Summary
chastising plaintiff for, "in what could be characterized as an attempt to 'sandbag' the Court, . . . wait[ing] until after issuance of [the Report and Recommendation] to present evidence he apparently possessed all along"
Summary of this case from Strouse v. WilsonOpinion
2:96-CV-0114.
July 9, 2003
ORDER DENYING, IN PART, AND GRANTING, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On this day came for consideration plaintiff's Objections to the May 16, 2003, Report and Recommendation in the instant cause and defendants' July 2, 2003, Reply thereto.
Plaintiff's Objections were untimely. Nevertheless, the Court considered them under Rule 59, Federal Rules of Civil Procedure, and granted relief by opening Judgment and requiring defendants to reply.
Plaintiff's only relevant objection is based on evidence he did not present and to whose location in the record he did not point when making his response to defendants' summary judgment motion. Instead, in what could be characterized as an attempt to "sandbag" the Court, plaintiff waited until after issuance of judgment to present evidence he apparently possessed all along.
Exhibit A to plaintiff's Objections.
Nevertheless, giving plaintiff the full benefit of the doubt and out of solicitude for his pro se status, the Court will examine plaintiff's new evidence and defendants' reply to plaintiff's argument and evidence.
Plaintiff argues his newly-presented evidence of an urgent referral to the Brace and Limb Clinic creates a fact issue in light of the defendants' admission that REVELL and GONZALES both worked on the Utilization Review Committee. Plaintiff asks, "[i]f the referral was for plaintiff to be sent within thirty days, why didn't they?" Defendants respond by contending plaintiff has failed to provide additional evidence creating a genuine issue of material fact; however, defendants do not present particularized argument.
Defendant GONZALES has presented an affidavit stating he and defendant REVELL both were involved in utilization review and may have had some involvement in decisions concerning plaintiff's referrals. GONZALES said he could not ascertain, from his review of plaintiff's records, whether he or defendant REVELL were ever actually involved in any decisions concerning plaintiff's referrals but opined that, in any event, he did not see any errors in handling them. GONZALES made no mention of the urgent referral or any reason why it was apparently never processed. No further information has been provided by defendant REVELL.
In light of the above, it appears to the Court that plaintiff has identified evidence presenting a material issue of relevant fact and that the instant cause should proceed to trial.
Nevertheless, it is clear that this cause should not proceed to trial against all defendants. Plaintiff's objection does not touch on defendant BROWN in any manner nor does it or any of the evidence of record in this cause show any way in which BROWN could have been responsible for the violation of constitutional rights asserted by plaintiff.
For all the above reasons, the Court reiterates its adoption of the May 16, 2003, Report and Recommendation with respect to defendant BEN BROWN and rejects the Report and Recommendation with respect to defendants GONZALES and REVELL.
Defendants' motion for summary judgment is GRANTED, in part, and DENIED, in part. Plaintiff's claims against defendant BEN BROWN are DISMISSED WITH PREJUDICE. Plaintiff's claims against defendants GONZALES and REVELL shall proceed to trial on the merits in accordance with an order setting trial to be issued at some future date.
IT IS SO ORDERED.