Myles v. Kats-Kagan

Full title: HENRY MYLES, Plaintiff, v. GALINA KATS-KAGAN, Defendant

Court: United States District Court, N.D. Florida, Panama City Division

Date published: Feb 28, 2006

Case No. 5:05cv215-SPM/MD (N.D. Fla. Feb. 28, 2006)

Opinion

Case No. 5:05cv215-SPM/MD.

February 28, 2006

ORDER

STEPHEN MICKLE, District Judge

THIS CAUSE comes before the Court upon the Magistrate Judge's report and recommendation (doc. 10) dated December 30, 2005. Plaintiff was furnished a copy and has filed an objections (docs. 13 and 14). Pursuant to Title 28, United States Code, Section 636(b)(1), I find that the report and recommendation is correct and should be adopted by the Court.

According to the amended complaint and other documents submitted by Plaintiff, Plaintiff was suffering from cracked skin on his feet, for which he had been given vitamin A and D cream. The cream lasted approximately two months. The cream apparently helped with Plaintiff's foot problem but did not cure it. On two sick call visits in October and one sick call visit in November of 2004, Plaintiff was seen by medical staff and complained about his feet. Plaintiff requested medical staff to provide more cream for his feet, but he was not given any cream. On March 29, 2005, Plaintiff made another request to medical. He was seen by medical staff and prescribed antifungal cream, which cured the problem.

Plaintiff complains that the failure of medical staff to provide him with cream in October and November of 2004 constitutes cruel and unusual punishment through deliberate indifference to a serious medical need. At most, however, Plaintiff's complaint shows that medical staff could have been more attentive to his foot problem in October and November of 2004. The record is not sufficient to show that Plaintiff had a serious medical need at that time so as to state a claim for cruel and unusual punishment. Furthermore, although Plaintiff filed grievances, he did not follow through all levels of review.

Dismissal of the complaint is appropriate because Plaintiff has not demonstrated that he had a serious medical need and has not properly exhausted his administrative remedies. Accordingly, it is

ORDERED AND ADJUDGED:

1. The Magistrate Judge's report and recommendation (doc. 10) is adopted and incorporated by reference into this order.

2. Plaintiff's complaint is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.

3. The motion to produce (doc. 15) is denied as moot.

DONE AND ORDERED.