Opinion
5:22-cv-00432-TES-MSH
12-20-2023
JEAN JOCELYN MERILIEN, Plaintiff, v. COUNSELOR DUNAGAN, et al., Defendants.
ORDER & RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are motions for summary judgment filed by Defendants Annie Bowens, Lawrence Whittington, and Tonya Ashley (ECF Nos. 38, 54). For the reasons stated below, the Court recommends the motions be granted.
BACKGROUND
The present action is brought under 42 U.S.C. § 1983 and initially arose out of Plaintiff Jean Jocelyn Merilien's confinement at Wilcox State Prison (“WSP”) in Abbeville, Georgia. Compl. 4, ECF No. 1. According to Merilien's complaint, he was seen by a dermatologist in July 2021 at Augusta State Medical Prison (“ASMP”) for large black bumps on his left ear and right cheek, along with various other black bumps and red marks on his body. Id. at 7. The dermatologist gave Merilien a shot, ordered some medication, and told him to return to ASMP within ninety days for follow up care. Id. The doctor also told Plaintiff that his skin issues were serious. Id. At the time Merilien filed his complaint in December 2022, however, he had not been returned to ASMP despite him writing several letters to Defendants Warden Whittington and Deputy Warden of Care and Treatment Ashley, who never responded. Id. Merilien also alleged he submitted medical request forms seeking to be brought back to the dermatologist. Id. at 7-8. Further, in response to a grievance, Defendant Bowens, WSP's Health Services Administrator (“HSA”), stated she would schedule him to see the on-site provider, who would determine whether Merilien needed to be taken for outside care. Compl. 15. Bowens did not schedule Merilien for an appointment, however, and at the time of the filing of the complaint, he had not received an appointment or treatment in response to his grievances or medical requests. Id. at 8, 15. Because he had not been taken for further treatment, Merilien stated the problems with his skin, which was itchy and painful, had gotten worse. Id. at 8.
The Court received Merilien's complaint on December 6, 2022 (ECF No. 1). Following preliminary screening, his deliberate indifference to a serious medical need claim against Defendants was allowed to proceed for further factual development. Order & R. 10, Mar. 27, 2023, ECF No. 10; Order 4-5, Apr. 18, 2023, ECF No. 22 (adopting recommendation). Bowens answered on May 30, 2023, and Whittington and Ashley answered on June 5, 2023 (ECF Nos. 29, 30). Bowens moved for summary judgment on August 28, 2023, and Whittington and Ashley did likewise on October 3, 2023 (ECF Nos. 38, 54). Merilien timely responded to the motions (ECF Nos. 46, 60). Because Merilien's responses raised Defendants' failure to produce his medical records in discovery, the Court ordered Defendants to serve Merilien his medical records and allowed him time to file a supplemental response to the summary judgment motions. Order 2-3, Oct. 20, 2023, ECF No. 61. The Court received Merilien's supplemental response on December 5, 2023 (ECF No. 83). Whittington and Ashley replied on December 18, 2023 (ECF No. 84). Defendants' summary judgment motions are ripe for review.
DISCUSSION
Defendants move for summary judgment, contending Merilien cannot show they were deliberately indifferent to a serious medical need. Whittington and Ashley Br. in Supp. of Mot. for Summ. J. 5-7, ECF No. 54-2; Bowens Br. in Supp. of Mot. for Summ. J. 4-7, ECF No. 38-1. Whittington and Ashley also claim they are entitled to qualified immunity. Whittington and Ashley Br. in Supp. of Mot. for Summ. J. 7-8. Because the Court agrees Merilien cannot establish deliberate indifference to a serious medical need, it recommends granting summary judgment on this ground and declines to address the qualified immunity argument.
