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Carswell v. Rogers

United States District Court, M.D. Georgia, Macon Division

March 23, 2017

JAMES JACKSON CARSWELL, Plaintiff,
v.
Doctor MICHAEL ROGERS, et al., Defendants.

          ORDER

          MARC T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE

         The remaining Defendants in this case-McClarin, Ayers, Fleming, and Rogers-have filed motions for summary judgment. Docs. 77 (McClarin); 85 (Ayers); 86 (Fleming); 87 (Rogers). United States Magistrate Judge Stephen Hyles recommends granting the motions. Doc. 98 at 18. The Magistrate Judge also recommends that the Court deny Carswell's Motion to Stop Movement (Doc. 75). Id. Carswell objects to all of these recommendations. Doc. 101. The Court has considered Carswell's objections and has made a de novo review of the Magistrate Judge's conclusions. The Court ADOPTS the Recommendation (Doc. 98) as modified.

         I. CARSWELL'S OBJECTIONS

         A. McClarin's Motion for Summary Judgment

         Carswell has two claims remaining against Defendant McClarin: a First Amendment retaliation claim and an Eighth Amendment deliberate indifference claim. Doc. 19 at 9 (order adopting Doc. 8 at 3-4 (recommendation setting out Carswell's claims)); Doc. 62 (order denying McClarin's motion to dismiss); see also Doc. 77-2 at 1-2 (McClarin's list of these claims). McClarin asserts that he is entitled to summary judgment because Carswell's claims are barred by the statute of limitations and his claims are without merit. Doc. 77-2 at 3, 10, 17. The Magistrate Judge agreed with McClarin's statute of limitations argument. Doc. 98 at 8-9.[1]

         Carswell objects, arguing that “the claims are not time barred since the continuing tort doctrine applies . . . .” Doc. 101 at 2. But, as the Magistrate Judge noted in the Recommendation, Carswell's claims cannot be saved by the continuing tort doctrine.

The undisputed facts are as follows. Defendant McClarin first examined Plaintiff remotely-via telemed-for a bleeding nose mole on March 28, 2011. Defendant McClarin diagnosed Plaintiff's bleeding mole as basal cell carcinoma, and requested that Plaintiff be sent to Ware State Prison for cryosurgery treatment. Defendant McClarin last saw Plaintiff on January 25, 2012. At that visit, Defendant McClarin told Plaintiff that cryosurgery treatment was not working, and Plaintiff would need a surgical resection. Plaintiff's mole inflicted with basal cell carcinoma was resected (removed) by another doctor-Dr. Ritter-on April 11, 2012. Plaintiff filed this action on December 10, 2014. This Court need not determine whether the continuing tort doctrine applies. Even assuming the continuing tort doctrine applied, the cause of action would have accrued no later than April 11, 2012-the date on which the medical attention requested by Plaintiff was performed. Plaintiff's Compliant filed some 2 years and 8 months later is thus outside the statute of limitations.

Doc. 98 at 8-9 (record citations omitted). Carswell has not offered any specific reason why this is wrong. “Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).

         Carswell argues that summary judgment is inappropriate because “the magistrate's referral to a fully developed record is based on information not provided to plaintiff since he was not served with numerous filings.” Doc. 101 at 2. But aside from McClarin's failure to timely serve his answer, Carswell does not explain what documents he did not receive.[2] Carswell was not prejudiced by McClarin's failure to timely serve his answer. The Magistrate Judge's Recommendation and the Court's ruling here rely on McClarin's motion for summary judgment and its supporting factual material, not McClarin's answer. See Fed. R. Civ. P. 56(c), (e); see also Doc. 90 (notice explaining summary judgment standard to pro se litigant). There is no dispute that Carswell was timely served with McClarin's motion for summary judgment; indeed, Carswell responded. See Docs. 77 at 8 (It is “further certified that a copy of the foregoing document has been served by first-class mail upon the following non-CM/EFP participant: James Jackson Carswell . . . .”)); 96 (Carswell's response). Further, Carswell was alerted that McClarin had filed an answer a month before McClarin filed his motion for summary judgment. See Docs. 73; 77. Accordingly, Carswell's objections are without merit.

         Having conducted a de novo review, the Court agrees with the Magistrate Judge; the statute of limitations clearly bars both of Carswell's claims against McClarin.[3]

         B. Ayers's Motion for Summary Judgment

         Carswell has First and Eighth Amendment claims remaining against Defendant Ayers. See Doc. 62 at 10 (clarifying Carswell's remaining claims against Ayers are “Eighth Amendment claims for inadequate treatment of the cancer on Carswell's ear, the denial of medication, and the denial of hernia surgery; and for . . . First Amendment retaliation claims for discontinuing medications, denying hernia surgery, and refusing to approve reconstruction surgery for Carswell's ear.”); see also Doc. 85-1 at 1-2 (Ayers's list of these claims). Ayers asserts that he is entitled to summary judgment because: (1) Carswell has failed to exhaust his administrative remedies as to all claims (except his Eighth Amendment claim for denial of hernia medication); (2) Carswell's claim for inadequate treatment of the cancer on his ear is barred by the statute of limitations; and (3) Carswell's First and Eighth Amendment claims are without merit; and (4) he is entitled to qualified immunity. Doc. 85-1 at 9, 12, 18, 20, 21.

         1. Eighth Amendment Inadequate Ear-Treatment Claim

         The Magistrate Judge concluded that Carswell's inadequate ear-treatment claim is barred by the statute of limitations. Doc. 98 at 9-10. Carswell objects, stating “that the continuing tort doctrine applies as to this defendant . . . .” Doc. 101 at 2. But Carswell's inadequate ear-treatment claim against Ayers, just as his related claim against McClarin, is not preserved by the continuing tort doctrine. The Magistrate Judge explained:

It is undisputed that Defendant Ayers submitted an urgent consult request on March 7, 2012 on behalf of Plaintiff for surgical excision of Plaintiff's basal cell carcinoma. Plaintiff's ear mole inflicted with basal cell carcinoma was in fact resected by Dr. Ritter on April 11, 2012. This Complaint was ...

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