in therein. Signed by Judge C Lynwood Smith, Jr on 9/29/2017. (AHI) Modified on 9/29/2017 (AHI ).

FILED
2017 Sep-29 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
RICKY DEWAYNE BOOTH,

)
)
Plaintiff,
)
)
vs.
)
)
CORIZON HEALTH SERVICES, et )
al.,
)
)
Defendants.
)

Case No. 7:14-cv-01622-CLS-JEO

MEMORANDUM OPINION
The magistrate judge filed a report on September 2, 2016, recommending that
defendants’ special report be treated as a motion for summary judgment and further
recommending that the motion be granted.1 Plaintiff filed objections to the report and
recommendation on October 21, 2016.2
In the objections, the court is asked to disregard the magistrate judge’s refusal
to consider plaintiff’s response to defendants’ motion for summary judgment on
grounds that “plaintiff did not sign [the response] under the penalty of perjury.”3
Plaintiff explains his belief that Chief United States Magistrate Judge John E. Ott
“does not like” him because Judge Ott presided over his federal habeas corpus

1

Doc. no. 44.

2

Doc. no. 47.

3

Id. at 1 (alteration supplied).

petition, and therefore knows the nature of plaintiff’s conviction and sentence.4
Plaintiff also complains about his mental illnesses and declares, “no matter the law,”
the court will do what it “ha[s] to do” so as to “not make the right person mad” or
“dislike” the court’s decisions.5
Plaintiff’s belief that Judge Ott or this court harbors improper bias is baseless
and frivolous, and plaintiff’s mental health issues are not material to the claims being
adjudicated. Additionally, plaintiff’s beliefs and concerns do not point to any legal
or factual errors in the report and recommendation.
In his report, the magistrate judge did refuse to consider all but two sentences6
of plaintiff’s response (opposition) to defendants’ motion for summary judgment
because plaintiff did not sign the response under oath or penalty of perjury. Plaintiff
does not deny he was instructed how to properly respond to a motion for summary
judgment pursuant to Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985), and
he clearly understood Griffith compliance because he attached two inmate affidavits
to his response that were subscribed to under oath or under penalty of perjury.7

4

Doc. no. 47 at 1.

5

Id. (alteration supplied).

6

Doc. no. 44 at 1 n.1 (citing Doc. no. 42 at 3) (“Corizon, LLC does have a policy that
violates our rights, by having a LPN to see us, and tell us that in 7-14 days we will see a doctor. (I
swear under penalty of perjury that I’ve never been took [sic] from sick call to the doctor.[)]”)).
7

Doc. no. 42-1 at 25-27, 29. Other than the signatures, it is readily apparent the affidavits
are in plaintiff’s handwriting. Id.
2

Plaintiff does not dispute the magistrate judge’s report that, excepting two sentences,
his response is not sworn under penalty of perjury,8 nor does he contend that it was
his belief the sentence interjection(s) satisfied Rule 56 evidentiary requirements for
the entire response.
Other than the issue of his unsworn response, plaintiff does not assert the
magistrate judge made any factual or legal errors in the report and recommendation.9
Instead, he declares defendants “submitted false evidence” and “affidavits” in their
report.10 Specifically, plaintiff asserts defendants attested that the medical records
contained “a treatment order for scab[]ies from April 28, 2014 through May 13,
2014[.]”11 However, when the records are examined, they reveal the treatment
plaintiff received during this time period was for MRSA, a staph infection.12 While
plaintiff’s description of the medical records is accurate, it is equally true that the
8

See supra n. 6. The court has found another phrase in the response that also is sworn under
penalty of perjury, but the phrase does not pertain to summary judgment facts or legal conclusions.
See Doc. no. 42 at 6-7 (offering a settlement to defendants, and declaring, “I do hereby swear under
the penalty of perjury that if (we) don’t settle, and this Honorable Court will not appoint me a[n]
attorney under the Americans with Disabilities Act, I will let a[n] attorney friend to take the case,
and donate” almost all damages to charity.) (alterations supplied).
9

This lack of objection to the magistrate judge’s factual and legal recommendations includes
the two sentences sworn to by plaintiff, and an alternative recommendation as to defendant Kirk,
recommending that summary judgment would be due to be granted in her favor even if the factual
allegations against her in the response concerning scabies were considered. See doc. no. 44 at 13 n.4;
id. at 16 n.5.
10

Doc. no. 47 at 2-3.

11

Id. (alterations supplied).

12

Doc. no. 47 at 2.
3

magistrate judge came to the same conclusion because he did not report that plaintiff
received scabies treatment from April 28, 2014, to May 13, 2014.13
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the
magistrate judge’s report is hereby ADOPTED and the recommendation is
ACCEPTED.

Accordingly, the court ORDERS that defendants’ motion for

summary judgment is GRANTED, the court finding no genuine issues of material
fact exist. A final judgment will be entered.
DONE this 29th day of September, 2017.

______________________________
United States District Judge

13

Doc. no. 44 at 7-8.
4