United States District Court, W.D. Arkansas, Texarkana Division
GERALD H. LOWERY, SR. PLAINTIFFS
v.
WARDEN JEFFIE WALKER, Miller County Detention Center MCDC; NURSE S. KING, Head Nurse MCDC; NURSE CHELSEA FOSTER, MCDC; NURSE LONNIE REDFEARN, MCDC; DR. TIMOTHY REYNOLDS, MCDC; SHERIFF JACKIE RUNION; SOUTHERN HEALTH PARTNERS, INC.; and MILLER COUNTY DEFENDANTS
ORDER
Susan
O. Hickey Chief United States District Judge
Before
the Court is Plaintiff Gerald H. Lowery, Sr.'s Objection
to Report and Recommendation. (ECF No. 59). On September 30,
2019, the Honorable Barry A. Bryant, United States Magistrate
Judge for the Western District of Arkansas, issued two
separate Reports and Recommendations. (ECF Nos. 55-56).
In his
first Report and Recommendation, Judge Bryant found that
Plaintiff failed to produce any evidence showing: (1) that
Defendants Walker, Runion, and Miller County were personally
involved in the alleged inadequate medical care; (2) that
Plaintiff failed to produce any evidence that the meals
served to him were nutritionally inadequate; and (3) that
Plaintiff failed to produce any evidence supporting a
retaliation claim. Judge Bryant also found that Plaintiff
failed to produce evidence of a custom, practice, or policy
of Defendant Miller County that caused the alleged
constitutional deprivations. Accordingly, Judge Bryant
recommended that the Court grant summary judgment in favor of
Defendants Walker, Runion, and Miller County and dismiss all
claims against them.
In his
second Report and Recommendation, Judge Bryant found that
Plaintiff failed to submit any evidence supporting his claims
of deliberate indifference and retaliation, with the
exception of his claims against Defendants King and Foster
for the alleged denial of pain medication, for which Judge
Bryant determined that a genuine dispute of material fact
existed. Judge Bryant also found that Plaintiff failed to
submit evidence showing a custom, practice, or policy of
Defendant Southern Health Partners Inc. that caused the
alleged constitutional deprivations. Accordingly, Judge
Bryant recommended that the Court grant summary judgment in
favor of Defendants Foster; Reynolds; King; Redfearn; and
Southern Health Partners, Inc.; and dismiss all claims
against them, except for individual capacity claims against
Defendants King and Foster for the alleged denial of pain
medication.
The
parties did not file timely objections to either Report and
Recommendation and, on October 21, 2019, the Court adopted
each in toto and dismissed various claims as
recommended by Judge Bryant. On October 22, 2019, Plaintiff
filed the present objections. Although the Court is under no
obligation to review Plaintiff's untimely objections, it
will do so, nonetheless.
“[T]he
specific standard of review depends, in the first instance,
upon whether or not a party has objected to portions of the
report and recommendation.” Anderson v. Evangelical
Lutheran Good Samaritan Soc'y, 308 F.Supp.3d 1011,
1015 (N.D. Iowa 2018). Generally, “objections must be
timely and specific” to trigger de novo
review. Thompson v. Nix, 897 F.2d 356, 358-59 (8th
Cir. 1990). The Court applies a liberal construction when
determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
Pursuant to 28 U.S.C. § 646(b)(1), the Court will
conduct a de novo review of all issues related to
Plaintiff's specific objections.
Plaintiff's
objections do not specify which Report and Recommendation he
objects to, so the Court will consider the objections as to
both Reports and Recommendations. Plaintiff objects on three
bases. First, he appears to object to Judge Bryant's
consideration of Defendants' evidence of various tests
they performed to monitor Plaintiff's blood sugar levels.
Second, he objects because he was not given the opportunity
to have an emergency room physician testify why it was bad
judgment to take Plaintiff off a successful insulin regimen
shortly after he was incarcerated. Third, he objects that he
was deprived of the chance to hear testimony from Defendant
Reynolds regarding information stated in Defendant
Reynolds' affidavit that was submitted in support of
summary judgment. Plaintiff's objections are accompanied
by his pre-incarceration medical documents from the Baptist
Health Family Clinic in Bryant, Arkansas.
To
begin, the Court does not believe that these evidence-based
objections are specific. “[G]eneral and conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations” do not trigger de novo
review. Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.
