MARC T. TREADWELL, District Judge.
The remaining Defendants in this case—McClarin, Ayers, Fleming, and Rogers—have filed motions for summary judgment. Docs. 77 (McClarin); 85 (Ayers); 86 (Fleming); 87 (Rogers). United States Magistrate Judge Stephen Hyles recommends granting the motions. Doc. 98 at 18. The Magistrate Judge also recommends that the Court deny Carswell's Motion to Stop Movement (Doc. 75). Id. Carswell objects to all of these recommendations. Doc. 101. The Court has considered Carswell's objections and has made a de novo review of the Magistrate Judge's conclusions. The Court
Carswell has two claims remaining against Defendant McClarin: a First Amendment retaliation claim and an Eighth Amendment deliberate indifference claim. Doc. 19 at 9 (order adopting Doc. 8 at 3-4 (recommendation setting out Carswell's claims)); Doc. 62 (order denying McClarin's motion to dismiss); see also Doc. 77-2 at 1-2 (McClarin's list of these claims). McClarin asserts that he is entitled to summary judgment because Carswell's claims are barred by the statute of limitations and his claims are without merit. Doc. 77-2 at 3, 10, 17. The Magistrate Judge agreed with McClarin's statute of limitations argument. Doc. 98 at 8-9.
Carswell objects, arguing that "the claims are not time barred since the continuing tort doctrine applies . . . ." Doc. 101 at 2. But, as the Magistrate Judge noted in the Recommendation, Carswell's claims cannot be saved by the continuing tort doctrine.
Doc. 98 at 8-9 (record citations omitted). Carswell has not offered any specific reason why this is wrong. "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
Carswell argues that summary judgment is inappropriate because "the magistrate's referral to a fully developed record is based on information not provided to plaintiff since he was not served with numerous filings." Doc. 101 at 2. But aside from McClarin's failure to timely serve his answer, Carswell does not explain what documents he did not receive.
Having conducted a de novo review, the Court agrees with the Magistrate Judge; the statute of limitations clearly bars both of Carswell's claims against McClarin.
Carswell has First and Eighth Amendment claims remaining against Defendant Ayers. See Doc. 62 at 10 (clarifying Carswell's remaining claims against Ayers are "Eighth Amendment claims for inadequate treatment of the cancer on Carswell's ear, the denial of medication, and the denial of hernia surgery; and for . . . First Amendment retaliation claims for discontinuing medications, denying hernia surgery, and refusing to approve reconstruction surgery for Carswell's ear."); see also Doc. 85-1 at 1-2 (Ayers's list of these claims). Ayers asserts that he is entitled to summary judgment because: (1) Carswell has failed to exhaust his administrative remedies as to all claims (except his Eighth Amendment claim for denial of hernia medication); (2) Carswell's claim for inadequate treatment of the cancer on his ear is barred by the statute of limitations; and (3) Carswell's First and Eighth Amendment claims are without merit; and (4) he is entitled to qualified immunity. Doc. 85-1 at 9, 12, 18, 20, 21.
The Magistrate Judge concluded that Carswell's inadequate ear-treatment claim is barred by the statute of limitations. Doc. 98 at 9-10. Carswell objects, stating "that the continuing tort doctrine applies as to this defendant . . . ." Doc. 101 at 2. But Carswell's inadequate ear-treatment claim against Ayers, just as his related claim against McClarin, is not preserved by the continuing tort doctrine. The Magistrate Judge explained:
Doc. 98 at 10 (record citations omitted). As the Magistrate Judge noted in relation to McClarin, "[e]ven assuming the continuing tort doctrine applied, the cause of action would have accrued no later than April 11, 2012—the date on which the medical attention requested by Plaintiff was performed." Id. at 9. Carswell has not offered any specific reason why this wrong, and his objection is accordingly a general objection that the Court need not consider. Cf. Marsden, 847 F.2d at 1548.
