Manemann v. Garrett et al

Filing 73

REPORT AND RECOMMENDATIONS re 57 Motion for Miscellaneous Relief filed by Wayne McGee Manemann, 19 Amended Complaint filed by Wayne McGee Manemann, 43 Motion for Discovery filed by Wayne McGee Manemann, 23 Motion for Summary Judgment, filed by Nathan Garrett, Donnie Stewart, 1 Complaint filed by Wayne McGee Manemann; recommends granting defendants' motion for summary judgment and dismissing as moot all other pending motions. Signed by Judge Robert Pitman. (mc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
WAYNE MANEMANN #1587365
V.
NATHAN GARRETT, Sheriff;
LLANO COUNTY, TEXAS; and
DONNIE STEWART, Llano Co. Jail
Administrator

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A-10-CA-601-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s amended complaint (Document No. 19); the Motion for
Summary Judgment, filed by Defendants Garrett and Stewart (Document No. 23); Defendant Llano
County’s Joinder in the Motion for Summary Judgment filed by Defendants Garrett and Stewart
(Document No. 40); Plaintiff’s responses to the Motion for Summary Judgment (Document Nos. 34
and 42); the Reply filed by Defendants Garrett, Llano County, and Stewart (Document No. 46);
Plaintiff’s Response to Defendant’s Objections and Motion to Strike, contained in Defendants’
response (Document No. 54); Plaintiff’s Motion to Deem Request Admitted (Document No. 43);
Defendants’ Response to Plaintiff’s Motion to Deem Request Admitted (Document No. 48);

Plaintiff’s Motion for an Order (Document No. 57); and Defendants’ Response to Plaintiff’s Motion
for Order (Document No. 59). Plaintiff, proceeding pro se, has been granted leave to proceed in
forma pauperis.
I. BACKGROUND
At the time he filed his amended civil rights complaint, Plaintiff was incarcerated in the
Jester Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Plaintiff complains of his previous confinement in the Llano County Jail.
According to Plaintiff, on July 4, 2008, Plaintiff was incarcerated in the Llano County Jail.
As part of the intake process, Plaintiff’s property, including his boots, were taken from him. Plaintiff
asserts “he has one leg 3½ inches shorter than the other with a rigid foot” and is unable to walk
without his “build-up boots.” On July 7, 2008, Plaintiff allegedly informed Donnie Stewart, Llano
County Jail Administrator, he cannot walk without the special boots. Stewart allegedly assured
Plaintiff he would get the boots. Plaintiff asserts he talked to Stewart weekly about his need for his
special boots, but Stewart never provided Plaintiff with his boots. As a result, Plaintiff asserts his
feet became sore and swelled.
On September 17, 2008 and October 16, 2008, Plaintiff was seen by Steven Alexander, P.A.
for medical treatment. According to Plaintiff, Alexander indicated he would refer Plaintiff to Dr.
Krause. Plaintiff asserts he told Alexander he had no money or insurance, and Alexander “said no
more.” Plaintiff was never seen by Dr. Krause.
While confined at the jail, Plaintiff was classified as a trusty and assigned to the kitchen as
a cook. Plaintiff maintains he had to hop wherever he went, causing constant pain and suffering,

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which Plaintiff contends could have been remedied by the return of his boots. According to Plaintiff,
other inmates were allowed to work in their own personal footwear.
On Friday, December 5, 2008,1 Plaintiff allegedly told Stewart he could not continue to work
due to his leg. According to Plaintiff, the leg had redness up to the knee and was swollen twice the
size of his other leg. Stewart allegedly told Plaintiff, if his condition continued, he would take him
to the doctor on Monday. Plaintiff allegedly asked a deputy for help later in the evening and was
taken to the emergency room. The following day, Plaintiff was released from custody on a personal
recognizance bond. On December 27, 2008, Plaintiff’s foot and leg were removed due to the
infection.
Plaintiff sues Nathan Garrett, Sheriff of Llano County; Llano County, Texas; and Donnie
Stewart, Llano County Jail Administrator.2 He seeks compensatory damages in the amount of
$500,000, an unspecified amount of compensatory damages against Defendants Stewart and Garrett
for deliberate indifference to serious medical needs, and an unspecified amount of punitive damages
against Defendants Stewart and Garrett.
Plaintiff claims:
1.

