Brannon v. Lytle et al

Filing 84

ORDER ADOPTING 81 OPPOSED RECOMMENDATION as modified on de novo review. Brannon's claims against Dr. Lytle are dismissed without prejudice. The motions for summary judgment 56 and 70 are granted. An in forma pauperis appeal from the Order and the accompanying Judgment would not be taken in good faith. Signed by Judge D. P. Marshall Jr. on 03/27/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

CRFBRANNON
ADC #124405A

v.

PLAINTIFF
No. 5:13-cv-16-DPM-HDY

JOHN 0. LYTLE, Doctor, Corizon,
ADC; BERNARD G. CROWELL, Doctor,
CorizonfADC; TROY MOORE, Doctor,
Corizon/ADC; ESTELLA BLAND, APN,
Cummins Unit, ADC; and CORIZON INC.

DEFENDANTS

ORDER
Opposed recommendation, NQ 81, adopted as modified on de novo
review. FED. R. CIV. P. 72(b)(3).
1. Brannon's claims against Dr. Lytle are dismissed without prejudice.
The U.S. Marshal attempted to serve him twice by mail, but both times the
summons was returned unexecuted. NQ 9 & NQ 39. It is unclear whether the
second address was correct or not; the suit papers were returned unclaimed.
It is Brannon's responsibility to provide a correct address. Lee v. Armantrout,

991 F.2d 487, 489 (8th Cir. 1993)(per curiam). In any event, Brannon can still
sue Dr. Lytle in another case.
2. Brannon says that, had he been given access to his medical records

or had proper legal counsel, he would have proven his deliberate indifference
claims. NQ 82 at 2. First, Brannon had access to all the documents Defendants
possess about his medical care, including medical records. NQ 83 at 2. Second,
he received care from two different doctors and had three surgical
procedures. NQ 72-1 & Ng 72-2. Two other doctors reviewed Brannon's
medical records and provided affidavits saying that the treatment Brannon
received was appropriate. NQ 72-2 & NQ 72-3. One doctor mailed Brannon
information in an attempt to help him better understand his condition. NQ 722 at 4. The Court does not see the kind of factual or legal complexity that
would justify counsel. Ward v. Smith, 721 F.3d 940 (8th Cir. 2013)(per curiam).
3. Brannon also objects to his being denied the right to have witnesses
present at his pre-jury hearing. Judge Young alerted him that witnesses
would only be permitted if Brannon were unable to testify himself. NQ 42.
"For purposes of the evidentiary hearing, all of [Brannon's] testimony had to
be (and was) regarded as true, see Johnson v. Bi-State Justice Ctr., 12 F.3d 133,
135-36 (8th Cir. 1993), making other witnesses' testimony cumulative."

Munson v. Norris, 435 F.3d 877, 880 (8th Cir. 2006). This resolves the issue as
to proposed witnesses Hughes, Glover, and Esaw. NQ 47. And because all

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medical records were provided, there was no need for Krumpton or a records
clerk from St. Vincent's hospital. Ibid. It is unclear whether the x-rays were
ever provided; but Judge Young assumed, as has this Court, that Brannon's
knee replacement was unsuccessful, so there was no evidentiary work for the
x-rays to do.
4. The motions for summary judgment, NQ 56 & 70, are granted. And
the Court certifies that an in forma pauperis appeal from the Order and the
accompanying Judgment would not be taken in good faith.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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