I. Summary Judgment Standard
Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
II. Deliberate Indifference Standard
“The [E]ighth [A]mendment, which applies to the states through the [F]ourteenth [A]mendment prohibits the infliction of cruel and unusual punishment .... [S]tates violate the [E]ighth [A]mendment if they are deliberately indifferent to a prisoner's serious medical needs.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1571-72 (11th Cir. 1985) (internal citations omitted). In order to prove a claim of deliberate indifference, “a plaintiff must show: (1) a serious medical need; (2) a defendant's deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam). The first prong is an objective inquiry, requiring the plaintiff to prove “an objectively serious medical need.” Ireland v. Prummell, 53 F.4th 1274, 1287 (11th Cir. 2022). “A serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. In either case, the medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Dang ex rel. Dang v. Sheriff, 871 F.3d 1272, 1280 (11th Cir. 2017) (internal quotation marks and citations omitted).
The second prong is a subjective inquiry. Ireland, 53 F.4th at 1287. To establish deliberate indifference to a serious medical need, a plaintiff must prove: “(1) the official was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, (2) the official actually drew that inference, (3) the official disregarded the risk of serious harm, and (4) the official's conduct amounted to more than gross negligence.” Id. (internal quotation marks omitted). “[M]edical treatment violates the Constitution only when it is so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Dang ex rel. Dang, 871 F.3d at 1280 (quotation marks omitted). Moreover, “a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment [does not] support a claim of cruel and unusual punishment.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
“[D]elay in access to medical care that is tantamount to unnecessary and wanton infliction of pain, may constitute deliberate indifference to a prisoner's serious medical needs.” Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995) (internal quotations and citations omitted). “Some delay in rendering medical treatment may be tolerable depending on the nature of the medical need and the reason for the delay.” Id. (citing Harris v. Coweta Cnty., 21 F.3d 388, 393-94 (11th Cir. 1994)). A delay in medical treatment constitutes deliberate indifference “where ‘it is apparent that delay would detrimentally exacerbate the medical problem,' the delay does seriously exacerbate the medical problem, and the delay is medically unjustified.” Taylor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187-89 (11th Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)). “An inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed.” Hill, 40 F.3d at 1188; see also James v. Bartow Cnty., Ga., 798 Fed.Appx. 581, 585 (11th Cir. 2020) (per curiam).
III. Factual Summary
Merilien had skin problems for years prior to the events at issue in this complaint, including diagnoses of eczema and inflammatory acne and other conditions causing bumps and lesions on his face. MR 164, 166-67, 171-72, 178-79, 184, 186, 202, 211-12, 214-16, 228, 231, 237, 243-44, 347-48, 350-51, 382-83, 387-92, 395. He was seen by various medical providers-including dermatologists through telehealth visits-who prescribed treatments and medication for his condition, including Medrol Dosepak, benzoyl peroxide, augmented betamethasone, clobetasol, doxycycline, and clindamycin. Id. On July 1, 2021, he was seen in person at ASMP by Dr. Liner, a dermatologist, who gave Merilien an injection for a keloid on his ear but otherwise continued him on his current medications. MR 385. Dr. Liner also noted a mole on Merilien's right cheek, which she stated would be monitored, and recommended Merilien return to the clinic in three months for a follow up. MR 345, 385. Her notes indicated if there was no improvement, a biopsy would be taken. MR 385.
Whittington and Ashley have submitted Merilien's medical records (ECF No. 71) as has Bowens (ECF No. 74). The submissions are not identical, and certain records in one production are not present in the other. Therefore, the Court cites to the medical records submitted by Whittington and Ashley as “MR” followed by the electronic screen page number shown at the top right of each page by the Court's CM/ECF software as opposed to any other page number appearing on the document. Similarly, the Court cites to the medical records provided by Bowens as “MR II,” followed by the CM/ECF generated electronic screen page number.
