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Wagner v. Turner

United States District Court, N.D. Ohio, Western Division

July 16, 2018

Robert G. Wagner, Plaintiff,
v.
Neil Turner, et al., Defendants.

          ORDER ADOPTING REPORT & RECOMMENDATION

          JACK ZOUHARY U.S. DISTRICT JUDGE

         INTRODUCTION

         Plaintiff 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).

         Plaintiff 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).

         DISCUSSION

         Case Management Issues

         Several 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.

         Neither 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).

         Appointment of Counsel

         Plaintiff 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.”) (citations omitted).

         Evidentiary Issues

         Plaintiff 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).

         The 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 material fact.

         Sleep ...


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