Hancock v. Hood
| Decision Date | 18 February 2010 |
| Docket Number | Civil Action No. 2:09-00026-KD-N. |
| Parties | David HANCOCK, Plaintiff, v. James HOOD, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Bruce Boynton, Selma, AL, for Plaintiff.
Joseph Lister Hubbard, Jr., Montgomery, AL, Abigail Lounsbury Morrow, Taylor Ritter, P.C., Birmingham, AL, Bert P. Taylor, Orange Beach, AL, John Day Peake, III, Lyons, Pipes & Cook, Mobile, AL, for Defendants.
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(1), and dated January 25, 2010, is ADOPTED as the opinion of this Court with the exception of footnote seven which is STRICKEN.
(1) the motion to dismiss filed by Dr. Brian S. Claytor (doc. 34) is GRANTED as follows: All claims asserted against Dr. Claytor are DISMISSED with prejudice except the claim under the Alabama Medical Liabilities Act, Ala.Code § 6-5-484 (1975) asserted against Dr. Claytor in Count Five of the Third Amended Complaint, which is DISMISSED without prejudice;
(2) the alternative motion to transfer filed by Dr. Claytor (doc. 34) is DENIED;
(3) the motion to dismiss filed by Perry County Sheriff James Hood (doc. 39) is GRANTED and the claims asserted against Sheriff Hood are DISMISSED with prejudice; and
(4) the motion to dismiss filed by Defendant Tommy Buford (doc. 60) is GRANTED and the claims asserted against Tommy Buford are DISMISSED with prejudice.
Thus, it is ORDERED that this action is DISMISSED in its entirety.
This action is before the Court on three separate motions filed by the defendants: (1) a motion to dismiss or, in the alternative, to transfer for improper venue (doc. 34) filed by Dr. Brian S. Claytor; (2) a motion to dismiss or, in the alternative, for summary judgment (doc. 39) filed by Perry County Sheriff James Hood; and (3) a motion to dismiss or, in the alternative, for summary judgment (docs. 60-61) filed by Tommy Buford, Assistant Warden of the Perry County Detention Center.1 These matters have been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(A). Upon consideration of the motion and all pertinent portions of the record, and there being no opposition by the plaintiff, it is recommended that the three motions to dismiss be granted and that Dr. Claytor's motion to transfer be denied.
Plaintiff David Hancock filed his original complaint on January 16, 2009 (doc. 2) pursuant to 42 U.S.C. § 1983 and asserted various claims against four defendants: (1) James Hood, the Sheriff of Perry County, Alabama, in his individual capacity; (2) Tommy Buford, Assistant Warden of the Perry County Detention Center; (3) LCS, Inc., the alleged owner of the Perry County Detention Center; and (4) Brian S. Claytor, M.D., a surgeon who operated upon the plaintiff. Plaintiff entitles his claims as Assault and Battery (Count One), Assault and Battery Under State Law (Count Two), Unreasonable Seizure (Count Three), Conspiracy to Deprive Civil Rights (Count Four), and Violation of Alabama Medical Liabilities Act (Count Five).
On May 11, 2009, Plaintiff filed an Amended Complaint (doc. 11), which was stricken by the Court by Order dated June 5, 2009 for failure to contain a certificate of service (doc. 15). On June 8, 2009, Plaintiff filed a document entitled "Third Amended Complaint" (doc. 17) in which the corporate status of LCS was changed from "Inc." to "LLC".
On June 10, Plaintiff filed a motion (doc. 20) purporting to seek leave "to amend his Second Amended Complaint to correct a misnomer naming LCS, Inc. instead of LCS, LLC and adding all documents sent to defendant Hood to comply with the Prison Litigation Reform Act (42 U.S.C. 1997c)." Simultaneously, Plaintiff filed a document entitled "Third Amended Complaint" (doc. 21) which is identical to the document filed on June 8, 2009 (doc. 17) except with respect to the certificate of service and certain papers attached to the later document evidencing a claim by Plaintiff to the Alabama Board of Adjustment. However, by Order dated June 12, 2009 (doc. 24), the Court struck both the motion to amend (doc. 20) and the proposed third amended complaint (doc. 21) for failure to comply with the Court's rules regarding filing, signing and verifying documents. Plaintiff filed another motion to amend on June 25, 2009 (doc. 27). This motion was denied by Order dated July 2, 2009 (doc. 31) because the attached papers relating to Plaintiff's administrative claim were then irrelevant and the proposed amended complaint was otherwise identical to the one filed on June 8, 2009 (doc. 17).
While the Court was sorting out Plaintiff's various motions to amend and amended complaints, Defendant Tommy Buford filed, on June 24, 2009, a motion for a thirty day extension of time to file a responsive pleading (doc. 26) which was granted in the same Order of July 2, 2009 wherein the Court denied Plaintiff's last motion to amend (doc. 31). On July 9, 2009, Defendant Hood filed a motion (doc. 32) for a clarification about which complaint required a response and asked as well for a thirty day extension of time within which to respond. By Order dated July 10, 2009 (doc. 33), Sheriff Hood was advised to respond to the Third Amended Complaint filed on June 8, 2009 (doc. 17) and to do so by August 10, 2009.
On August 21, 2009, defendant LCS, LLC was dismissed by the Court without prejudice. (Doc. 43). Thus only three defendants remain in this litigation, Dr. Brian S. Claytor, Sheriff James Hood and Tommy Buford.
Dr. Claytor filed his motion to dismiss or, in the alternative, to transfer for improper venue (doc. 34) on July 10, 2009. The Court entered an order on July 13, 2009 (doc. 35) allowing any response in opposition to be filed by July 27, 2009. The only response filed by that deadline was an opposition (doc. 38) from Tommy Buford, a codefendant, to Dr. Claytor's alternative motion for transfer of the action to the United States District Court for the Northern District of Alabama. Dr. Claytor filed a reply to Buford's opposition (doc. 41) on August 4, 2009.
On September 28, 2009, well over two months past the original response deadline, Plaintiff's counsel requested (doc. 55) leave to respond to Dr. Claytor's motion "no later than October 2, 2009". Over Dr. Claytor's objection (doc. 57), the Court granted plaintiff's request (doc. 58) and permitted a response by October 2, 2009. Plaintiff has neither responded nor sought additional time within which to do so. The Court must, therefore, treat Dr. Claytor's motion as unopposed. On October 16, 2009, Dr. Claytor filed a motion (doc. 59) for the Court to enter an order granting his motion to dismiss for lack of objection by the plaintiff.
Sheriff Hood filed his motion to dismiss or, in the alternative, for summary judgment (doc. 39) on August 4, 2009. The Court entered an order on August 18, 2009 (doc. 42) allowing any response in opposition to be filed by September 4, 2009. On September 3, 2009, plaintiff filed a motion (doc. 48) for an unspecified extension of time to respond to Sheriff Hood's motion and the Court granted the motion on September 4, 2009 (doc. 52) by resetting the response deadline to September 21, 2009.2
On September 4, 2009, Tommy Buford filed his own motion (doc. 49) for an extension of time to respond to Sheriff Hood's motion3 which was granted on September 8, 2009 (doc. 53). The only opposition to Sheriff Hood's motion was filed by Co-Defendant Tommy Buford on September 21, 2009 (doc. 54). Plaintiff did not file any response to Sheriff Hood's motion by the September 21st deadline.
On September 28, 2009, Plaintiff's counsel requested (doc. 55) leave to respond "out of time" to Sheriff Hood's by "no later than October 2, 2009." Over Sheriff Hood's objection (doc. 56), the Court granted plaintiff's request and permitted a response by October 2, 2009 (doc. 58). To date, Plaintiff has neither responded to the motion nor has he sought any further extensions of time within which to do so. The Court must, therefore, treat Sheriff Hood's motion as unopposed by the Plaintiff.
Tommy Buford filed his motion to dismiss or, in the alternative, for summary judgment (docs. 60-61) on November 10, 2009. The Court entered an order on November 18, 2009 (doc. 62) allowing any response in opposition to be filed by November 30, 2009. Plaintiff has neither responded nor sought additional time within which to do so. The Court must, therefore, also treat Tommy Buford's motion as unopposed. On December 11, 2009, Tommy Buford filed a reply to plaintiff's lack of opposition (doc. 63).
Upon consideration of the Plaintiff's Third Amended Complaint (doc. 17), Dr. Claytor's unopposed motion to dismiss (doc. 34), Sheriff Hood's unopposed motion to dismiss (docs. 39-40), Tommy Buford's unopposed motion to dismiss (docs. 60-61), and all other pertinent portions of the record, the Undersigned finds the following facts to be undisputed by the Plaintiff:
1. The plaintiff, David Hancock ("Hancock"), is presently an inmate at Limestone Correctional Facility serving an eighteen year sentence for manslaughter. (Third Amended Complaint-Doc. 17-at ¶ 3). At some unspecified time in 2006, while Hancock was being held as a pretrial detainee at the Perry County Jail on charges of capital murder, he alleges that he fell and injured himself. (Id. at ¶ 8). Plaintiff was subsequently moved to the Perry County...
To continue reading
Request your trial
-
Salter v. Booker, CIVIL ACTION NO. 12-0174-CG-N
...("We do not dispute [the prison official's] right to rely on medical professionals for clinical determinations."); Hancock v. Hood, 686 F. Supp. 2d 1240, 1257 (S.D. Ala. 2010) (stating that neither this Court, nor the Sheriff should "be required to substitute their medically untrained judgm......
-
King v. Rubenstein
...to his Complaint, his signing the consent form was the only obstacle between him and general population. But see Hancock v. Hood, 686 F. Supp. 2d 1240, 1249-50 (S.D.Ala. 2010) (finding that plaintiff's Fourth Amendment claim was foreclosed by plaintiff's consent to surgery and plaintiff's f......