Strickland v. Mondule et al

Filing 201

ORDER denying as moot and without prejudice 119 Motion for Summary Judgment; adopting Report and Recommendations 189 . Signed by Judge James P. Jones on 9/8/2014. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
HAROLD E. STRICKLAND,
Plaintiff,
v.
MIKE MONDULE, ET AL.,
Defendants.

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Case No. 7:12CV00559
ORDER
By: James P. Jones
United States District Judge

The parties have each timely objected to the Report and Recommendation of
the Honorable Pamela Meade Sargent, United States Magistrate Judge, filed on
June 23, 2014. Upon de novo review by this court of the portions of the Report
and Recommendation that have been objected to and the transcript of the bench
trial the magistrate judge conducted in this matter, it is ORDERED as follows:
1. The Report and Recommendation (ECF No. 189) is hereby ACCEPTED
(a) as to its findings and conclusions that Plaintiff failed to produce medical
evidence that his lack of out-of-cell exercise caused the exacerbation of his
digestive disorders, as required to succeed on his claims under 42 U.S.C. § 1983
and on his state law negligence and gross negligence claims; and (b) as to its
recommended disposition that judgment be entered for Defendants;

2. Plaintiff’s Objections (ECF No. 194) are OVERRULED, because I have
determined that the Report’s conclusion and recommended disposition are correct
even in light of the factual discrepancies and legal arguments Plaintiff asserts in his
objections; 1
3. Defendants’ Objections (ECF No. 192) are OVERRULED, because the
findings and conclusions to which they object have no bearing on my conclusion
that the Plaintiff failed to present evidence to establish a required element of his
claims;
4. Defendants’ Motion for Summary Judgment (ECF No. 119) under 42
U.S.C. § 1997e(a), regarding the Plaintiff’s failure to exhaust administrative
remedies before bringing this action as required under 42 U.S.C. § 1997e(a), is
DENIED as moot and without prejudice, based on my determination that
Defendants are entitled to judgment on the merits; and

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Plaintiff asserts that his inability to present medical evidence arose from the
magistrate judge’s refusal to require these defendants, who are not medical providers, to
produce for Plaintiff copies of his medical records and her refusal to grant his request for
appointment of a medical expert to evaluate his condition and testify on his behalf. I
affirm these rulings by the magistrate judge. Fed. R. Civ. P. 72(a). Plaintiff’s in forma
pauperis status under 28 U.S.C. § 1915(b) allows him to proceed without prepayment of
the filing fee, to have the court accomplish service of process on the Defendants, and to
have the transcript prepared at government expense for the court’s use to resolve his
claims. See 28 U.S.C. § 1915(b), (c) & (d). These services have been provided. The
statute, however, does not authorize the court to order, at government expense, the
development of an indigent litigant’s evidence, by appointment of a medical expert or
any other means.
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A separate Judgment will be entered forthwith, concluding this case.
ENTER: September 8, 2014

/s/ James P. Jones
United States District Judge

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