Kirkland v. Keeling et al

Filing 70

ORDER Adopting Report and Recommendation. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

George Kirkland, Jr. ,
Case No. 12-15275
Plaintiff,
Honorable Nancy G. Edmunds
v.
Marvin Keeling, et al.,
Defendants.
/

ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S MAY 5, 2014
REPORT AND RECOMMENDATION [66]
Plaintiff George Kirkland, Jr., a sixty-six year-old man incarcerated at Central Michigan
Correctional Facility at the beginning of this suit, has filed a 28 U.S.C. § 1983 action for
negligent actions three prison officials allegedly took regarding Plaintiff's various alleged
medical concerns. (Dkt. 1, Compl.) Plaintiff seeks to recover for alleged injuries relating
to the prison's failure to remove a tube from his left eye, a broken foot, and athlete's foot.
On January 16, 2014, the Court accepted the magistrate judge's recommendation and
dismissed Defendants Keeling and Birkett and all the claims against them. (Dkt. 58, Order
at 2-3.) After the January 16, 2014 order, the only claim and Defendant remaining in the
case was the deliberate indifference claim relating to Plaintiff's broken foot against
Defendant Kearney. (Id. at 5.)
On May 5, 2014, the magistrate judge issued a report and recommendation on
Defendant Kearney's motion for summary judgment on the last remaining claim in the case.
(Dkt. 66.) The magistrate judge recommended that the Court grant Defendant Kearney's

motion for summary judgment because Plaintiff could not prove the objective or subjective
component of a deliberate indifference Eighth Amendment claim regarding his broken
ankle. (Id.)
Plaintiff filed an objection to the magistrate judge's report and recommendation, but
he does not address the magistrate judge's holding or the deliberate indifference claim
against Defendant Kearney. (Dkt. 68, 69.) “[T]he failure to object to the magistrate judge’s
report[] releases the Court from its duty to independently review the matter.” Hall v. Rawal,
09-10933, 2012 WL 3639070, at *1 (E.D.Mich. Aug. 24, 2012) (citation omitted). The Court
nevertheless agrees with the magistrate judge’s recommendation. The Court ACCEPTS
and ADOPTS the magistrate judge's report and recommendation and therefore GRANTS
Defendant Kearney's motion for summary judgment and dismisses him from this case.
The Court now turns to the substance of his objections/appeals. (Dkt. 68, 69.) These
objections/appeals address the magistrate judge's orders denying Plaintiff's motion for
appointment of counsel, motion for immediate consideration, and motion to add defendant.
(Dkt. 65, 59, 60, 61.) In his objections/appeals, Plaintiff presents the Court with an update
on his eye issue and the appointments he has had in 2014. Plaintiff submits that the
ophthalmologist told him that the tube stayed in his eye so long that it caused Plaintiff's tear
ducts to enlarge. (Dkt. 69, Pl.'s Supplement at 2.) The enlargement caused tears from the
right side of the tear duct to pour over into the left side of the tear duct. (Id.) The
ophthalmologist stated that Plaintiff would need another surgery to correct the enlargement,
but that the ophthalmologist did not have the expertise in that procedure. (Id.)
The Court agrees with the magistrate judge in her May 5, 2014 order denying
Plaintiff's request for appointment of counsel, immediate consideration, and motion to add
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defendant. (Dkt. 65.) As the Court has stated throughout this case, and as the Court
reaffirms now, Plaintiff has not shown a constitutional violation. While Plaintiff has shown
that he is experiencing, and has experienced, discomfort in the form of watery and itchy
eyes, the Court finds that those discomforts do not rise to the level of an Eighth
Amendment violation.
The Court therefore OVERRULES Plaintiff's objections, ACCEPTS and ADOPTS the
magistrate judge's May 5, 2014 report and recommendation, and GRANTS Defendant
Kearney's motion for summary judgment. There being no claims pending in this case, the
Court will issue a judgment closing this case.
So ordered.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: June 18, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 18, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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