Gibbs #137358 v. Laughhunn et al
Filing
96
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 85 ; motions for summary judgment 28 and 58 are GRANTED; Plaintiff's motion to appoint counsel 83 is DENIED as moot; Plaintiff's motion instanter 88 is DENIED as moot; Plaintiff's "Extraordinary Letter to All" 93 is DENIED as moot; Plaintiff's "Urgent Prayer to Court" 94 is DENIED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL D. GIBBS,
Plaintiff,
Case No. 1:14-cv-1101
v
HON. JANET T. NEFF
SUMMER LAUGHHUNN et al.,
Defendants.
_______________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendants moved
for summary judgment (Dkts 28 & 58), and the matter was referred to the Magistrate Judge. The
Magistrate Judge issued a Report and Recommendation (R&R, Dkt 85), recommending that both
motions be granted. The matter is presently before the Court on Plaintiff’s objections (Dkts 86 &
87) to the Report and Recommendation. Plaintiff has also filed a “Notice to Court and Request for
Appointed Counsel,” which was docketed as a Motion to Appoint Counsel (Dkt 83); a “Motion
instanter to enlarge page limit on objections, motion for further discovery, motion for appointment
of counsel and for a perjury hearing” (Dkt 88); an “Extraordinary Letter to All,” which was docketed
as a Motion for Order to Place in Abeyance for 60 Days (Dkt 93); and an “Urgent Prayer to Court,”
which was docketed as a Motion for Reconsideration (Dkt 94). The Court denies the objections,
denies Plaintiff’s motions, and issues this Opinion and Order.
I. Plaintiff’s Objections to Report & Recommendation
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has
performed de novo consideration of those portions of the Report and Recommendation to which
objections have been made. Plaintiff essentially presents two arguments in his objections.
First, Plaintiff argues that the Magistrate Judge did not properly apply the standard for
reviewing motions brought under FED. R. CIV. P. 56 (Pl. Obj., Dkt 87 at PageID.500). According
to Plaintiff, the Magistrate Judge did not construe the facts in the light most favorable to him, the
nonmovant, but “adopt[ed] as true every word of the defendants” (id. at PageID.500-508; Dkt 86 at
PageID.474-475).
The Court disagrees. The Magistrate Judge not only recited the correct standard of review
(R&R, Dkt 85 at PageID.462-464) but also properly applied the standard of review in deciding that
summary judgment in favor of Defendants was appropriate. For example, with regard to Defendant
Kolk, the Magistrate Judge determined that even if the Court assumed that Plaintiff suffers from
corneal dystrophy, as Plaintiff alleges, summary judgment was nonetheless warranted where Dr.
Kolk asserted that he declined to prescribe tinted lenses and eye drops for Plaintiff because such was
not warranted based on the results of his examination of Plaintiff’s eyes (id. at PageID.467). The
Magistrate Judge explained that the Eighth Amendment is not implicated by claims of negligent
diagnosis, negligent treatment or medical malpractice (id.).
Second, Plaintiff argues that the Magistrate Judge erred in denying his “previous discovery
motions and then claiming I have not come forward with evidence” (Pl. Obj., Dkt 87 at PageID.514;
Dkt 86 at PageID.476). Plaintiff emphasizes that he “did come forward with substantial evidence,”
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including his sworn deposition and medical files (Pl. Obj., Dkt 87 at PageID.514-527; Dkt 86 at
PageID.477-478).
Again, Plaintiff’s objection fails to demonstrate any factual or legal error in the Magistrate
Judge’s analysis or conclusion. The Magistrate Judge considered Plaintiff’s evidence, including his
deposition and medical files, but concluded that Plaintiff’s allegations or concerns do not implicate
the Eighth Amendment (R&R, Dkt 85 at PageID.467-468).
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court.
II. Plaintiff’s Motions
Plaintiff’s “Urgent Prayer to Court,” which was filed on May 19, 2016 and docketed as a
Motion for Reconsideration (Dkt 94), seeks reconsideration of this Court’s January 19, 2016 Order
denying Plaintiff’s two earlier motions for reconsideration (Order, Dkt 79). The Court will deny this
motion inasmuch as there is no provision for seeking reconsideration of an order denying
reconsideration, particularly at this late date.
Plaintiff’s remaining three motions—his “Notice to Court and Request for Appointed
Counsel,” which was docketed as a Motion to Appoint Counsel (Dkt 83); “Motion instanter to
enlarge page limit on objections, motion for further discovery, motion for appointment of counsel
and for purjury [sic] hearing” (Dkt 88); and “Extraordinary Letter to All,” which was docketed as
a Motion for Order to Place in Abeyance for 60 Days (Dkt 93)—concern his request for appointed
counsel and a 60-day preparation period for new counsel.1 Because this Opinion and Order resolves
1
In his objections to the Report and Recommendation, Plaintiff similarly reiterated his request
for the appointment of counsel and for the Court to provide new counsel with 60 days to “develop
the truth” (Pl. Obj., Dkt 87 at PageID.509; Dkt 86-1 at PageID.495).
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the last pending claim in this case, the Court will deny these three motions as moot. See also Lavado
v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (appointment of counsel not justified where the Court
finds the pro se litigant’s complaint fails to state a claim or the chances of success are extremely
slim); Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985) (appointment of counsel “a futile act”
where complaint suffers from fatal jurisdictional defects).
This Court will also enter a Judgment. See FED. R. CIV. P. 58. This action was filed in forma
pauperis, and this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of the Judgment
would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkts 86 &87) are DENIED and the Report
and Recommendation of the Magistrate Judge (Dkt 85) is APPROVED and ADOPTED as the
Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment (Dkts 28
& 58) are GRANTED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (Dkt 83) is
DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s “Motion instanter to enlarge page limit on
objections, motion for further discovery, motion for appointment of counsel and for purjury [sic]
hearing” (Dkt 88) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s “Extraordinary Letter to All,” which was
docketed as a Motion for Order to place in abeyance for 60 days (Dkt 93) is DENIED as moot.
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IT IS FURTHER ORDERED that Plaintiff’s “Urgent Prayer to Court,” which was docketed
as a Motion for Reconsideration (Dkt 94) is DENIED.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the Judgment would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: May 23, 2016
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