McWhirt v. Putman et al

Filing 148

ORDER granting 108 motion for summary judgment; denying motions for preliminary injunctive relief 121 122 123 128 ; adopting Report and Recommendations re 127 Report and Recommendations; adopting Report and Recommendations re 133 Report and Recommendations. Signed by District Judge Scott O. Wright on 2-3-09. (Morse, Judy)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

JAMES LINDELL McWHIRT, Register No. 1061089, Plaintiff, v. TRACY COWIN, Defendant.

) ) ) ) ) ) ) ) ) ) ORDER

No. 06-4182-CV-C-SOW

On August 5, 2008, United States Magistrate Judge William A. Knox recommended that defendant Cowin's motion for summary judgment be granted. On August 20, 2008, Judge Knox also recommended that plaintiff's motions for preliminary injunction be denied. The parties were advised they could file written exceptions to the recommendations, pursuant to 28 U.S.C. § 636(b)(1)(C). The court has conducted a de novo review of the record, including the exceptions filed by plaintiff on August 29 and September 10, 2008. The issues raised in plaintiff's exceptions were adequately addressed in the recommendations. Plaintiff fails to show that defendant Cowin, his former parole officer, with deliberate indifference, denied him necessary psychiatric care and psychotropic medications. Plaintiff has failed to show that Cowin's reliance on the professional evaluation and opinion of Debra Bobbinger of University Behavioral Health was improper. Plaintiff's claim that he was denied appropriate psychiatric treatment by defendant, is nothing more than a disagreement with his course of mental health treatment. The Constitution does not require that an inmate receive a particular course of treatment, or that an inmate see a requested specialist. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997), Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993). Plaintiff's allegation that this court denied him discovery of his medical/mental health records is without merit. The medical/mental health records plaintiff sought were his own, and

are held by nondefendant University Behavioral Health. There was no basis for this court to order such discovery, or to believe that plaintiff could not obtain a copy of his own medical records. Further, despite the allegation in his objections, plaintiff's deposition supports that Cowin was told by Debra Bobbinger that plaintiff did not need psychiatric care. Plaintiff's requests for preliminary injunctive relief, with the exception of his claim regarding access to courts, are challenges to his current conditions of confinement in the Missouri Department of Corrections (MDOC). These claims are all unrelated to the claims in this case and/or involve different defendants who are not parties to this case. The remaining claim in the pending lawsuit involves only actions allegedly taken by defendant Cowin, plaintiff's parole officer while plaintiff was on parole in 2005, and has nothing to do with his current confinement in MDOC. There is no threat of irreparable harm to plaintiff and no basis for this court to address these separate claims at this time. Plaintiff's preliminary injunctive relief claim regarding access to courts is also without merit. Plaintiff has suffered no prejudice in the instant action or any other legal action and concedes that as of June 27, 2008, he has had his legal materials and is no longer subject to the ten-day cell restriction. This court is persuaded that the recommendations of the Magistrate Judge are correct and should be adopted. Inmates who file an appeal with the United States Court of Appeals for the Eighth Circuit are required to pay the full $455.00 appellate filing fee, regardless of the outcome of the appeal. Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). The filing of a notice of appeal is considered a consent by the inmate to allow prison officials to deduct an initial partial appellate filing fee and later installments from the prisoner's account. IT IS, THEREFORE, ORDERED that the recommendations of August 5 and 20, 2008, are adopted. [127, 133] It is further ORDERED that plaintiff's motions for preliminary injunctive relief are denied. [121, 122, 123, 128] It is further

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ORDERED that defendant Cowin's motion for summary judgment is granted, and plaintiff claims are dismissed. [108]

/s/Scott O. Wright SCOTT O. WRIGHT Senior United States District Judge Dated: February 3, 2009

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