NEWMAN v. MOSES, et al

Filing 31

ORDER ADOPTING 29 REPORT AND RECOMMENDATION and granting 22 Motion for Summary Judgment filed by KEEL, IZUEGBU MOSES, signed by William Terrell Hodges on 10/25/17. The Clerk is directed to enter judgment and close the file. (tss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

DENNY LEE NEWMAN, JR,
PLAINTIFF,
-vs-

Case No. 5:16-cv-00002-WTH-GRJ

DR. MOSES IZUEGBU and NURSE LESLIE KEEL, 1
DEFENDANTS.
______________________________/
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report
and Recommendation dated April 20, 2017. (Doc. 29). The parties have been
furnished a copy of the Report and Recommendation and have been afforded an
opportunity to file objections pursuant to Title 28, United States Code, Section
636(b)(1). None were timely filed.
Objections were due fourteen days after plaintiff was served with the
Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). Even if the mail took
ten days to deliver the Report and Recommendation to plaintiff, objections would
have been due by May 14, 2017. Plaintiff did not deliver any response to prison
mail officials by that date. On May 22, 2017, however, the Clerk received a
1

In the affidavits attached to Defendants’ Motion for Summary Judgment, ECF No. 22, the defendants indicate
their proper names. See Izuegbu Aff. ¶ 2 and Keel Aff. ¶ 2. The Clerk is directed to update the names of the
defendants in the CMECF system to MOSES IZUEGBU and LESLIE KEEL.

Page 2 of 3

“Notice of Intent to Appeal Dismissal of Above Case Immediately” filed by
plaintiff, which he also entitled “Request Extension Time to File Proper
Response” [sic]. In the document, he avers that he delivered it to prison officials
on “7/18/17”, a date which had not yet occurred at the time the Clerk’s Office
received the filing. Moreover, even if the Court assumes that he meant
“5/18/2017”, and the Court construes this document as his request for an
extension of time to file objections, such request was untimely filed because
objections were due under even the most lenient of time frames by May 14,
2017. In this document, plaintiff did not allege any delay or other impediment to
him timely filing it. Thus, the request for extension of time is denied.
Also, although normally a filing entitled “Notice of Intent to Appeal” would
divest the district court of jurisdiction, the Eleventh Circuit has held that “filing a
notice of appeal from a nonappealable order should not divest the district court of
jurisdiction [in a case where] the appealed order was clearly unappealable and
the notice of appeal thus ‘manifestly ineffective.’” United States v. Hitchmon, 602
F.2d 689, 694 (5th Cir. 1979), superseded by statute on different grounds,
Comprehensive Crime Control Act of 1984, Pub.L. No. 98–473. Here, the notice
of appeal was filed in response to the Report and Recommendation, which is not
an order of the Court at all; thus, it cannot be a final, appealable order. As such,
the notice of appeal is manifestly ineffective and should not deprive this Court of
jurisdiction to rule on the Report and Recommendation.

Case No: 5:16-cv-00002-WTH-GRJ

Page 3 of 3

Having considered the Report and Recommendation, I have determined
that the Report and Recommendation should be adopted. Defendants were
simply not indifferent to plaintiff’s medical needs; they simply adopted a different
course of treatment than plaintiff thought was appropriate. Also, the undisputed
medical evidence shows that any lack of medication suffered by plaintiff was due
to his own lack of compliance rather than the inaction of medical staff.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
The Magistrate Judge’s Report and Recommendation, ECF
No. 29, is adopted and incorporated by reference in this order.
2.
The Clerk is directed to enter a judgment as follows: “The
defendants’ Motion for Summary Judgment, ECF No. 22, is granted.”
The Clerk is directed to close the file.
3.
The plaintiff is advised that the document at ECF No. 30 was
ineffective as a notice of appeal. He must, therefore, file a timely
notice of appeal of this Order to preserve whatever appellate rights
he has.
DONE and ORDERED at Gainesville, Florida this 25th day of October,
2017.

Case No: 5:16-cv-00002-WTH-GRJ