Filed: Jul. 05, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-11780 JULY 5, 2011 JOHN LEY Non-Argument Calendar CLERK _ D.C. Docket No. 1:08-cv-21017-DLG DANIEL TREVINO, lllllllllllllllllllll Plaintiff-Appellant, versus DR. ROGER BROWNE, NURSE RICKY ROWE, all sued in their individual capacities, lllllllllllllllllllll Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-11780 JULY 5, 2011 JOHN LEY Non-Argument Calendar CLERK _ D.C. Docket No. 1:08-cv-21017-DLG DANIEL TREVINO, lllllllllllllllllllll Plaintiff-Appellant, versus DR. ROGER BROWNE, NURSE RICKY ROWE, all sued in their individual capacities, lllllllllllllllllllll Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (J..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11780 JULY 5, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:08-cv-21017-DLG
DANIEL TREVINO,
lllllllllllllllllllll Plaintiff-Appellant,
versus
DR. ROGER BROWNE,
NURSE RICKY ROWE,
all sued in their individual capacities,
lllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 5, 2011)
Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Trevino, a Florida state prisoner proceeding pro se, appeals the
district court’s grant of summary judgment in favor of Ricky Rowe. Trevino filed
an action under 42 U.S.C. § 1983 against Rowe, a nurse, alleging deliberate
indifference to a serious medical need.1 The case was assigned to a magistrate
judge. Thereafter, Rowe filed a motion for summary judgment. Even though the
magistrate judge sent Trevino an “Order of Instructions to Pro Se Plaintiff
Concerning Response to a Motion for Summary Judgment,” Trevino never
responded to Rowe’s motion for summary judgment. The magistrate judge issued
a report and recommendation, which recommended that Rowe’s motion for
summary judgment be granted. Although Trevino filed a motion requesting
additional time to respond to the R&R, which the district court granted, he never
filed any objections. The district court adopted the R&R and granted Rowe’s
motion for summary judgment. Trevino appealed.
Trevino now contends that summary judgment was inappropriate for six
reasons. Although he had the opportunity to make those arguments in response to
1
Trevino also filed a § 1983 complaint against Dr. Roger Brown; however, Brown was
never served with process. Accordingly, the district court found that the case against Brown
should be closed. Trevino did not object to that finding in the district court and he has not
objected to that finding before us. Therefore he has waived and abandoned that issue and we will
not consider it further. See Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 133,
1335 (11th Cir. 2004) (“We will not address a claim that has been abandoned on appeal” or “an
issue not raised in the district court.”).
2
Rowe’s motion for summary judgment, and after the magistrate judge’s “Order of
Instructions,” and after the magistrate judge issued the R&R, and after the district
court granted Trevino additional time to object to the R&R, Trevino never did so.
“This Court has repeatedly held that an issue not raised in the district court and
raised for the first time in an appeal will not be considered,” Access Now, Inc. v.
Southwest Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks
omitted), and this is not one of the “exceptional circumstances in which it may be
appropriate to . . . deviate from this rule of practice.” Dean Witter Reynolds, Inc.
v. Fernandez,
741 F.2d 355, 360 (11th Cir. 1984).
AFFIRMED.
3