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Terrell v. Davis

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

July 22, 2019

PATRICIA DENIESE DAVIS, et al., Defendants.



         United States Magistrate Judge Charles H. Weigle recommends denying Plaintiff Terrell's first motion to compel and granting the Defendants' motion for summary judgment. Doc. 59. After the Recommendation was entered, the Court received numerous documents from the Plaintiff, including a second motion to compel (Doc. 60), two motions for an extension of time to file objections (Docs. 65; 68), a motion to vacate the Magistrate Judge's Order and Recommendation (Doc. 70), and a “Motion to Remand; or Return; or Reject Pursuant Rule 72, FRCP” (Doc. 72). For reasons discussed below, those motions are DENIED. The Court also treats the Plaintiff's filings as objections, so pursuant to 28 U.S.C. § 636(b), the Court reviews the Recommendation de novo. After review, the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation (Doc. 59) is ADOPTED, and the Defendants' motion for summary judgment (Doc. 46) is GRANTED.

         I. Background

         The Plaintiff alleges he was assaulted by other inmates and was injured in his chest, elbow, and hip. Doc. 59 at 1. Prison medical staff referred him for CT scans and X-rays. Id. at 2. On August 3, he was transported to a regional hospital and then to a hospital in Augusta for X-rays of his pelvis, arm, and chest, as well as CT scans of his head and neck. Id. Although the medical imaging revealed no abnormalities apart from soft-tissue swelling in the elbow, the Plaintiff now believes he had a broken arm at the time and continues to suffer from a hairline fracture in his hip. Id. at 3. He brought suit against Defendants Kitchens and Dixon, who accompanied him to the hospital, for deliberate indifference to serious medical needs, alleging they attempted to dissuade the Plaintiff and the doctors from performing some of the X-rays and CT scans. Id.

         II. Plaintiff's Second Motion to Compel

         The Plaintiff's first motion to compel sought documents related to the deposition and additional time to compare his written deposition with the videotape of his deposition to check for errors. See generally Doc. 55. The deposition was taken in November 2018, and the Plaintiff submitted corrections in January 2019 and drafted his motion to compel in February 2019, but he did not mail it to the Court until April 18, 2019, so the Magistrate Judge denied that motion for undue delay. Docs. 46-22 at 1; 55-1 at 1; 55 at 2; 59 at 4. The Magistrate Judge also denied the motion because the Plaintiff “articulate[d] no specific grounds to impugn the integrity of the transcription process.” Doc. 59 at 4.

         This second motion, which seeks audio files of the deposition for purposes of making corrections, was drafted on March 14, 2019 and appears to have been mailed on May 18, 2019. Docs. 60-1 at 1; 60 at 12-14. As with the first motion, “it cannot be said that Plaintiff acted ‘promptly' after any errors or irregularities in his deposition became ‘known or, with reasonable diligence, could have been known.'” Doc. 59 at 4. The Plaintiff states, in conclusory fashion, that the Defendants interfered with his legal mail, but nowhere does he explain his delay in filing the motions to compel.[1] Doc. 68 at 1-4. Also, as with the first motion, the Plaintiff provides no grounds to question the integrity of the court reporter's transcription. For those same reasons, the second motion to compel (Doc. 60) is DENIED.

         III. Plaintiff's Motions for an Extension of Time

         The Plaintiff also moved for an extension to file his objection. Docs. 65; 68. His first motion cites Federal Rule of Civil Procedure 60(b) for the proposition that the Court can grant relief from a final judgment, order, or proceeding based on excusable neglect. Id. at 1. Rule 60, however, does not apply, because the Recommendation is not a final decision. In fact, the Court has difficulty making sense of what this “motion” is, but in an abundance of caution, the Court treats it as an objection to the Recommendation and reviews de novo the portions of the Recommendation to which the Plaintiff objects.

         The Plaintiff also wishes for additional time in which to submit copies of an October 2017 X-ray which shows soft-tissue swelling in his elbow. To the extent the Plaintiff is moving for an extension of time to object, that motion (Doc. 65) is DENIED. As noted in the Recommendation, the Plaintiff's litigation behavior has been consistently characterized by delay, and there is no indication, apart from the Plaintiff's conclusory allegation of “missing records, ” that he could not have submitted this evidence earlier. Doc. 65 at 4. Also, it is clear to the Court that if he were allowed to submit the October 2017 X-ray, it would not make any difference. Even prolonged soft-tissue swelling is not the sort of “serious medical need” that, “if left unattended, poses a substantial risk of serious harm.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).

         The Plaintiff's second motion for an extension of time states in conclusory fashion: “Defendants counterparts inference with outgoing legal mail and non-legal mail; in addition to denial of legal supplies and or limiting law library sessions around or near dead-lines of responsive pleadings or magistrates R/R. Also undue delay of incoming and outgoing legal mail by (2) two months and non-legal mail.” Doc. 68 at 1. The motion also alleges the Plaintiff “has endured numerous dorm lockouts to the institutional gym only to return and find his current work materials and product lost, missing, or confiscated.” Id. at 4-5.

         The motion's bare, conclusory allegations do not provide a basis for granting an extension. Further, the Plaintiff has had ample opportunity to consider and respond to the Magistrate Judge's Recommendation, as evidenced by his motion to vacate the Recommendation, which the Court fully considers as an objection, despite its being untimely.[2] See Doc. 70. In short, the allegations of mail tampering are vague and nonspecific, and even if they were more specific, the Plaintiff has already had ample opportunity to consider and respond to the Recommendation. The Plaintiff's second request for an extension of time (Doc. 68) is DENIED.

         IV. “Motion to Remand; or Return; or Reject Pursuant Rule 72, FRCP”

         On July 16, 2019, the Plaintiff filed another motion (Doc. 72). Rule 72 of the Federal Rules of Civil Procedure allows parties to object to a Magistrate Judge's orders on non-dispositive motions (Rule 72(a)) or recommendations on dispositive motions (Rule 72(b)(2)) within 14 days of service of a copy of the order or recommendation. Whether the Plaintiff is objecting to the Magistrate Judge's Order regarding the motion to compel or to the Recommendation to grant summary judgment, the objection is more than a month late. See Docs. 59 at 9; 72 at 1, 14. The Court, therefore, need not consider it. Even if were timely, however, the filing consists mostly of the Plaintiff's personal medical opinions (Doc. 72 at 1-6) and quotes at length from his deposition (id. at 7-13). Nothing in the filing calls ...

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