Roberts v. Neal et al

Filing 190

ORDER ADOPTING Report and Recommendations (Doc. 184 ). The motions for summary judgment filed by Defendants Doty, Selby, Woodside, and Neal (Docs. 155 and 164 ) are GRANTED. Plaintiff's Motion to Dismiss (Doc. 176 ) is DENIED. Signed by Judge Staci M. Yandle on 8/15/2016. (mah).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CARL ROBERTS,
Plaintiff,
vs.
B. NEAL et. al.,
Defendants.

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Case No. 11-CV-266-SMY-PMF

MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Philip M. Frazier (Doc. 184). Judge Frazier recommends denying Plaintiff’s
Motion to Dismiss Defendants’ Motions for Summary Judgment (Doc. 176) and granting
Defendants’ motions for summary judgment (Docs. 155, 164).

The Report and

Recommendation was entered on May 17, 2016, and Plaintiff filed a timely objection (Doc. 185).
For the reasons stated below, the Court overrules Plaintiff’s objections and ADOPTS the Report
and Recommendation of Magistrate Judge Frazier in its entirety.
Background
Plaintiff, an inmate in the Illinois Department of Corrections, filed this action alleging
that his constitutional rights were violated during his incarceration at Big Muddy Correctional
Center. On March 31, 2009, Plaintiff suffered an injury to his right hand following an altercation
with another inmate. Prison officials handcuffed Plaintiff and escorted him to the health care
unit (“HCU”) where Plaintiff was evaluated by Defendant Brian Neal, a registered nurse. Neal
observed slight swelling to Plaintiff’s right hand. During the evaluation, Neal did not request the
removal of Plaintiff’s handcuffs nor did he inquire about any limitations in the mobility of
Plaintiff’s fingers. Neal instructed Plaintiff to follow up as needed if his symptoms changed.
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Nurses at Big Muddy did not have the authority to order pain medication or x-rays, however
Neal could have recommended such treatment to Dr. Larsen, the supervising physician. After
reviewing Neal’s evaluation, Dr. Larsen agreed that Plaintiff should follow up if his symptoms
changed.
After leaving the HCU, Plaintiff was transported to the segregation unit where he
developed swelling of his entire hand. Plaintiff notified correctional officer Defendants Jarrod
Selby and Thad Woodside that he was in pain and needed medication. Plaintiff asserts that
neither responded to his requests for pain medication. On his third request for assistance,
Defendant Doty informed Plaintiff that the HCU had been notified and that someone was on the
way.
Later that day, Nurse Puckett evaluated Plaintiff. She observed swelling and limited
motion. After consulting with Dr. Larsen, Plaintiff was given Ibuprofen 200 mg and placed on
the sick call line. Two days later, Plaintiff received an x-ray which showed a fracture of the
second metacarpal bone in his right hand. Plaintiff was referred to an orthopedic specialist and
received treatment for his hand. During his treatment and after the fracture healed, Plaintiff
continued to report symptoms of pain. Plaintiff reports that he continues to suffer from pain and
stiffness in his hand.
Plaintiff filed this action in April 2011. On July 8, 2014, Plaintiff moved for appointed
counsel (Doc. 132). The Court granted Plaintiff’s motion and attempted to recruit counsel on
Plaintiff’s behalf (Doc. 136). However, after contacting 70 attorneys on the Court’s voluntary
pro bono panel, the Court was unable to locate a volunteer to represent Plaintiff (Doc. 138).
Plaintiff was granted leave to refile the motion for recruitment of counsel at a later stage in the
litigation (Id.). Plaintiff moved on several other occasions for the recruitment of counsel (see
Docs. 143, 161). Each time, the Court contacted numerous attorneys on the Court’s voluntary