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[Garrett] failed to comply with the ADA by ignoring, failing to, or refusing
to supervise Stewart’s policies, practices and customs in working disabled
inmates without reasonable accommodations that were requested; by not
having written policies giving notice of rights to disabled persons who have
movement-restricted disabilities; by failing to train all deputies and jail
personnel;

Plaintiff mistakenly states December 15, 2008.

2

Plaintiff also sued Steven Alexander, P.A. However, Plaintiff subsequently moved to dismiss
Alexander as a defendant. Plaintiff’s request was granted.
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2.

[Garrett] by failing to have alternative methods of transportation for
movement-restricted disabled inmates that he knew, or should have known,
who would be subjected to the policies, practices, and customs of taking
movement-restricted aids from disabled inmates without any alternative other
than normal footwear that was obviously inadequate to those disabled
inmates including Plaintiff, that created unsafe living and working conditions
for those disabled, without a rational basis for doing so;

3.

Garrett and Stewart knew or should have known that they were punishing a
trustee inmate whom they knew or should have known with a movementrestricted disability should not have been forced to work or live in an
environment that inflicted pain and suffering unnecessarily while performing
work in inadequate footwear, due to their policy of taking all footwear of
normal or disabled inmates without having adequate policies and procedures
to insure the health and safety of movement-restricted inmates confined in
[the] Llano County Jail;

4.

Garrett and Stewart maintain a county jail [that] was not in compliance with
federal law, and in which attempted to force movement-restricted disabled
persons to fit into normal mode of similarly situated inmates. They failed to
maintain adequate cells and living areas so movement-restricted disabled
inmates could function normally or safely. They failed to maintain crutches
or wheelchairs for movement-restricted disabled inmates whom they deprived
of personal aids necessary to maintain safe and normal movement. They did
not provide notice to disabled inmates of their rights, and an adequate
grievance procedure to process their complaints of failure to accommodate
upon requested aids;

5.

Garrett and Stewart failed to insure adequate access to movement-restricted
disabled inmates in the work environment that was safe and would not cause
harm to the trustees, including [Plaintiff]. Garrett and Stewart forced
[Plaintiff] to perform work beyond his obvious physical disability and it was
causally related to his permanent injuries (e.g., loss of limb); and

6.

Garrett and Stewart, by policies, rules, procedures, customs, and practices,
failed to provide [Plaintiff] with adequate footwear while in jail while
allowing it to similarly situated inmates (normal) to work in.

Plaintiff claims Stewart was deliberately indifferent to his serious medical needs; Stewart,
Garrett and Llano County discriminated against him due to his disability by refusing his “build-up”
boots or reasonable alternatives; and Stewart, Garrett, and Llano County denied him equal protection
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of the laws by denying him adequate footwear while non-disabled inmates were provided safe
footwear.
Defendants move for summary judgment. They argue Plaintiff failed to exhaust his
administrative remedies. Defendants further argue there is no evidence of any custom or practice
of Llano County that caused injury to Plaintiff. Defendants Garrett and Stewart also assert their
entitlement to qualified immunity.
On June 17, 2011, the Court held an evidentiary hearing in this case with regard to the
exhaustion issue. Testimony was received by Plaintiff Wayne Manemann #1587365, Offender
David Lawless #655717, and Offender Rupert Byron Fowlkes #1634748, all of whom had previously
been confined in the Llano County Jail.
II. ANALYSIS
A.