The Magistrate Judge concluded that Ayers is entitled to summary judgment on the merits of Carswell's Eighth Amendment discontinuation-of-medication and hernia-treatment claims, and Carswell's First Amendment retaliation claims. Though Carswell offered no specific objection,
The Magistrate Judge determined that Fleming and Rogers were entitled to summary judgment because Carswell failed to demonstrate exhaustion of his administrative remedies. Doc. 98 at 16-18. The Magistrate Judge appears to have made his conclusions at step one of Turner,
Carswell's assertions do not preclude dismissal; they simply require the Court to make a factual determination at step two of Turner. Carswell's assertion that he "has copies of grievance receipts" demonstrating exhaustion not otherwise in the record is just that—a bare assertion. Carswell claims that he has copies of this evidence; if so, he could have submitted them with his objection. He did not. Short of this, Carswell could have given grievance numbers, dates, and some description of the substance of the grievances. But he did not.
Further, Carswell's assertions in this case have not proven trustworthy.
The Court has reviewed the relevant grievances from Washington State Prison attached to Fleming's affidavit (Doc. 87-3 at 36-46), and due to Carswell's failure to offer any substantive and credible evidence to the contrary, concludes that Carswell has not exhausted his administrative remedies. Accordingly, the Court, upon de novo review of the Magistrate Judge's recommendation, dismisses Carswell's claims against Fleming and Rogers without prejudice.
Throughout his objection, Carswell maintains that summary judgment is inappropriate because he is "awaiting discovery responses." See generally Doc 101. Furthermore, the Magistrate Judge denied Carswell's Motion to Compel Discovery (Doc. 75), to which Carswell "objects," stating: "The magistrate is aware that plaintiff has been denied proper responses to his discovery requests and that plaintiff is still awaiting discovery responses from several non-party medical witnesses[.]" Id. at 2. Of course, the Magistrate Judge's ruling on a motion to compel is an order on a nondispositive pretrial matter, which is subject to reconsideration only where shown to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The Court reviews this objection in conjunction with his objections based on insufficient discovery. The Court agrees with the Magistrate Judge's classification of Carswell's discovery complaints as "broad, ambiguous[,]" and without factual basis. See Doc. 98 at 6.
Furthermore, after a thorough review, the Court is confident that Carswell is not entitled to further discovery. Carswell has certainly not demonstrated particular facts that he expects to discover and how they are relevant to support his claims, which is required by Federal Rule of Civil Procedure 56(d).
Carswell objects to the Magistrate Judge's recommendation denying Carswell's Motion to Stop Movement from Address (Doc. 74), which the Magistrate Judge rightly construed as a motion for preliminary injunctive relief. Doc. 98 at 4, 18. The Magistrate Judge reasoned that injunctive relief should be denied because the Court is granting summary judgment against Carswell and Carswell has not demonstrated that the Defendants in this suit have authority to determine his housing placement. Id. at 5-6. Carswell objects, arguing "that after turning over his responses to the motions for summary judgment to prison officials for mailing that he was subjected to multiple acts of retaliation by officials, including several defendants in this case. Plaintiff was, for no reason, placed in segregation and subjected to inhumane conditions, then placed in a 3 man cell where he was injured, with knowledge of his 2-man cell profile and susceptibility to injury, then transferred twice." Id.
In light of Carswell's history of speculation
For these reasons, the Court
Carswell's purported "Statement of Disputed Material Facts" (Doc. 96-1) did not "respond[] to the numbered paragraphs of [McClarin's] statement [of material facts, with] . . . reference to that part of the record that supports" his contrary assertions, as the Court instructed him. See Doc. 90 at 1. Though Carswell offers an affidavit summarily contradicting McClarin's factual allegations as to the standard of care, the affidavit is clearly not "made on personal knowledge, [does not] set out facts that would be admissible in evidence, and [does not] show that [Carswell] is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002) ("[A]n affidavit stating only that the affiant `believes' a certain fact exists is insufficient to defeat summary judgment . . . ."). Accordingly, Carswell did not "respond . . . with affidavits or documentary evidence contradicting the material facts asserted in [McClarin's] motion for summary judgment." Cf. Fed. R. Civ. P. 56(c)(4). Though Carswell's affidavit mentions his need for additional discovery, his request does not meet the requirements of Federal Rule of Civil Procedure 56(d). See infra note 13 and accompanying text.