Approximately three months later, on October 4, 2021, Merilien was taken to Wilcox Telemedicine, where he had a telehealth visit with Dr. Humphrey, a dermatologist. MR 378, 381; MR II 204. Merilien reported the acne on his face had improved but was the same on his body. MR 378. According to Dr. Humphrey's notes, Merilien reported he was “doing alright.” MR II 204. Dr. Humphrey's physical examination noted scattered hyperpigmented excoriations and patches on Merilien's arms and trunk. MR 378. She assessed him as having acne vulgaris, which was stable and improved, and atopic eczema. Id. She ordered Merilien to continue with his medication. Id. Her notes do not mention the need for Merilien to be evaluated at ASMP. Id.
On November 29, 2021, Merilien saw a WSP nurse with complaints of bumps on his face. MR II 201. She ordered him to continue his medication. Id. On January 27, 2022, a WSP physician's assistant saw Merilien, who complained of masses on his left ear and right side of face. MR II 200. In the plan portion of her report, she noted “consult dermatology,” but there is no record of a request for a dermatology consultation at that time. Id. She advised Merilien to continue taking his medication. Id.
Merilien filed a grievance on February 23, 2022, complaining Whittington and the medical clinic director had failed to take him back to ASMP so the dermatologist could freeze the “big bumps” on his left ear and right cheek. Whittington Ex. 1, at 5, ECF No. 54-4. Merilien's requested resolution was for Whittington to order the medical director to take him to an outside dermatologist to “freez[e] the big bumps on [his] left ear, right cheek, left arm, and for other back injuries bumps/mark on [his] body in reasonable time frame 30 days.” Id. As part of the investigation into the grievance, Bowens gave a statement that “[p]roviders assess and treatment is provided on-site as needed. Any further treatment required, an outside appointment is made to local physicians. [Patient] is to be scheduled for dermatology appointment.” Id. at 8. On March 28, 2022, Whittington denied Merilien's grievance, indicating Bowens “states that she will make [Merilien] another appointment with medical here at [WSP] to further evaluate [his] issue.” Id. at 4. Merilien was served the grievance response on April 7, 2022. Id.
Despite Bowens's statement Merilien would be scheduled to see a dermatologist, no such appointment was made, nor is there any indication he was seen by an on-site provider to make such referral. Merilien submitted a medical request form on May 15, 2022, asking again to be seen by an outside dermatologist, and on July 7, 2022, he came to sick call asking about a follow-up appointment. MR 1, 308. Finally, on September 1, 2022, Merilien saw a WSP nurse practitioner and complained of ongoing episodes of inflammatory acne and eczema. MR 286. The nurse practitioner continued Merilien on medication-including clindamycin, doxycycline, triamcinolone cream, and Medrol Dosepak-and requested he receive a dermatology consult. MR 286, 298. The nurse practitioner saw Merilien again on September 22, 2022, and noted his lesions were less irritated after treatment. MR 284-85. She stated she would perform a punch biopsy on the next visit. MR 284-85; MR II 34.
On November 1, 2022, Merilien filed another grievance, complaining he had written Whittington and Ashley to inform them that Dr. Aljaaly-a doctor working in WSP's medical clinic-had failed to provide him prompt treatment for his skin condition and requested Dr. Aljaaly be required to explain why he had refused a follow-up appointment for him at ASMP. Whittington Ex. 2, at 2, ECF No. 54-5. As part of the grievance investigation, Dr. Aljaaly gave a statement indicating he had seen Merilien on October 24, 2022, regarding his elevated cholesterol, and during the conversation Merilien asked about his skin condition. Id. at 5. Dr. Aljaaly reported that he told Merilien he had medication ordered until February 2023 and a dermatology consultation was “in the process.” Id. Dr. Aljaaly also told Merilien if he had any new symptoms or worsening of his previous symptoms, he could see him again. Id. On the basis of Dr. Aljaaly's statement, Whittington denied the grievance on December 9, 2022. Id. at 1.