Summary Judgment Standard

A court will, on a motion for summary judgment, render judgment if the evidence shows that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Int’l Shortstop, Inc. v.
Rally Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
When a motion for summary judgment is made and supported, an adverse party may not rest upon
mere allegations or denials but must set forth specific facts showing there is a genuine issue for trial.
Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED . R. CIV . P. 56.3
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Effective December 1, 2010, Rule 56 was amended. Although there is a slight language change
and a change in the designation of subsections, the legal standard remains the same. See FED . R. CIV .
P. 56(a) (eff. Dec.1, 2010) (“The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”).
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Both movants and non-movants bear burdens of proof in the summary judgment process.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). The movant with the burden of
proof at trial must establish every essential element of its claim or affirmative defense. Id. at 322,
106 S. Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the
absence of evidence on an essential element of the non-movant’s claims or affirmative defenses. Id.
at 323-24, 106 S. Ct. at 2554. At that point, the burden shifts to the non-moving party to “produce
evidence in support of its claims or affirmative defenses . . . designating specific facts showing that
there is a genuine issue for trial.” Id. at 324, 106 S. Ct. at 2553. The non-moving party must
produce “specific facts” showing a genuine issue for trial, not mere general allegations. Tubacex
v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
In deciding whether to grant summary judgment, the Court should view the evidence in the
light most favorable to the party opposing summary judgment and indulge all reasonable inferences
in favor of that party. The Fifth Circuit has concluded “[t]he standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational
trier of fact could find for the non-moving party based upon the evidence before the court.” James
v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita, 475 U.S. at 586, 106 S. Ct. 1356)).
To the extent facts are undisputed, a Court may resolve the case as a matter of law. Blackwell v.
Barton, 34 F.3d 298, 301 (5th Cir. 1994).
B.

Exhaustion

Plaintiff is required under § 1997e(a) to exhaust administrative remedies before filing suit.
See 28 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Johnson v. Johnson, 385 F.3d

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503, 515 (5th Cir. 2004). Proper exhaustion is required, meaning that the prisoner must not only
pursue all available avenues of relief; he must also comply with all administrative deadlines and
procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). Because exhaustion is an
affirmative defense, Defendants, the parties moving for summary judgment, have the burden to
demonstrate Plaintiff failed to exhaust available administrative remedies and was required to
establish “beyond peradventure all of the essential elements of the defense of exhaustion to warrant
summary judgment” in their favor. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).4
The Llano County Jail Inmate Rules and Procedures provide:
The object of the grievance plan is to provide inmates the opportunity and procedure
to file a grievance. The grievance shall be filed, in the form of a written statement
promptly following the incident, sealed in an unstamped envelope or forwarded
through the regular mail collection system to the designated Grievance Board. The
grievance shall provide details in writing on the right or privilege allegedly violated,
persons involved, witness[es], times and dates and other pertinent details within
sixty- (60) days of the grievance. A written response from the grievance officer shall
be submitted to the inmate in writing within fifteen (15) [days] to include findings
and actions taken by the Grievance Officer. In cases of emergency grievances where
delay could subject the inmate to personal injury or other damages, the Jail
Administrator, Chief Deputy, or Sheriff, shall be immediately notified and action
shall be taken to prevent personal injury and/or other damage. The inmate will be
safeguarded against any reprisals in the resolutions of a grievance. Inmate may
request a hearing before the Grievance officer if finding and action taken by the
board is disputed. If the decision made by the Grievance board or the inmate disputes
the Grievance review board he may appeal to the Sheriff. The Sheriff will review the
grievance and a written statement will be given to the inmate on the Sheriff’s
decision. The Sheriff’s decision is final. If the grievance is substantiated, the
grievance board shall reinstate lost privileges and may add to, additional privileges.
Only the Sheriff, Chief Deputy or Chief Jailer will release any information on a
grievance case.

