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Palmer v. McCleod

United States District Court, S.D. Georgia, Waycross Division

February 9, 2018




         Presently before the Court are Plaintiff's and Defendants' Motions for Summary Judgment. (Docs. 31, 33.) Plaintiff filed a Response to Defendants' Motion. (Doc. 38.) Also before the Court are Plaintiff's Motion for Discovery Sanctions, Motion for Proposed Settlement, Motion in Limine, and Motion for Copy of the Docket Sheet and Subpoenas. (Docs. 29, 30, 42, 43.) For the reasons which follow, I RECOMMEND the Court DENY Defendants' Motion for Summary Judgment and DENY Plaintiff's Motion for Summary Judgment. The Court DENIES Plaintiff's Motion for Discovery Sanctions and Motion for Proposed Settlement, DISMISSES as premature Plaintiff's Motion in Limine, and DISMISSES as moot in part and DISMISSES as premature in part Plaintiff's Motion for Copy of the Docket Sheet and Subpoenas.


         Plaintiff became an inmate at Coffee Correctional Facility in December 2015, during which time he underwent an intake screening by Defendant Hulett.[1] (Doc. 38, p. 1.) Prior to arriving at Coffee Correctional, Plaintiff used corrective lenses for astigmatism in each eye, and he renewed this prescription every three to five years. (Id.) Plaintiff complained during his intake about having diminished vision and pain in his right eye. (Id. at p. 2.) Plaintiff submitted a health services request form on December 21, 2015, and stated he needed to see the eye doctor, an examination, and glasses. According to Plaintiff, this request was worded to show it was made due to pain and diminishing vision he experienced. Defendant Hester responded to the request by writing “opto” and later wrote an appointment had been scheduled. (Id.) However, Plaintiff's appointment was cancelled on the spot, despite Plaintiff informing medical staff he was experiencing pain and pressure in his eye, he was blind, and it was an emergency. Plaintiff informed Defendant McCleod during a follow-up visit for his seizures that he lost vision in his right eye, but Defendant McCleod wrote that Plaintiff was experiencing problems in his left eye. (Id.)

         Plaintiff submitted another health services request form on February 16, 2016, and stated he was having problems with his right eye, had pressure in it, and could not see out of the side of his right eye. (Id. at p. 3.) Defendant Hester wrote “opto” on the form. In addition, Plaintiff submitted yet another health services request form on March 9, 2016. In this request, Plaintiff stated he had made several previous requests and he was completely blind in his right eye, and he asked to see a doctor. (Id.) He was informed that his concerns had already been addressed. Plaintiff then filed a grievance on March 23, 2016, and complained about the delay in medical staff examining him regarding the blindness in his right eye and again stated he had an emergency. (Id.) Defendant Hulett examined Plaintiff using an ophthalmoscope and a Snellen eye chart. (Id. at p. 4.) Plaintiff had an appointment with Dr. Neal Lovett scheduled for April 1, 2016. (Doc. 39, p. 6.)

         During treatment for an unrelated medical problem on March 31, 2106, Defendant McCleod examined Plaintiff's eye, and that examination revealed Plaintiff had no vision in his right eye and could only see “black[.]” (Id.) Plaintiff saw Dr. Lovett the next day, who diagnosed Plaintiff with retinal detachment of his right eye and who made an appointment with Dr. Robert King at the Georgia Eye Institute for April 11, 2016. Dr. King confirmed Dr. Lovett's diagnosis, told Plaintiff he may need surgery, and explained the benefits and risks associated with the surgery. (Id. at p. 7.) Plaintiff verbally declined to go forward with the surgery on April 15, 2016, and later reduced his decision to writing on April 27, 2016. (Id. at p. 8.) Plaintiff has not had surgery to correct his right eye problems, as the risks of surgery outweigh the small chance of success the surgery could provide. (Id.)

