Wagner v. Turner

Filing 44

Order Adopting 41 Report and Recommendation. This Court overrules Plaintiff's Objection 43 and adopts the Report & Recommendation 41 . Plaintiff's Motion for Liability and Damages 37 is denied, and Defendants' Motion for Summary Judgment 39 is granted. Judge Jack Zouhary on 7/16/2018. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 3:16 CV 2046

Robert G. Wagner,

ORDER ADOPTING
REPORT & RECOMMENDATION

Plaintiff,
-vs-

JUDGE JACK ZOUHARY
Neil Turner, et al.,
Defendants.

INTRODUCTION
Plaintiff pro se Robert Wagner, a state prisoner incarcerated at North Central Correctional
Complex (NCCC), filed this Section 1983 Complaint claiming various NCCC employees were
deliberately indifferent to his serious medical need (Doc. 1). This case was referred to Magistrate
Judge James Knepp for general pretrial supervision (November 14, 2016, Non-Document Order).
Following discovery, Plaintiff filed a Motion for Liability and Damages (Doc. 37). Defendants filed
a Motion for Summary Judgment (Doc. 39), and Plaintiff filed a Motion to Stop Summary Judgment,
construed as an opposition brief (Doc. 40). Judge Knepp prepared a Report and Recommendation
(R&R), which recommends this Court deny Plaintiff’s Motion, grant Defendants’ Motion, and
dismiss the case with prejudice (Doc. 41).
Plaintiff objected (Doc. 43). The deadline for objections was June 7, 2018. Plaintiff’s filing
was signed on June 8 and mailed on June 11, 2018, which makes it untimely. Nevertheless, this Court
will address the Objection, as it appears from Plaintiff’s other filings that his receipt of the R&R may

have been delayed (see Doc. 42). Accordingly, this Court has reviewed de novo those portions of the
R&R challenged in the Objection. See 28 U.S.C. § 636(b)(1); Hill v. Duriron Co., 656 F.2d 1208,
1213 (6th Cir. 1981).
DISCUSSION
Case Management Issues
Several of Plaintiff’s Objections relate to the case schedule (Doc. 43 at ¶¶ 1, 2, 6). Plaintiff
argues he was unaware of the deadline for filing dispositive motions due to a typo in the Case
Management Conference Order, which listed the relevant date as February 5, 2017, rather than
February 5, 2018 (Doc. 24). Plaintiff further contends that based on this error, he was denied the
opportunity to take discovery.
Neither of these arguments is persuasive. Plaintiff’s professed confusion is belied by the
record, which shows that he filed both his own dispositive Motion (Doc. 37) and an opposition to
Defendants’ Motion for Summary Judgment (Doc. 40) in advance of the correct deadlines. Plaintiff’s
assertions about discovery (or lack thereof) are also contradicted by the record. The docket in this
matter reflects that Defendants timely served their Initial Disclosures under Federal Civil Rule 26(a)
(Doc. 27), and Plaintiff was provided copies of his medical records (Doc. 28). The Affidavit
submitted in support of Defendants’ Motion also references additional documents produced in
discovery (see Doc. 39 at 12).
Appointment of Counsel
Plaintiff also objects that the Magistrate Judge abused his discretion in denying Plaintiff’s
Motion for Appointment of Counsel (Doc. 43 at ¶ 5). But Plaintiff appears to acknowledge there is
no right to counsel in a civil proceeding, and the Magistrate Judge’s Order (Doc. 11) accurately states
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the facts and the law on this point. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)
(“Appointment of counsel in a civil case is not a constitutional right. . . . It is a privilege that is
justified only by exceptional circumstances.”) (citations omitted).
Evidentiary Issues
Plaintiff next argues that the Magistrate Judge erred in concluding there were no genuine
disputes of material fact sufficient to preclude summary judgment. Specifically, he asserts (1) the CPAP machine was taken by “non-medical staff” and Nurse Donahue, and was not immediately
replaced; (2) the purpose of the C-PAP machine is not to provide oxygen, but “to add forced air to
the [Plaintiff’s] lungs with moister [sic] in it”; and (3) Nurse Donahue’s Affidavit is not supported by
any evidence (Doc. 43 at ¶¶ 3, 7, 8).
The first point is consistent with the facts set forth in the R&R (see Doc. 41 at 2–3), and the
second point is not material to the legal analysis. As for the third point, Nurse Donahue’s Affidavit
is based on her review of Plaintiff’s medical records related to his pulmonary/respiratory treatment
at NCCC (Doc. 39 at 12). These records were produced in discovery, and Plaintiff identifies no
contrary evidence creating a genuine dispute of material fact.
Sleep Deprivation Claim
Finally, Plaintiff contends that Defendants’ actions were unconstitutional because removing
his C-PAP machine caused him sleep deprivation, which has been recognized as an Eighth
Amendment violation (Doc. 43 at ¶ 10). Construed liberally, the factual allegations underlying this
claim -- i.e., that Plaintiff was unable to sleep without the C-PAP machine -- were presented to the
Magistrate Judge in Plaintiff’s Motion for Liability and Damages (Doc. 37 at 3). But this is the first
time Plaintiff has attempted to raise an independent Eighth Amendment claim based on intentional
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sleep deprivation, as opposed to his claims for deliberate indifference to a serious medical need.
“Absent compelling reasons,” parties may not “raise at the district court stage new arguments or
issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th
Cir. 2000). Plaintiff identifies no compelling reason to grant an exception here; therefore, he has
waived this argument.
CONCLUSION
This Court overrules Plaintiff’s Objection (Doc. 43) and adopts the R&R (Doc. 41).
Plaintiff’s Motion for Liability and Damages (Doc. 37) is denied, and Defendants’ Motion for
Summary Judgment (Doc. 39) is granted.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
July 16, 2018

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