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In Dillon, the Fifth Circuit joined the Seventh, Ninth, and Eleventh Circuits and held factual
disputes concerning exhaustion may be resolved by the judges. Id. at 271.
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Id.; Def. MSJ Ex. A-1. The rule book further provides, “Inmates may request medical or dental
service on a request form. When a request for medical or dental is submitted to the jailer on duty,
this request will be given to the Jail Administrator.” Id.
Viewing the evidence in the light most favorable to Plaintiff, the summary judgment evidence
and the testimony presented at the evidentiary hearing reveal no genuine issue of material fact on the
issue of whether Plaintiff completed the required steps of the Llano County Jail grievance procedure.
During the hearing, Plaintiff admitted he submitted no grievances or medical requests during his
confinement at the Llano County Jail. Defendants also presented summary-judgment evidence that
Plaintiff did not submit any grievances or medical requests during his confinement. See Def. MSJ
Ex. A.
Plaintiff declares under penalty of perjury and testified at the hearing that he has never seen
a written set of rules for the jail. See Plaintiff’s Resp. Ex. 1-A. He attests he has never been given
a copy of the Llano County Jail’s rule book. Id. Plaintiff argued at the hearing that the grievance
procedures contained in the rule book are a sham, are only used to protect the jail officials, and are
never used. Plaintiff concludes there were no administrative remedies available to him. He also
argues Defendants failed to show the grievance system would have been available after he was
released on bond.
Plaintiff admits he signed the Llano County Admission Form, which states “I Wayne
Manemann have been given a copy of the inmate rules to read. I know that it is my responsibility
to read and to follow all rules set out in the handbook. I am aware that I may view the rulebook on
request.” Id. at Ex. 5-E; Def. MSJ Ex. A-2. At the hearing, Plaintiff admitted he signed the onepage form but did not write his name in the section referring to the rule book. Plaintiff explains he
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signed his name at the bottom of the form where he acknowledged he received a spork,5 cup and
blankets. In addition, Plaintiff testified that he did not read the form he signed and was not allowed
to keep a copy of the form to read later. Plaintiff further testified that he was not prevented from
reading the form but was perhaps incapacitated due to drugs and alcohol consumption.
David Lawless testified he could not recall whether he was given the one-page form to sign
and stated he was not given any property during his confinement in the holding tank. Lawless stated
he was not aware of a grievance procedure at the Llano County Jail, he did not receive a copy of the
jail’s rule book, and the grievance procedures were not posted in the jail. Lawless explains
grievances or medical requests were handled verbally at the Llano County Jail. Lawless admitted
in other county jails, such as Fort Bend County and Bastrop County, inmates are usually given a rule
book. He further admitted filing written complaints or grievances was not unusual in the other
county jails.
Rupert Byron Fowlkes also testified that he could not recall whether he was given the onepage form to sign regarding the receipt of property. He denies any rules were explained to him when
he was received into the Llano County Jail and attests he was unaware of the rules and regulations
of the jail. He testified he was not provided a copy of the rule book for the Llano County Jail. He
further testified he had never heard of any detainees filing grievances during their confinement at the
Llano County Jail but also indicated he was not aware if detainees were generally unhappy at the jail
because he was housed in a solo cell. Fowlkes testified he was provided his prescription medication
during his confinement at the Llano County Jail but never had to request medical treatment.