         In their Motion for Summary Judgment, Defendants assert Plaintiff cannot show they were subjectively aware of his serious medical need or that they were deliberately indifferent to that need. (Doc. 33-3, p. 7.) Instead, Defendants allege there is nothing in the record indicating Plaintiff or medical staff at Coffee Correctional considered Plaintiff's right eye issue to be an urgent matter until March 23, 2016. At that time, Defendants contend Plaintiff complained of right eye pain and blindness and was examined and scheduled for an optometry appointment the following week. (Id.) Defendants aver that, once they were aware of Plaintiff's serious medical need, they (and other members of the medical staff) “acted swiftly and appropriately to treat Plaintiff's condition.” (Id. at p. 8.)

         Plaintiff states Defendants were deliberately indifferent to the pain he experienced in his right eye and that the delay in treatment caused the loss of vision in his right eye. (Doc. 31, p. 5.) Plaintiff maintains his loss of vision could have been avoided had Defendants treated his eye in a prompt manner when he first informed Defendants of the pain in his eye in December 2015. (Id. at pp. 5-6.) Plaintiff asserts the optometrist and Dr. King both told him that, had they examined Plaintiff in December 2015 or January 2016, they could have saved his vision. (Id. at pp. 6-7.)

         Prior to addressing summary judgment issues, the Court addresses the other Motions Plaintiff filed.


         I. Plaintiff's Motion for Discovery Sanctions (Doc. 29)

         Plaintiff asserts Defendants' counsel came to Coffee Correctional on May 19, 2017, to take his deposition. However, Plaintiff alleges he was not given notice prior to being taken for this deposition. (Doc. 29, p. 1.) Plaintiff also alleges he received a letter from Defendants' counsel on May 22, 2017, which was dated May 18, 2017, and noticed his deposition for May 19, 2017. (Id. at p. 2.) Plaintiff asserts Defendants' counsel did not provide him with reasonable notice of the deposition and, as a result, the Court should strike Plaintiff's deposition testimony.

         The Court DENIES Plaintiff's Motion. The Court accepts as true Plaintiff's assertion that he did not receive notice of the deposition until three (3) days after it occurred. (Doc. 33-2.) However, the Court's review of the transcript of Plaintiff's deposition reveals Plaintiff voiced no objection to the timing of the notice of his deposition or to the taking of his deposition. See Bracey v. Price, Civil Action No. 09-1662, 2012 WL 6015727, at *2 n.1 (W.D. Pa. Dec. 3, 2012) (denying plaintiff's motion to strike deposition based, in part, on claim of no advance notice of the deposition, as required by Federal Rule of Civil Procedure 30(b)(1)). Thus, Plaintiff cannot now object to having failed to receive reasonable notice of his deposition without having done so during the taking of his deposition. Fed.R.Civ.P. 30(c)(2) (“An objection at the time of the examination-whether . . . to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds.”)

         II. Plaintiff's Motion for Proposed Settlement (Doc. 30)

         In his Motion for Proposed Settlement, Plaintiff reiterates many of the assertions set forth in his Motion for Discovery Sanctions. Additionally, Plaintiff maintains he should be awarded compensatory and punitive damages in the amount of $2, 699, 968.25 due to the physical injury he suffered as a result of Defendants' deliberate indifference to his serious medical needs. (Doc. 30, pp. 10, 12-13.) Plaintiff represents he will sign a confidentiality agreement upon approval of this settlement and the payment of these funds. (Id. at p. 13.)

         The Court DENIES Plaintiff's Motion. While Plaintiff is free to make an offer of settlement to Defendants, he need not file a Motion to do so. In addition, the Court is under no obligation to order Defendants to enter into an agreement of settlement. Should this Report and Recommendation be adopted as the opinion of the Court, the parties are free to enter mediation through a private mediator or through the Court or proceed to trial.

         III. Plaintiff's Motion in Limine (Doc. 42)

         Plaintiff contends that Defendants' counsel asked many irrelevant questions relating to his personal life and his criminal record during his deposition. Plaintiff seeks to have certain portions of his deposition testimony excluded from the trial of his case. (Doc. 42, pp. 1-2.)

         The Court DISMISSES as premature Plaintiff's Motion at this time. Should this case proceed to trial, Plaintiff may ...

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