In the meantime, Merilien saw a WSP nurse on November 15, 2022, and stated he continued to have problems with his skin disorder and that his prescribed creams had not helped. MR 306. The nurse referred Merilien to an upper level provider for evaluation and possible dermatology consultation. Id. A dermatologist saw Merilien during a telehealth visit on November 28, 2022. MR 278-79. The dermatologist recommended topical treatment and that Merilien be seen at ASMP for intralesional injections. Id.
Finally, Dr. Liner saw Merilien again at ASMP on February 2, 2023. MR 9. Dr. Liner's notes indicate Merilien was mostly concerned about a .7 millimeter nodule on his left scaphoid fossa which he wanted removed because it would sometimes bleed, though it was not painful or tender. Id. Dr. Liner biopsied the nodule, which eventually came back as benign angioma. MR 9, 315. Otherwise, Dr. Liner continued Merilien on his medication, though she also ordered he be given Cordran tape to use for his nodules. MR 9, 302. She recommended Merilien receive a follow-up visit via telemed in two to four weeks. Id. Dr. Humphrey saw Merilien on a telemed visit on March 6, 2023, and continued him on doxycycline. MR 273-74.
IV. Analysis
From the beginning of this case, Merilien's primary complaint has been that Defendants did not return him to ASMP sooner for treatment by Dr. Liner. Compl. 7. Whittington responds that he was the Warden at WSP-not a medical provider-and that he had no authority to issue orders to medical staff about the medical care inmates received, including referrals. Whittington Decl. ¶¶ 2-5, ECF No. 56-1. He states he never denied or refused medical care for Merilien, and after Merilien filed his first grievance, he investigated and received confirmation from Bowens, the HSA, that necessary steps would be taken for Merilien to be evaluated. Id. ¶¶ 3, 5. Then, when it was brought to his attention in November 2022 that Merilien was complaining he had not been properly treated by WSP's medical unit, he again investigated and learned Merilien's skin was discussed during an October visit and that Merilien was being provided medication for his skin condition. Id. ¶ 6. Ashley gives a similar account, noting she had no authority to issue orders to medical staff about services, but also adding she was not involved in investigating or resolving grievances. Ashley Decl. ¶¶ 3-5, ECF No. 56-2. Finally, Bowens avers that although she was the HSA, she did not make appointments for outside medical consultants or telecare, and that such responsibility fell to the Consult Clerk. Bowens Aff. ¶ 4, ECF No. 41. She states that upon noting Merilien would be scheduled for a dermatology appointment, she gave the directive to the Consult Clerk to arrange and never heard from Merilien again until the lawsuit was filed. Id. ¶ 6.
Merilien argues Defendants were deliberately indifferent by failing to send him for a follow-up appointment at ASMP. He also avers when he saw Dr. Liner in February 2023, Dr. Liner was “upset with Plaintiff and refused to even cut or freez[e] the big black bumps from his right cheek, left ear, left arm and follow-up treatments on skin[] injuries.” Pl.'s Aff. 7, ECF No. 46-2. Merilien also states Dr. Liner told him the failure to return him within ninety days of the July 2021 visit “caused her to have more work[] and has more problems. Finally said that these injuries cost lots of money and she would not remove[] them.” Id. Merilien claims after he begged her, Dr. Liner finally cut off the big bump on his left ear but left the other bumps. Id.
The Court recommends Defendants be granted summary judgment. Initially, the Court observes that when Merilien originally filed his complaint, he alleged Defendants were deliberately indifferent for failing to ensure he was taken back to ASMP within ninety days of his July 2021 visit. Compl. 8. He failed to mention, however, he was seen by a dermatologist via a telehealth visit on October 4, 2021, which was within three months. MR 378, 381; MR II 204. The dermatologist did not order Merilien receive a further evaluation at ASMP. Even assuming they were aware Dr. Liner had recommended a three month follow-up, there is no evidence Defendants-who are not doctors-would have had reason to believe the telehealth visit was insufficient, especially since the telehealth provider did not recommend further treatment at ASMP.