1994); Meyer v. Haeg, No. 15-cv-2564 (SRN/HB), 2016
WL 6916797, at *2 (D. Minn. Nov. 21, 2016). Plaintiff does
not point the Court to any specific error of fact or law in
Judge Bryant's Reports and Recommendations. Rather,
Plaintiff objects because he feels that Defendants offered
invalid evidence in support of their summary judgment motions
and because he was unable to obtain certain evidence for use
in this case. The Court finds that these objections are not
specific enough to trigger de novo review. However,
even if the Court assumes arguendo that the
objections are specific, they would still fail for the
following reasons.
A party
may not assert arguments, claims, or legal theories in his
objections to a magistrate judge's report and
recommendation that were not first presented to the
magistrate judge for consideration. Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067
(8th Cir. 2012); Chaney v. Hutchinson, No.
4:18-cv-0478-BSM, 2018 WL 4134639, at *1 (E.D. Ark. Aug. 29,
2018) (citing Hylla v. Transp. Commc'ns Int'l
Union, 536 F.3d 911, 921 (8th Cir. 2008)). “[T]he
purpose of referring cases to a magistrate for recommended
disposition would be contravened if parties were allowed to
present only selected issues to the magistrate, reserving
their full panoply of contentions for the trial court.”
Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000).
To hold otherwise would effectively give a party “two
opportunities for judicial review.” Id.
Plaintiff
did not raise any of his evidence-based objections with Judge
Bryant. The Court will not second-guess Judge Bryant's
reasoning based on arguments that should have been presented
to Judge Bryant for consideration but were only raised for
the first time after the fact. Thus, the Court should not
consider those objections here.[1] However, given Plaintiff's
pro se status, the Court will address the objections.
Plaintiff's
first objection seems to be that Defendants' evidence of
his blood sugar levels was premised on inaccurate and
unreliable medical tests and, thus, Judge Bryant should not
have considered that evidence. If Plaintiff felt that this
evidence should not be considered on summary judgment, he
should have filed a motion to that effect or at least
objected somehow before Judge Bryant issued the Reports and
Recommendations.[2] Instead, Plaintiff did not raise any issue
with the evidence in his responses to the summary judgment
motions. Alternatively, Plaintiff could have offered some
contradictory proof of his blood sugar levels, thereby
creating an issue for trial. He did not do so. Thus, the
Court is not persuaded by Plaintiff's first objection.
Plaintiff's
second objection is that he was not allowed to have an
emergency room physician testify as to the medical soundness
of taking him off a specific insulin regimen when he was
incarcerated. This objection fails because Plaintiff was not
required to produce testimony from an emergency room
physician to survive the summary judgment stage. To be
certain, Plaintiff bore the burden of offering evidence
demonstrating a genuine dispute of material fact, and
deposition testimony is one valid form of summary judgment
evidence.[3] However, Plaintiff could have offered the
physician's testimony in other ways, such as an affidavit
or unsworn declaration, and Plaintiff offered no evidence
related to the physician at all. The Court is not persuaded
that Plaintiff was unduly prejudiced by any inability to
offer the deposition testimony of a physician.
Plaintiff's
third objection, that he was not allowed to hear the live
testimony of Defendant Reynolds, presumably because he wished
to cross-examine him, is likewise insufficient. At the
summary judgment stage, Plaintiff “must set forth
specific facts showing that there is a genuine issue for
trial.” Jaurequi v. Carter Mfg. Co., 173 F.3d
1076, 1085 (8th Cir. 1999). When a movant has offered facts
in support of summary judgment, “the opponent must
affirmatively show that a material issue of fact remains in
dispute and may not simply rest on the hope of discrediting
the movant's evidence at trial.” Matter of
Citizens Loan & Sav. Co., 621 F.2d 911, 913 (8th
Cir. 1980). Plaintiff has not produced evidence contradicting
Defendant Reynolds' affidavit, thereby creating a dispute
of material fact. Rather, Plaintiff seems to rest on the hope
of discrediting Defendant Reynolds' testimony at trial.
This is insufficient to overcome summary judgment and,
consequently, the Court finds that summary judgment was
properly granted.
Upon
de novo review of the Reports and Recommendations,
and for the reasons discussed above, the Court finds that
Plaintiff's objections offer neither law nor fact which
would cause the Court to deviate from Reports and
Recommendations. Accordingly, the Court hereby overrules
Plaintiff's objections and ...