Swyck v. Davis et al

Filing 50

ORDER DENYING PLAINTIFF'S MOTION AND GRANTING HIM ADDITIONAL TIME TO FILE WRITTEN OBJECTIONS denying 49 MOTION FOR LEAVE FOR DEFENCES OBJECTIONS MEDICAL EXAM ( Objections to M&R due by 10/6/2017)(Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GARY SWYCK,
Plaintiff,
VS.
LORIE DAVIS, et al,
Defendants.

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September 18, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-489

ORDER DENYING PLAINTIFF’S MOTION AND GRANTING HIM
ADDITIONAL TIME TO FILE WRITTEN OBJECTIONS
In this prisoner civil rights action, Plaintiff Gary Swyck alleges Eighth
Amendment claims of failure to protect. Plaintiff is a prisoner in the Texas Department
of Criminal Justice, Criminal Institutions Division (TDCJ-CID) and is currently confined
at the Polunsky Unit in Livingston, Texas. Plaintiff’s allegations in this civil rights action
arise in connection with his confinement at the McConnell Unit in Beeville, Texas.
Pending before the Court is Plaintiff’s “Motion for Leave for Defences [sic] Objections
Medical Exam.” (D.E. 49).
On November 14, 2016, Plaintiff filed his original complaint naming the following
eight (8) individuals as defendants: (1) Brad Livingston, former TDCJ-CID Director; (2)
Kenneth Putnam, Assistant Warden; (3) Corey Furr, Assistant Warden; (4) Major
McKee; (5) Major Michael Alsobrook; (6) Emil Garza, TDCJ-CID Assistant Regional
Director; (7) Patricia Chapa, TDCJ-CID Assistant Regional Director; and (8) Kimberly

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Ward, TDCJ Assistant Regional Director. (D.E. 1, pp. 2-3). Plaintiff alleges that prison
officials at the McConnell Unit failed to protect him from inmates who had access to
Plaintiff’s food trays and repeatedly poisoned Plaintiff’s food. Plaintiff sues Major
McKee because he was the TDCJ official in charge of administrative segregation at the
McConnell Unit where Plaintiff was housed during the times relevant to this lawsuit.
On December 8, 2016, the undersigned issued a Memorandum and
Recommendation (December 8, 2016 M&R), recommending that the Court: (1) dismiss
Plaintiff’s claims for monetary damages against all defendants in their official capacities;
(2) retain Plaintiff’s Eighth Amendment failure to protect claim against Major McKee in
his individual capacity; and (3) dismiss Plaintiff’s remaining claims against each of the
other defendants for failure to state a claim and/or as frivolous. (D.E. 8). Thereafter,
pursuant to Federal Rule of Civil Procedure 35, Plaintiff filed a Motion for Leave for a
Physical Examination. (D.E. 30). On March 14, 2017, the undersigned denied this
motion, concluding that Rule 35 may not be used by Plaintiff either to secure medical
treatment for himself or to obtain expert witness testimony on his behalf. (D.E. 31).
On May 22, 2017, Major McKee filed a motion for summary judgment with
respect to Plaintiff’s Eighth Amendment claim. (D.E. 42). Plaintiff did not respond to
the summary judgment motion.

On August 21, 2017, the undersigned issued a

Memorandum and Recommendation (August 21, 2017 M&R), in which it recommended
granting Major McKee’s summary judgment motion and dismissing Plaintiff’s Eighth
Amendment claim with prejudice. (D.E. 47).

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On August 21, 2017, the undersigned also entered an order granting Major
McKee’s motion for protective order with regard to Plaintiff’s discovery requests. (D.E.
48). The undersigned further struck Plaintiff’s motion for discovery from the record and
denied the following motions without prejudice to renew should the August 21, 2017
M&R not be adopted: (1) Plaintiff’s motions to compel discovery and/or to deny
protection order (D.E. 36, 38); and (2) Plaintiff’s motions for settlement (D.E. 37, 39).
In his present motion, Plaintiff essentially asks the undersigned to reconsider the
previous orders denying him a physical examination and motions to compel discovery.
(D.E. 49). Plaintiff states that he was waiting on his discovery requests before filing a
response to the summary judgment motion. (D.E. 49, p. 1). He further complains about
being denied a physical examination as well as an MRI or CAT scan which, according to
Plaintiff, would reveal the extent of his poisoning. (D.E. 49, p. 2).
Plaintiff, however, provides nothing to cause the undersigned to reconsider any
aspect of the orders issued on March 14 and August 21, 2017. As stated in his motion for
protective order, Major McKee disclosed “all of Plaintiff’s grievances, medical records,
from July 2014 to January of 2017, and the “No Records Affidavits” for any I-60’s,
Emergency Action Center Reports, and the Office of the Inspector General Reports.”
(D.E. 34, p. 2). The medical records submitted to the Court depict Plaintiff’s medical
condition and treatment received during this time period, and Plaintiff fails to indicate
how any additional medical evidence could be relevant to his claim. For the reasons
stated in the March 14 Order, Plaintiff also is not entitled to a medical examination based
on his speculation that it could support his claims of being poisoned.
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Accordingly, IT IS ORDERED that Plaintiff’s “Motion for Leave for Defences
[sic] Objections Medical Exam,” construed as a motion for reconsideration (D.E. 49), is
DENIED.
Plaintiff further appears to advance arguments in his motion that challenge the
findings and conclusions of the undersigned’s August 21, 2017 M&R. However, the
record to date reflects that Plaintiff has not filed any formal written objections.
Accordingly, the undersigned GRANTS Plaintiff until OCTOBER 6, 2017 to file his
written objections to the August 21, 2017 M&R’s proposed findings, conclusions, and
recommendation. Plaintiff is further INSTRUCTED to label his written objections on
the top of the first page as “Plaintiff’s Objections to the August 21, 2017 Memorandum
and Recommendation.”
ORDERED this 18th day of September, 2017.
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Jason B. Libby
United States Magistrate Judge

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