United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING PLAINTIFF'S MOTION AND GRANTING HIM
ADDITIONAL TIME TO FILE WRITTEN OBJECTIONS
B. LIBBY, UNITED STATES MAGISTRATE JUDGE
prisoner civil rights action, Plaintiff Gary Swyck alleges
Eighth Amendment claims of failure to protect. Plaintiff is a
prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (TDCJ-CID) and is currently
confined at the Polunsky Unit in Livingston, Texas.
Plaintiff's allegations in this civil rights action arise
in connection with his confinement at the McConnell Unit in
Beeville, Texas. Pending before the Court is Plaintiff's
“Motion for Leave for Defences [sic] Objections Medical
Exam.” (D.E. 49).
November 14, 2016, Plaintiff filed his original complaint
naming the following eight (8) individuals as defendants: (1)
Brad Livingston, former TDCJ-CID Director; (2) Kenneth
Putnam, Assistant Warden; (3) Corey Furr, Assistant Warden;
(4) Major McKee; (5) Major Michael Alsobrook; (6) Emil Garza,
TDCJ-CID Assistant Regional Director; (7) Patricia Chapa,
TDCJ-CID Assistant Regional Director; and (8) Kimberly Ward,
TDCJ Assistant Regional Director. (D.E. 1, pp. 2-3).
Plaintiff alleges that prison officials at the McConnell Unit
failed to protect him from inmates who had access to
Plaintiff's food trays and repeatedly poisoned
Plaintiff's food. Plaintiff sues Major McKee because he
was the TDCJ official in charge of administrative segregation
at the McConnell Unit where Plaintiff was housed during the
times relevant to this lawsuit.
December 8, 2016, the undersigned issued a Memorandum and
Recommendation (December 8, 2016 M&R), recommending that
the Court: (1) dismiss Plaintiff's claims for monetary
damages against all defendants in their official capacities;
(2) retain Plaintiff's Eighth Amendment failure to
protect claim against Major McKee in his individual capacity;
and (3) dismiss Plaintiff's remaining claims against each
of the other defendants for failure to state a claim and/or
as frivolous. (D.E. 8). Thereafter, pursuant to Federal Rule
of Civil Procedure 35, Plaintiff filed a Motion for Leave for
a Physical Examination. (D.E. 30). On March 14, 2017, the
undersigned denied this motion, concluding that Rule 35 may
not be used by Plaintiff either to secure medical treatment
for himself or to obtain expert witness testimony on his
behalf. (D.E. 31).
22, 2017, Major McKee filed a motion for summary judgment
with respect to Plaintiff's Eighth Amendment claim. (D.E.
42). Plaintiff did not respond to the summary judgment
motion. On August 21, 2017, the undersigned issued a
Memorandum and Recommendation (August 21, 2017 M&R), in
which it recommended granting Major McKee's summary
judgment motion and dismissing Plaintiff's Eighth
Amendment claim with prejudice. (D.E. 47).
August 21, 2017, the undersigned also entered an order
granting Major McKee's motion for protective order with
regard to Plaintiff's discovery requests. (D.E. 48). The
undersigned further struck Plaintiff's motion for
discovery from the record and denied the following motions
without prejudice to renew should the August 21, 2017 M&R
not be adopted: (1) Plaintiff's motions to compel
discovery and/or to deny protection order (D.E. 36, 38); and
(2) Plaintiff's motions for settlement (D.E. 37, 39).
present motion, Plaintiff essentially asks the undersigned to
reconsider the previous orders denying him a physical
examination and motions to compel discovery. (D.E. 49).
Plaintiff states that he was waiting on his discovery
requests before filing a response to the summary judgment
motion. (D.E. 49, p. 1). He further complains about being
denied a physical examination as well as an MRI or CAT scan
which, according to Plaintiff, would reveal the extent of his
poisoning. (D.E. 49, p. 2).
however, provides nothing to cause the undersigned to
reconsider any aspect of the orders issued on March 14 and
August 21, 2017. As stated in his motion for protective
order, Major McKee disclosed “all of Plaintiff's
grievances, medical records, from July 2014 to January of
2017, and the “No Records Affidavits” for any
I-60's, Emergency Action Center Reports, and the Office
of the Inspector General Reports.” (D.E. 34, p. 2). The
medical records submitted to the Court depict Plaintiff's
medical condition and treatment received during this time
period, and Plaintiff fails to indicate how any additional
medical evidence could be relevant to his claim. For the
reasons stated in the March 14 Order, Plaintiff also is not
entitled to a medical examination based on his speculation
that it could support his claims of being poisoned.
IT IS ORDERED that Plaintiffs "Motion for Leave for
Defences [sic] Objections Medical Exam, " construed as a
motion for reconsideration (D.E. 49), is DENIED
further appears to advance arguments in his motion that
challenge the findings and conclusions of the
undersigned's August 21, 2017 M&R. However, the
record to date reflects that Plaintiff has not filed any
formal written objections. Accordingly, the undersigned
GRANTS Plaintiff until OCTOBER 6, 2017 to file his written
objections to the August 21, 2017 M&R's proposed
findings, conclusions, and recommendation. Plaintiff is
further INSTRUCTED to label his written ...