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pro bono panel, but was unable to locate a volunteer (see Doc. 148, 175). Plaintiff was advised
to continue litigating his case as best he could and was granted leave to refile his motion for
counsel.
On March 26, 2015, Plaintiff moved for an extension of time to complete discovery (Doc.
152), which the Court granted (Doc. 160). On April 13, 2015, Defendant Neal filed his motion
for summary judgment (Doc. 155). Defendants Woodside, Selby, and Doty filed their motion for
summary judgment on May 29, 2015 (Doc. 164). Plaintiff requested and received extensions to
respond to the motions (see Doc. 173). Contemporaneously with his response in opposition to
the motions for summary judgment, Plaintiff filed a motion to dismiss Defendants’ motions for
summary judgment (Doc. 176).
Discussion
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
Plaintiff’s Motion to Dismiss
Plaintiff seeks the dismissal of Defendants’ motions for summary judgment asserting that
Defendants failed to comply with his discovery requests seeking relevant information. In the
Report and Recommendation (“Report”), Judge Frazier found that Plaintiff failed to provide an
affidavit or declaration, pursuant to Rule 56(d)(1) of the Federal Rules of Civil Procedure,
establishing that he is unable to present facts essential to his opposition to Defendants’ motions
for summary judgment. Further, Judge Frazier found that Plaintiff has had continual access to

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his medical records as evidenced from Plaintiff’s pleadings; coupled with his recollection and
statements regarding the events at issue in this litigation, Judge Frazier concluded that Plaintiff
had the necessary evidence to oppose Defendants’ motions.

Accordingly, Judge Frazier

recommended denying Plaintiff’s motion to dismiss.
Plaintiff objects to the Report by reiterating arguments previously made in his motion to
dismiss and addressed by Judge Frazier. Specifically, Plaintiff contends that he was not provided
an adequate amount of time to pursue discovery and that he did not receive certain medical
documentation needed to adequately respond to the motions for summary judgment.
Rule 56(d) states “[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take
discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). Vague assertions that
discovery would develop genuine issues of material fact are insufficient to a party seeking
protection under Rule 56(d). See Grundstat v. Ritt, 166 F.3d 867, 873 (7th Cir.1999).
Here, Plaintiff failed to establish by affidavit or declaration that he cannot present facts
necessary to oppose Defendants’ motions for summary judgment. Furthermore, Plaintiff’s mere
allegations that he has not had the opportunity to conduct discovery is not sufficient to defeat a
motion for summary judgment. “Rule 56 does not require that discovery take place in all cases
before summary judgment can be granted. In fact, the Seventh Circuit has noted that ‘the fact
that discovery is not complete—indeed has not begun—need not defeat [a motion for summary
judgment].’ ” Waterloo Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648 (7th
Cir.2006). Accordingly, Plaintiff’s arguments for dismissal are untenable.
Moreover, the record indicates that Plaintiff was given more than enough time to pursue
discovery. The parties were provided an additional six months to complete discovery and, on

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Plaintiff’s request, the Court reopened discovery for an additional 25 days following the filing of
Defendant Neal’s motion for summary judgment.

Thus, the Court overrules Plaintiff’s

objections regarding his inability to pursue discovery and the alleged missing documentation.
Plaintiff next asserts that, although the Court granted his motion for recruitment of
counsel, no attorney was ever appointed to assist him. He contends that he would have had
access to certain unidentified documents had counsel been appointed.

On three separate

occasions, the Court contacted numerous attorneys admitted to practice law in this district and
was unable to locate a volunteer to represent Plaintiff. The Court directed Plaintiff to continue
representing himself to the best of his ability during the recruitment effort.
There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v.
Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006). Here, it appears from Plaintiff’s submissions to the Court that he possesses the
literacy, communication skills and intellectual capacity to litigate his case.

