Opinion
C.A. #9:00-24-23
March 23, 2001
ORDER
This matter is before the court for review of Magistrate Judge Dixon's Report and Recommendation ("R R"), made in accordance with 28 U.S.C. § 636 (b)(1)(B) and Local Rule 73.02(B)(2)(a), recommending that this court grant summary judgment against Plunkett and deny Plunkett's motions for summary judgment and for a writ of ad testificandum. The recommendation is adopted, and summary judgment on Plunkett's claims is granted.
Plunkett's Petition for a Writ of Ad Testificandum requests that he be brought into court to argue his claims. Because granting the writ would not aid the court in adjudicating his claims, the court denies to issue the writ.
A party may object, in writing, to a magistrate judge's R R within ten days after being served with a copy. 28 U.S.C. § 636 (b)(1). The magistrate judge filed a R R on December 8, 2000, and Plunkett timely objected after this court granted him an extension. The magistrate judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 269 (1976). The Court reviews de novo those portions of the R R to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636 (b)(1).
After a complete review of the record in this case and of the record and court rulings in Plunkett's previous lawsuit filed in this District in 1995 including the final judgment entered in that case in 1997, this court finds the magistrate judge's R R fairly and accurately summarizes the facts and applicable law. This court also finds the magistrate judge made no error and appropriately analyzed the issues by applying the correct legal principals and reasoning. Therefore, this court adopts the R R in whole and specifically incorporates it herein. This order will discuss only Plunkett's objections.
OBJECTIONS
Plunkett's Amended Objections were filed on January 8, 2001. First, Plunkett objects that Defendants "tricked the court into believing that plaintiff did not have a serious medical condition," (Obj. at 4), and that he did not have all evidence from Defendants to fully prosecute his previous case. Second, Plunkett objects to the magistrate judge's recommendation of granting summary judgment because Defendants' own policies required surgery in his case. Third, Plunkett objects that Defendants denied him medical care because of his efforts as a jailhouse lawyer and "writ writing." Fourth, Plunkett objects that the magistrate judge did not find Defendants' failure to resubmit a request for surgery in 1995 as a basis for denying the Defendants' motion for summary judgment. However, Plunkett's claims under Bivens have been fully litigated and are barred by res judicata. His objections in this case do not support any other conclusion.
Bureau of Prisons Policy Statement 6000.03. section 6004.01(b) states: "Provision of surgical and medical procedures is limited to cases that fall within [`medically mandatory' and `presently medically necessary']." Doctor Parina's diagnosis classified Plunkett's need for surgery on October 23, 1995, as "presently medically necessary."
Although the R R fully and adequately discussed this reasoning for granting summary judgment on Plunkett's Bivens claims, Plunkett's objections relate to only one point — he did not have all the evidence he needed in his earlier case. This point is without merit. In the previous case, Plunkett submitted evidence from Dr. E. Asaad recommending surgical correction, and the court considered it. (Pl. Mot. to attach Exhibits, Ex. 1, filed Aug. 12, 1996) Other evidence in that case also related the seriousness of his medical condition and supported the court's decision on his claims. In fact, Plunkett only points to an October 23, 1995, diagnosis by Defendant Parina that labeled his condition a "presently medically necessary." Plunkett also admits in his Objections at page 7 that he was told on October 23, 1995, by Dr. Parina that he was changing his status to "presently medically necessary." Because this diagnosis and notice occurred prior to final decision in that case — and actually occurred only a few months after Plunkett filed that lawsuit in 1995 — he had a full and fair opportunity to fully litigate his claims at that time.
The allegedly new evidence does not justify relitigation of the same claims in this case. Plunkett was able to fully litigate his Bivens claims in his earlier lawsuit filed in 1995, and therefore, Plunkett's first, second, third, and fourth objections are overruled.
Plunkett also repeats his arguments that are without merit and makes claims of retaliation that are unsupported and that do not change his claims in any way and requests counsel to which he is not entitled. Plunkett does not object to the magistrate judge's recommendation on his other claims. The magistrate judge's R R correctly decides the issues to which Plunkett does not specifically object and thus is adopted and incorporated herein for those issues.
CONCLUSION
It is, therefore,
ORDERED, for the foregoing reasons that Defendants' Motion for Summary Judgment is GRANTED, and it is
FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is DENIED, and it is
FURTHER ORDERED that Plaintiff's Petition for Writ of Ad Testificandum is DENIED.