Nelson v. Stuart et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Granting in part 13 Motion to Dismiss/General filed by The Anoka County Jail, James Stuart; Adopting 31 Report and Recommendation. (Written Opinion). Signed by Senior Judge David S. Doty on 11/20/2012. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-3143(DSD/TNL)
Norlyn Stanley Nelson,
Plaintiff,
ORDER

v.
James Stuart, Sheriff Anoka
County, The Anoka County Jail,
Doctor John Loes, Anoka County
Jail Doctor,
Defendants.

This matter is before the court upon objections by pro se
plaintiff Norlyn Stanley Nelson and by defendant James Stuart to
the August 23, 2012, report and recommendation of Magistrate Judge
Tony N. Leung.

After a de novo review of the report, and based on

the file, record and proceedings herein, the court overrules the
objections and adopts the report and recommendation.

BACKGROUND
In this civil-rights dispute, Nelson alleges that he was
deprived of proper medical care while incarcerated in the Anoka
County Jail (Jail), in violation of the Eighth Amendment.

The

background of this case is fully set forth in the magistrate
judge’s report and recommendation, and the court only summarizes
the facts relevant to resolving the present objections.

Nelson

alleges that while incarcerated, he was denied medicine to treat
recurring migraine headaches.

Am. Compl. ¶ A.

Nelson also claims

that he was denied pain medication before and after hip replacement
surgery.

Id. ¶¶ G, J.

As a result, Nelson alleges that he

suffered excruciating pain and now has brain damage.

Id. ¶¶ B-C.

While at the Jail, Nelson repeatedly requested medical care.
Id. ¶ M.

Nelson claims that he submitted over 300 “kites” and

grievances

to

prison

condition.

officials

Id. ¶¶ M-N.

and

administrators

about

his

Nelson alleges that, on one occasion,

he

requested medication for his headaches and was told that Dr. John
Loes

needed

to

prescription.

“check

with

Id. ¶ F.

Administration”

before

writing

a

At one point, Nelson contacted an

administrative phone number or address with medical complaints.
Id. ¶ O.

Nelson alleges that he was eventually warned to stop

submitting “kites” and grievances.

Id. ¶ Q.

On April 10, 2012, Nelson filed an amended complaint alleging
§ 1983 claims against Stuart, the Anoka County Sheriff; the Jail;
and Dr. Loes, the Jail Doctor.

On August 23, 2012, the magistrate

judge recommended that the court grant in part the motion to
dismiss by Stuart and the Jail.

The magistrate judge determined

that when viewing the pleadings in a light most favorable to
Nelson,

Stuart

may

have

been

aware

of

Nelson’s

alleged

mistreatment. As to the Jail, the magistrate judge determined that
dismissal was proper because the entity was not amenable to suit.
Both Stuart and Nelson object to the magistrate judge’s report and
recommendation.

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DISCUSSION
The

court

reviews

the

magistrate judge de novo.

report

and

recommendation

of

the

28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b)(3); D. Minn. LR 72.2(b).
I.

Stuart’s Objections
Stuart argues that the allegations made by Nelson relate to

his supervisory role at the Jail. In support, Stuart explains that
“a general responsibility for supervising the operations of a
prison

is

insufficient

to

establish

the

personal

involvement

required to support liability.” Camberos v. Branstad, 73 F.3d 174,
176 (8th Cir. 1995).

To be liable, prison officials instead must

be “personally involved in or [have] direct responsibility for the
alleged deliberate [medical] indifference.”

Stewart v. Baker, 360

F. App’x 696, 697 (8th Cir. 2010) (citation omitted).
Nelson, however, raises allegations that implicate Stuart in
his individual capacity.

Nelson alleges that “at one point when

[he] was ‘begging’ to receive Imetrex [sic] whenever [he] felt a
migraine headache coming on, [Dr. Loes] said, ‘Let me check with
Administration.’”

Compl. ¶ F.

Nelson further alleges that “[i]n

Sheriff James Stuart’s jail’s medical waiting room/area, they/he
has an address and phone number for a place to contact for
complaints.
personnel

I contacted them and they said they have no medical

on staff,

complaints!”

so

Id. ¶ O.

they

can’t do anything

about medical

At this stage in the proceedings, viewing

3

the evidence in a light most favorable to Nelson, these allegations
are sufficient to state a claim against Stuart.

Therefore, the

court overrules Stuart’s objections.
II.

Nelson’s Objections
Nelson argues that he is “totally incapable of adequately

presenting [his] case and representing [him]self” and that “the
whole truth is most likely to be exposed when both sides are
represented by counsel.”

Pl.’s Objections 1.

The magistrate

previously denied Nelson’s motion to appoint counsel.
25.

See ECF No.

The court construes Nelson’s filing as either an objection to

the magistrate judge’s report and recommendation or a request to
reconsider the magistrate’s decision.

Under either posture, the

court declines to appoint counsel.
“[A] civil litigant has no constitutional or statutory right
to a court-appointed attorney.”

Rayes v. Johnson, 969 F.2d 700,

702 (8th Cir. 1992) (citation omitted). The appointment of counsel
“is committed to the discretion of the trial court.”

McCall v.

Benson, 114 F.3d 754, 756 (8th Cir. 1997) (citations omitted).
“The relevant criteria for determining whether counsel should be
appointed include the factual complexity of the issues, the ability
of the indigent person to investigate the facts, the existence of
conflicting testimony, the ability of the indigent person to
present the claims, and the complexity of the legal arguments.”
Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006)

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(citation omitted).

The magistrate judge, in his June 19, 2012,

order, properly applied these criteria in denying the motion to
appoint counsel.

See ECF No. 25.

Therefore, Nelson’s request for

appointment of counsel is denied.1

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Plaintiff’s objection [ECF No. 33] to the magistrate

judge’s report and recommendation is overruled;
2.

Defendant James Stuart’s objection [ECF No. 34] to the

magistrate judge’s report and recommendation is overruled;
3.

The magistrate judge’s report and recommendation [ECF No.

31] is adopted in its entirety;
4.

Defendants Anoka County Jail and Warden James Stuart’s

motion to dismiss [ECF No. 14] is granted in part consistent with
the Magistrate’s order dated August 23, 2012.

Dated:

November 20, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court

1

Nelson further objects, noting that some of his allegations
were omitted from the report and recommendation’s background
section, and arguing that the magistrate judge failed to consider
claims against non-movant Dr. Loes. Pl.’s Objections 5. As these
objections are not responsive to the report and recommendation, the
court does not consider them.
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