To the extent

Plaintiff’s legal research was hampered by his status as an inmate, the Court provided Plaintiff
with numerous extensions of time to complete discovery and an additional three months to
respond to Defendants’ motions for summary judgment. Contrary to Plaintiff’s assertions, the
record indicates that he had sufficient access to his medical records and was able to present his
claims in a cognizable manner. The Court finds that the inability to recruit counsel is not
grounds for granting Plaintiff’s motion to dismiss Defendants’ motions for summary judgment
and, therefore, overrules Plaintiff’s objections.
Defendants’ Motions for Summary Judgment
The Supreme Court has recognized that “deliberate indifference to serious medical needs
of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). Causation of harm is an essential element of a deliberate

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indifference to medical needs claim, and if an official was deliberately indifferent to a medical
need but caused no harm, there can be no liability. See Henderson v. Sheahan, 196 F.3d 839, 848
(7th Cir. 1999) (“[A] plaintiff must demonstrate both that he has suffered an ‘actual’ present
injury and that there is a causal connection between that injury and the deprivation of a
constitutionally protected right caused by a defendant.”).
“A delay in the provision of medical treatment for painful conditions can support a
deliberate-indifference claim ... so long as the medical condition is sufficiently serious or
painful.” Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.2008) (quoting Gutierrez v. Peters,
111 F.3d 1364, 1372 (7th Cir.1997)) (internal quotations omitted)). The Seventh Circuit requires
that a plaintiff introduce verifying medical evidence into the record to establish the detrimental
effect of the delay. Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir.1996).
In the Report, Judge Frazier found that Defendant Neal was entitled to summary
judgment because there was no evidence establishing that Plaintiff suffered any detrimental
effect from the delay in receiving a diagnostic x-ray or treatment for relief of pain. Judge Frazier
concluded that the evidence presented, even when viewed in the light most favorable to Plaintiff,
was insufficient to create a material issue of fact. Regarding Defendants Woodside, Doty and
Selby, Judge Frazier found that the 4 to 5 hour delay in providing care to Plaintiff’s non-life
threatening injury was not deliberate indifference and noted that the alleged delay experienced
by Plaintiff is also typically experienced by ordinary citizens seeking medical attention outside
of a prison.
Plaintiff has no objections to the factual findings in the Report, but objects to Judge
Frazier’s conclusion that Defendant Neal is entitled to judgment as a matter of law on Plaintiff’s
deliberate indifference claim (Doc. 185). Plaintiff’s medical records show that he suffered a
fracture of the second metacarpal bone in his right hand. However, although Defendant Neal did

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not provide Plaintiff with Ibuprofen or recommend an x-ray, the Court agrees with Judge Frazier
that there is no verifying medical evidence that this alleged delay exacerbated his condition nor
does the record establish that Plaintiff suffered substantial harm as a result of a delay in receiving
medical care. Rather, even after weeks of receiving pain medications and treatment, Plaintiff
continued reporting pain. The Court also agrees with Judge Frazier that the only rational
conclusion to be drawn from the medical record is that Plaintiff’s pain was a result of his hand
injury rather than from any alleged delayed diagnosis or treatment. Accordingly, Plaintiff’s
objections to the granting of Defendant Neal’s motion are overruled.
Plaintiff does not object to the recommended disposition of his claims against Defendants
Woodside, Doty and Selby. Where no specific objections to the Report and Recommendation
are made, this Court need not conduct a de novo review of the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985). Instead, the Court should review the Report and
Recommendation for clear error. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir.
1999).
The Court has carefully reviewed Judge Frazier’s Report and Recommendation and
agrees with his conclusion that the approximately 4 to 5 hour delay between Plaintiff first
requesting medical care from the Defendants until he was seen by Nurse Puckett does not
constitute deliberate indifference. See Knight v. Wiseman, 590 F.3d 458, 466 (7th Cir. 2009).
Accordingly, the Court adopts Magistrate Judge Frazier’s Report granting summary judgment to
Defendants Woodside, Doty and Selby.
Conclusion
For the foregoing reasons, Magistrate Judge Frazier’s Report and Recommendation (Doc.
184) is adopted. Defendants’ motions for summary judgment (Docs. 155, 164) are GRANTED
and Plaintiff’s Motion to Dismiss (Doc. 176) is DENIED.

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IT IS SO ORDERED.
DATED: August 15, 2016

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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