Opinion
Civil Action No. 7:04-cv-36(HL).
August 14, 2007
ORDER
This matter is before the Court on the Recommendation (Doc. 59) of United States Magistrate Judge Richard L. Hodge, entered July 3, 2007, in which the Magistrate Judge recommends that the Motion for Summary Judgment of Defendant Shirley Lewis be denied. Lewis has filed written objections to the Recommendation, as permitted by 28 U.S.C. § 636(b)(1). Counsel for Dennis Scott, Plaintiff, has filed a Motion to Extend Time (Doc. 64), seeking to stay indefinitely the time for responding to Lewis's objections because he has been unable to locate his client.
In her objections Lewis argues, among other things, that Scott has failed to come forward with affirmative evidence that contradicts the medical records that have been made a part of the record. However, Scott's position, as presented in his sworn affidavit, is that he never received the treatment documented in the medical records. Thus Scott has the daunting task of proving a negative, and it is quite possible that he will not be able, even at trial, to offer evidence other than his own testimony that would go to the issue of the absence of proper medical treatment. Nevertheless, Scott's testimony, as opposed by that of Lewis, which she has presented in the form of the medical records over which she has control, is sufficient to create a factual dispute. Thus, summary judgment is not appropriate.
In the objections, Lewis also complains of Scott's failure to respond to discovery, suggesting that this should provide a basis for granting her Motion for Summary Judgment. However, review of the file reveals no effort on the part of Lewis to compel Scott to respond to discovery. Moreover, it does not appear that Lewis deposed Scott, thereby denying herself a valuable opportunity to challenge Plaintiff on the very issues that form the core of his affidavit. In short, Lewis's discovery arguments have no merit.
The Court has given de novo consideration to Lewis's objections but finds that the arguments contained therein either have no merit or have already been considered and rejected by the Court. Accordingly, the Court hereby accepts the Recommendation of the Magistrate Judge; Defendant's Motion for Summary Judgment is denied. In view of the foregoing, Plaintiff's Motion to Extend Time (Doc. 64) is rendered moot. The Calendar Clerk is directed to set this matter for trial at the next Valdosta Term of Court.
SO ORDERED.