United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
action is brought by plaintiff Tom Stanley, Jr., a state
prisoner who proceeds pro se and in forma pauperis under 42
U.S.C. § 1983. Plaintiff alleges deliberate indifference
to his pain. Magistrate Judge Bernard M. Jones filed a Report
and Recommendation on December 11, 2017. Doc. no. 42 (the
Report). The Report recommends granting defendant's
motion for summary judgment (doc. no. 36) based on plaintiffs
non-exhaustion of administrative remedies and his failure to
demonstrate deliberate indifference in violation of the
Eighth Amendment. Plaintiff also moves for appointment of
motion for appointment of counsel (doc. no. 49) is
DENIED. Nothing suggests that plaintiff is
unable to adequately represent himself in this matter.
addressing the Report, the court next explains why it
construes plaintiffs filings as having objected to the Report
although plaintiff has filed no document entitled as an
"objection." To do so, it is necessary to set out
some procedural background.
adopting the Report and entering judgment in favor of the
defendant, the court later vacated its order and judgment.
Doc. no. 48. It did so because plaintiff submitted two
motions which the court construed as an earlier motion for
appointment of counsel, and a motion asking the court to
vacate its judgment. Doc. nos. 46, 47. The court denied the
motion to appoint counsel (doc. no. 46), but granted the
motion to vacate (doc. no. 47). It did so because plaintiff
stated, and the record confirmed, that plaintiff had never
received the Report. The court provided plaintiff with an
additional twenty-eight days from the date of that order
within which to submit objections to the Report. Doc. no. 48.
that order was entered on February 2, 2018, plaintiff did not
submit any document entitled as an objection to the Report.
But plaintiff submitted his renewed motion asking for
appointment of counsel (doc. no. 49, the same motion that is
denied at the top of this order.) In that motion plaintiff
stated that "On December 5th2017 I sent all I
had to help me prove Doctor Balogh was in fact deliberately
indifferent to my cancer medical need." Doc. no. 49, p.
1. Plaintiff further stated that "I also sent the court
proof that I did in fact exhaust administrative remedies as
required, on January 26th 2018." Id.
reference, above, to the materials he sent to the court on
December 5, 2017, is a reference to plaintiff's affidavit
submitted in response to defendant's motion for summary
judgment. Doc. no. 41. That affidavit was received and
docketed while this matter was still before the magistrate
judge. The Report quotes the affidavit and explains why the
affidavit fails to dispute defendant's proposed
undisputed facts. Having reviewed that issue de novo, the
court agrees with the conclusions of the magistrate judge in
reference, above, to the exhaustion-related materials which
he sent to the court on January 26, is a reference to doc.
no. 47, the motion to vacate already discussed. Relevant here
are the exhibits attached to that motion. Doc. no. 47-1, pp.
1-7. The court construes these documents as offered by
plaintiff to support an objection to the Report's
conclusion that plaintiff indisputably failed to exhaust his
administrative remedies. After de novo review of those
materials and that issue, the court concludes that
nothing submitted by the plaintiff changes the court's
agreement with the Report's conclusion that
defendant's motion should be granted based on
plaintiff's nonexhaustion of administrative remedies.
short, the court has construed plaintiff's filings
liberally as constituting objections to the conclusions of
the magistrate judge regarding both nonexhaustion and the
failure to demonstrate deliberate indifference. Having
conducted de novo review, the court concurs with the
recommendations of the magistrate judge as stated in the
Report. Given the detailed analysis presented there, no
additional analysis is necessary here except to say that
although plaintiff's diagnosis is undoubtedly dire and
the pain caused by his cancer severe, these circumstances,
standing alone, do not amount to an actionable claim under
reasons stated in the Report - nonexhaustion of
administrative remedies, and plaintiff's failure to
demonstrate a triable issue regarding deliberate indifference
- defendant is entitled to summary judgment on the claims
alleged in this action. The court ACCEPTS,
AFFIRMS and ADOPTS the
Report. As recommended there, summary judgment is
GRANTED in favor of defendant Robert Balogh.
 To the extent that the administrative
materials submitted by the plaintiff relate to plaintiffs
grievance against Dr. Balogh, they were already in the record
and the Report explains why those materials show
nonexhaustion. The other administrative materials relate to a
different grievance, no. 16-011, regarding disposition of
plaintiff s Request to Staff regarding a nurse's
treatment of plaintiff. That grievance was eventually
returned to plaintiff unanswered, with the marked reason
being "Grievance submitted out of time from date of
incident or ...