Further, there is no evidence Whittington and Ashley were deliberately indifferent to Merilien's skin condition. After Merilien filed a grievance about not being taken to ASMP, Whittington investigated and received assurance from Bowen that Merilien would be seen by an appropriate medical provider. Whittington Decl. ¶ 5. Then, when Merilien complained in November 2022 about Dr. Aljaaly's failure to send him for a follow-up visit, Whittington again investigated and determined the on-site medical unit had seen Merilien and was treating his condition. Id. ¶ 6. Again, Whittington is not a doctor, and he did not have authority to decide who, how, or where Merilien's skin condition was treated. Id. ¶ 4. The same is true of Ashley. There is no evidence Whittington or Ashley vetoed, interfered with, or failed to comply with a physician-ordered course of treatment, including a dermatology consultation at ASMP.
Bowens's explanation about who would evaluate and determine whether Merilien needed to be seen by a dermatologist is unclear. While her statement suggested-and Whittington apparently construed it to mean- the need for a consultation was determined by an on-site provider, she also stated Merilien would be scheduled for a dermatology appointment. However, the clear import of Bowens's statement was Merilien would be seen by an appropriate medical professional.
Regarding Bowens, her explanation that consultations were handled by the Consult Clerk is not entirely satisfactory. As HSA, she would seemingly have more direct supervisory responsibility than Whittington and Ashley for ensuring ordered consultations took place, and while she assured Whittington that Merilien would be scheduled for a dermatology appointment, such appointment did not occur until November 2022. Whittington Ex. 1, at 8; MR 278-79. There is no evidence Bowens's failure to ensure an appointment was scheduled, however, constituted more than negligence, which is insufficient to establish deliberate indifference. See Blank v. Bell, 634 Fed.Appx. 445, 448 (5th Cir. 2016) (per curiam) (“Although the intentional failure to schedule an appointment with a specialist may amount to deliberate indifference when it causes substantial harm, the negligent failure to schedule an appointment does not.”); McKnight v. Garriott, No. 3:15-cv-159-J-39JRK, 2018 WL 6019706, at *28 (M.D. Fla. Nov. 16, 2018) (“To the extent the there was a negligent failure to schedule an appointment after Defendant Diaz directed that one be scheduled, this mistake or negligent action alone is not sufficient to bring a constitutional claim of deliberate indifference.” (citing Harris, 21 F.3d at 393)).
Most significantly, Merilien cannot show that any delay in seeing Dr. Liner exacerbated his skin condition. The medical records reflect Merilien's condition was largely a continuation of skin problems he had endured for years, and the treatment he received, including prescribed medication, was consistent with what he had received prior to July 2021. Although the parties agree Merilien's medical condition was serious, the evidence does not show his skin diagnoses required urgency in scheduling a follow-up to ASMP. Throughout the period in question, Merilien-by his own admission-continued to receive medication for his skin issues. Pl.'s Resp. to Bowens Mot. for Summ. J. 10, ECF No. 46; Pl.'s Attach. 6, ECF No. 46-6. Moreover, when Dr. Aljaaly saw Merilien in October 2022, he did not order an immediate dermatology consultation, but noted Merilien had sufficient medication until February 2023 and that a follow-up consultation was “in the process.” Whittington Ex. 2, at 5. To find Defendants deliberately indifferent would require finding they were obligated to overrule Dr. Aljaaly's evaluation of the urgency of Merilien's condition.