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A spork is a combination spoon and fork.
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The Court finds Plaintiff’s testimony, along with the testimony of Offender Lawless and
Offender Fowlkes, to be credible in that Plaintiff, Lawless and Fowlkes were not provided copies
of the jail’s rule book and were not informed of the grievance procedures or medical treatment
request procedures at the Llano County Jail. Although counsel for Defendants attempted to rely
upon the affidavit of Defendant Stewart to prove otherwise, Stewart did not appear at the hearing;
thus, the Court cannot judge his credibility.
Dealing with a claim like Plaintiff’s, the Seventh Circuit found that “[a] prisoner’s lack of
awareness of a grievance procedure ... does not excuse compliance.” Twitty v. McCoskey, 226 Fed.
Appx. 594, 596 (7th Cir. 2007) (unpublished). Likewise, the Sixth Circuit has rejected an inmate’s
argument that exhaustion was unavailable to him because he was unaware of the system. Brock v.
Kenton County, 93 Fed. Appx. 793 (6th Cir. 2004) (unpublished). The Tenth Circuit ruled similarly.
Gonzales-Liranza v. Naranjo, 76 Fed. Appx. 270 (10th Cir. 2003) (unpublished) (rejecting prisoner’s
claim that he was unaware of procedures and thus could not utilize them). The Tenth Circuit
reasoned: “[t]hus, even accepting plaintiff’s allegation that he was unaware of the grievance
procedures, there is no authority for waiving or excusing compliance with PLRA’s exhaustion
requirement.” Id. at 273. In that case, the prisoner claimed he had not been informed how to file a
grievance or given an inmate handbook describing the procedure, but he did not claim the
correctional facility did anything to frustrate or prevent him from utilizing the grievance procedures.
Id. at 273. The Eighth Circuit has also explained, “[s]ection 1997e(a) says nothing about a prisoner’s
subjective beliefs, logical or otherwise, about the administrative remedies that might be available
to him. The statute’s requirements are clear: If administrative remedies are available, the prisoner
must exhaust them.” Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
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The Fifth Circuit has long recognized the importance of ensuring that inmates have avenues
for discovering the procedural rules governing their grievances. Dillon v. Rogers 596 F.3d 260, 268
(5th Cir. 2010) (citing Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir. 2003) (per curiam)
(premising ruling that remedies were available on prisoner’s knowledge of grievance procedures);
Ferrington v. La. Dep’t of Corrs., 315 F.3d 529, 532 (5th Cir.2002) (per curiam) (premising ruling
that remedies were available on fact that prisoner “was well aware of the general procedural
requirements described in the inmate handbook”)). However, the court has held ignorance of the
exhaustion requirement does not excuse a plaintiff’s failure to exhaust. Gonzalez v. Crawford,
No. 10-20398, 2011 WL 1057577 (5th Cir. 2011) (unpublished).
Plaintiff does not allege and did not testify that he requested to review the rule book but was
denied or that jail officials misled him about the grievance procedure. While the Court is
sympathetic to Plaintiff’s circumstances, there is no suggestion or evidence in this case of any
affirmative misconduct on the part of jail officials that prevented Plaintiff from learning about and
pursuing the grievance procedure. Although Plaintiff testified the grievance system was on paper
only and was not used, there is no evidence Plaintiff ever attempted to avail himself of the formal
written grievance system or that a written grievance would have been ignored by jail officials.
Plaintiff admits no one told him he should not file a grievance and he was not refused paper and a
pen. Moreover, Plaintiff admitted at the hearing he had been confined on multiple occasions in
county jails in Llano County, Travis County, Harris County and Williamson County. With the
exception of Llano County, Plaintiff admitted standard procedures during intake at county jails
include going over the rules and regulations of the jail and being provided a copy of the jail’s rule
book or having the rule book made available in the inmate’s cell. Plaintiff admitted the process
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included receiving information regarding the grievance procedures at the jail. Plaintiff testified he
filed grievances while confined in other jails and was aware of the appeals process.
The Court finds a grievance system and a request for medical treatment procedure were
available at the Llano County Jail, which Plaintiff did not pursue. The Court further finds Plaintiff
lacked knowledge of the grievance system or the request for medical treatment procedure. However,
Plaintiff was not without responsibility to request and review the jail’s rule book or inquire into
whether a grievance system existed. In light of Plaintiff’s previous experiences in other county jails
and the fact Plaintiff admitted to using various county jail’s grievance procedures, it was
unreasonable for Plaintiff to not file a written grievance or inquire into whether a formal grievance
procedure or request for medical treatment procedure existed during his confinement in the Llano
County Jail.
In this case, Plaintiff began requesting and complaining about his boot almost immediately
after his incarceration in the Llano County Jail on July 4, 2008. When Plaintiff’s boots were not
returned, he should have filed a grievance. Accordingly, Plaintiff failed to exhaust his administrative
remedies with regard to all of his claims concerning the failure to provide him with his special boot.
Because Plaintiff failed to start, let alone finish, the administrative review process with regard to
those claims, summary judgment should be granted.
However, as noted by Plaintiff, Defendants fail to show the grievance system was still
available to Plaintiff after he was released on bond on December 6, 2008. In Allard, a jail inmate
was subjected to unsanitary living conditions and exposed to sewage and pesticides, but he did not
file any grievances at the jail. Allard v. Anderson, 260 Fed. Appx. 711, 712 (5th Cir. 2007). After
his transfer out of the jail, he discovered he had contracted hepatitis C and had thyroid problems.
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Id. The Circuit Court held because the inmate learned of his injury when he was no longer at the
jail, he had no available remedies to exhaust with respect to his hepatitis and thyroid problems. Id.
at 714. However, the Fifth Circuit upheld the dismissal of Allard’s claims related to unsanitary
conditions, because Allard was aware of those conditions while housed at the jail and could have
used the grievance process during his confinement. Id. at 714.
The only claim remaining in this case is for inadequate medical care against Defendant
Stewart. Plaintiff alleges Stewart refused to seek medical care for Plaintiff on December 5, 2008.
Defendants provide the Court with no evidence indicating Plaintiff could have filed a grievance
regarding this incident after he was released on bond the following day. The grievance procedure
for the jail provides “inmates” an opportunity to file a grievance. Once Plaintiff was released on
bond, he was no longer an “inmate.” See Plaintiff’s Resp. Ex. 5-E; Def. MSJ Ex. A-1. Accordingly,
Defendants are not entitled to summary judgment regarding the Plaintiff’s alleged failure to exhaust
available administrative remedies with respect to his claim against Defendant Stewart for inadequate
medical care.
C.

