United States District Court, N.D. Ohio, Western Division
Robert G. Wagner, Plaintiff,
Neil Turner, et al., Defendants.
ORDER ADOPTING REPORT & RECOMMENDATION
ZOUHARY U.S. DISTRICT JUDGE
pro se Robert Wagner, a state prisoner incarcerated at North
Central Correctional Complex (NCCC), filed this Section 1983
Complaint claiming various NCCC employees were deliberately
indifferent to his serious medical need (Doc. 1). This case
was referred to Magistrate Judge James Knepp for general
pretrial supervision (November 14, 2016, Non-Document Order).
Following discovery, Plaintiff filed a Motion for Liability
and Damages (Doc. 37). Defendants filed a Motion for Summary
Judgment (Doc. 39), and Plaintiff filed a Motion to Stop
Summary Judgment, construed as an opposition brief (Doc. 40).
Judge Knepp prepared a Report and Recommendation (R&R),
which recommends this Court deny Plaintiff's Motion,
grant Defendants' Motion, and dismiss the case with
prejudice (Doc. 41).
objected (Doc. 43). The deadline for objections was June 7,
2018. Plaintiff's filing was signed on June 8 and mailed
on June 11, 2018, which makes it untimely. Nevertheless, this
Court will address the Objection, as it appears from
Plaintiff's other filings that his receipt of the R&R
may have been delayed (see Doc. 42). Accordingly, this Court
has reviewed de novo those portions of the R&R challenged
in the Objection. See 28 U.S.C. § 636(b)(1); Hill v.
Duriron Co., 656 F.2d 1208, 1213 (6th Cir. 1981).
of Plaintiff's Objections relate to the case schedule
(Doc. 43 at ¶¶ 1, 2, 6). Plaintiff argues he was
unaware of the deadline for filing dispositive motions due to
a typo in the Case Management Conference Order, which listed
the relevant date as February 5, 2017, rather than February
5, 2018 (Doc. 24). Plaintiff further contends that based on
this error, he was denied the opportunity to take discovery.
of these arguments is persuasive. Plaintiff's professed
confusion is belied by the record, which shows that he filed
both his own dispositive Motion (Doc. 37) and an opposition
to Defendants' Motion for Summary Judgment (Doc. 40) in
advance of the correct deadlines. Plaintiff's assertions
about discovery (or lack thereof) are also contradicted by
the record. The docket in this matter reflects that
Defendants timely served their Initial Disclosures under
Federal Civil Rule 26(a) (Doc. 27), and Plaintiff was
provided copies of his medical records (Doc. 28). The
Affidavit submitted in support of Defendants' Motion also
references additional documents produced in discovery (see
Doc. 39 at 12).
also objects that the Magistrate Judge abused his discretion
in denying Plaintiff's Motion for Appointment of Counsel
(Doc. 43 at ¶ 5). But Plaintiff appears to acknowledge
there is no right to counsel in a civil proceeding, and the
Magistrate Judge's Order (Doc. 11) accurately states the
facts and the law on this point. See Lavado v.
Keohane, 992 F.2d 601, 605 (6th Cir. 1993)
(“Appointment of counsel in a civil case is not a
constitutional right. . . . It is a privilege that is
justified only by exceptional circumstances.”)
next argues that the Magistrate Judge erred in concluding
there were no genuine disputes of material fact sufficient to
preclude summary judgment. Specifically, he asserts (1) the
C-PAP machine was taken by “non-medical staff”
and Nurse Donahue, and was not immediately replaced; (2) the
purpose of the C-PAP machine is not to provide oxygen, but
“to add forced air to the [Plaintiff's] lungs with
moister [sic] in it”; and (3) Nurse Donahue's
Affidavit is not supported by any evidence (Doc. 43 at
¶¶ 3, 7, 8).
first point is consistent with the facts set forth in the
R&R (see Doc. 41 at 2-3), and the second point is not
material to the legal analysis. As for the third point, Nurse
Donahue's Affidavit is based on her review of
Plaintiff's medical records related to his
pulmonary/respiratory treatment at NCCC (Doc. 39 at 12).
These records were produced in discovery, and Plaintiff
identifies no contrary evidence creating a genuine dispute of