In his February 2022 grievance, Merilien claimed Dr. Liner's follow-up visit was supposed to involve freezing the “big bumps” on his skin. Whittington Ex. 1, at 5. Dr. Liner's notes, however, do not say anything about such procedure, instead simply noting he was to continue his acne medication, his right cheek would be monitored, and he was to follow-up in three months for the keloid on his ear. MR 385. If the keloid did not improve, Dr. Liner would biopsy it. Id. Additionally, when Merilien finally returned to Dr. Liner on February 2, 2023, she did not freeze any bumps on his skin, but only biopsied a single nodule Merilien requested she remove and continued him on his medication with the addition of Cordran tape.MR 9. Merilien explains this by claiming Dr. Liner refused to do the freezing procedure because the failure to return him within ninety days “caused her to have more work” and made his problem worse, but her records do not corroborate this allegation. Pl.'s Aff. 7, ECF No. 46-2. Further, Dr. Liner's alleged statements are inadmissible hearsay and cannot be considered on a motion for summary judgment. See Hines v. Parker, 725 Fed.Appx. 801, 807 (11th Cir. 2018) (per curiam) (citing Fed.R.Evid. 801(c) and Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (finding doctor's verbal statement to patient about effect of delay on treatment was inadmissible hearsay); see also Defee v. Allen, No. 7:16-CV-231-WLS, 2018 WL 11251598, at *6-7 (M.D. Ga. May 24, 2018). Merilien also suggests the delay in treatment caused him to have skin cancer, but this is also not supported by the medical records. Pl.'s Suppl. Resp. to Mots. for Summ. J. 8; MR 9, 315. In order to show a constitutional violation from any delay in treatment, Merilien is required to “place verifying medical evidence in the record to establish the detrimental effect of delay.” Hill, 40 F.3d at 1188. He has failed to do so, and Defendants are entitled to summary judgment.
Merilien states he was never provided Cordran Tape. Pl.'s Suppl. Resp. to Mots. for Summ. J. 5, ECF No. 83. Cordran Tape is the brand name for flurandrenolide tape, a topical corticosteroid prescribed to treat a variety of skin conditions, including eczema and dermatitis. RxList, Cordran Tape, https://www.rxlist.com/cordran-tape-drug.htm (last updated Aug. 23, 2022). According to the medical records, the prison pharmacy did not carry flurandrenolide tape. MR II 10. Instead, Merilien was continued on clobetasol cream, which-like Cordran Tape-is a high potency topical corticosteroid used to treat skin conditions. MR 290; Drugs.com, Clobetasol, https://www.drugs.com/clobetasol-topical.html (last updated Aug. 11, 1023); Drugs.com, Topical Steroids, https://www.drugs.com/drug-class/topical-steroids.html (last updated Apr. 13, 2023) The records show Merilien had been receiving clobetasol since at least November 2022 and previously received it for a period in late 2017 and early 2018. Pl.'s Attach. 6, at 2, ECF No. 466; MR 231, 244.
CONCLUSION
For the reasons explained above, it is recommended that Defendants' motions for summary judgment (ECF Nos. 38, 54) be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
In light of this recommendation, the Court also recommends Merilien's pending motions for preliminary and permanent injunction (ECF No. 36) and for an order to subpoena witnesses for trial (ECF No. 49) be DENIED AS MOOT. Merilien has also filed a motion for discovery, wherein he asks the Court to log in to a “friend's website” to view pictures and videos he says are “very relevant in this case,” or bring him to Court with his tablet to review this evidence. Pl.'s Mot. for Disc. 1-2, ECF No. 47. He does not describe exactly what this evidence is. This motion is DENIED. If Merilien has relevant evidence, it should have been submitted to the Court in response to the summary judgment motions. The Court has reviewed various photos and videos Merilien submitted into evidence (ECF No. 45). Most of these deal with his complaint about alleged unsanitary conditions at WSP and the cleaning products used by inmates, which he contends caused his skin conditions. See, e.g., Pl.'s Resp. to Whittington and Ashly Mot. for Summ J. 16, ECF No. 60. The claim the Court allowed to proceed past preliminary screening was a deliberate indifference to medical need claim, not a conditions of confinement claim. Order & R. 10, Mar. 27, 2023. Moreover, Merilien has not identified anywhere in the records where a medical provider attributed his skin conditions to chemicals used at WSP, and he has not presented evidence Defendants forced him to work with such chemicals in the face of a medical provider's order he not do so.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED.