Noll v. Petrovsky, 87-1146

Decision Date08 September 1987
Docket NumberNo. 87-1146,87-1146
Citation828 F.2d 461
PartiesWilliam J. NOLL, Appellant, v. Joseph PETROVSKY, Warden, MCFP; Dr. Clawson, MCFP; Dr. Stanley Nelson, MCFP, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

William J. Noll, pro se.

Michael A. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before ARNOLD, Circuit Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

PER CURIAM.

William J. Noll appeals pro se from the district court's 1 order granting summary judgment in favor of appellees. We affirm.

Noll was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri (Medical Center). 2 He filed this Bivens -type action under the eighth amendment 3 against Joseph Petrovsky, Warden of the Medical Center; Dr. James W. Clawson, Chief of Health Programs at the Medical Center; and Dr. E. Stanley Nelson, Chief of Medicine at the Medical Center. Noll alleged that he received inadequate medical care at the Medical Center following his surgery on June 27, 1985, at a community hospital, and that he suffered various complications as a result. Specifically, Noll asserted that because Dr. Nelson either ignored Noll's complaints or failed to provide treatment, Dr. Nelson failed to exercise the medical skills, knowledge, and abilities ordinarily possessed and exercised by physicians in similar situations. Noll alleged that the other two defendants were liable because of Dr. Nelson's conduct.

The district court granted appellees a partial protective order from discovery pending disposition of appellees' motion for summary judgment. The court required Noll to obtain leave of court before serving discovery requests upon appellees. Several months later, the district court granted appellees' motion for summary judgment. As to Petrovsky and Dr. Clawson, the court reasoned that the doctrine of respondent superior was inapplicable to a Bivens -type action and that Noll had failed to show that either Petrovsky or Dr. Clawson were personally involved in Noll's medical care. As to Dr. Nelson, the court reasoned that Noll had failed to show facts of deliberate indifference, a requisite for a constitutional claim. This appeal followed.

On appeal, Noll first argues that the district court erred by not postponing its ruling on the motion for summary judgment until Noll had a reasonable opportunity to conduct adequate discovery. The district court gave Noll repeated notices that it intended to rule on the motion for summary judgment and that it was Noll's burden to rebut the defendants' evidence. Moreover, the district court gave Noll a reasonable opportunity to respond, including an extension of time. Noll neither challenged the district court's limitations on his ability to exercise his discovery rights as imposed in the protective order, nor sought discovery pursuant to its terms. Accordingly, we conclude that the district court did not abuse its discretion in ruling on the summary judgment motion when it did. See Cassidy, Inc. v. Hantz, 717 F.2d 1233, 1235 (8th Cir.1983) (per curiam).

Noll also argues that the district court erroneously granted summary judgment in favor of the defendants. Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to his case and on which he will bear the burden of proof at trial, there are genuine...

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