Medical Care6

To succeed in this § 1983 action, Plaintiff must establish Defendant Stewart was deliberately
indifferent to his serious medical condition, “an extremely high standard to meet.” Domino v. Tex.
Dept of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001); see also Farmer v. Brennan, 511 U.S.

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Because Plaintiff was a pretrial detainee at the time in question, his rights derive from the
Fourteenth Amendment, not the Eighth Amendment. See Hare v. City of Corinth, 74 F.3d 633, 639
(5th Cir. 1996) (en banc) (stating that pretrial detainee’s rights “flow from both the procedural and
substantive due process guarantees of the Fourteenth Amendment”). Having said this, because the
standard is essentially the same for both pretrial detainees and post-conviction prisoners, cases
applying the Eighth Amendment are still relevant to the Court’s analysis.
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825, 835, 114 S. Ct. 1970 (1994) (“[A] prison official cannot be found liable under the Eighth
Amendment ... unless the official knows of and disregards an excessive risk to inmate health or
safety....”). A delay in medical care is a constitutional violation only if it is due to deliberate
indifference and the delay results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th
Cir. 1993). Negligence and medical malpractice do not give rise to a § 1983 cause of action, and an
inmate’s disagreement with his medical treatment does not establish a constitutional violation.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
According to Plaintiff, Defendant Stewart on Friday, December 5, 2008, indicated he would
take Plaintiff to the doctor on Monday if his condition continued. Plaintiff admits he was taken to
the hospital several hours later by a different jailer when his condition worsened. Plaintiff does not
allege the eight-hour delay in treatment resulted in any substantial harm. Accordingly, Defendant
Stewart is entitled to summary judgment with respect to Plaintiff’s claims relating to his medical care
on December 5, 2008.
III. CONCLUSION
In sum, the Court is of the opinion Plaintiff failed to exhaust his administrative remedies with
regard to all of his claims concerning the failure to provide him with his special boot. Plaintiff’s
remaining claim, alleging Defendant Stewart was deliberately indifferent to Plaintiff’s serious
medical condition, cannot withstand summary judgment.
IV. RECOMMENDATION
The undersigned recommends that the District Court GRANT Defendants’ Motion for
Summary Judgment and DISMISS AS MOOT all other pending motions.

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V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within 14 days after the party is served with a copy of the Report shall bar
that party from de novo review by the district court of the proposed findings and recommendations
in the Report and, except upon grounds of plain error, shall bar the party from appellate review of
unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466, 472-74 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415, 1428-29 (5th Cir. en banc, 1996).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 21st day of June, 2011.

_____________________________________
ROBERT PITMAN
UNITED STATES MAGISTRATE JUDGE

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