United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
reasons below, the Court grants
Defendant's Motion for Summary Judgment . The Court
will enter a Final Judgment consistent with this opinion.
is a prisoner in South Mississippi Correctional Institute. On
February 26, 2018, he filed this lawsuit, alleging that, on
or about May 20, 2016, Dr. Abumer Akinwale injected medicine
in his right eye which caused him to lose all sight in it.
Complaint , at 4.
Court set an Omnibus Hearing for September 20, 2018, clearly
setting out the purposes of the hearing and providing
specific, detailed instructions for the parties. Order
Setting Omnibus Hearing .
September 4, 2018, Plaintiff requested additional time to
respond to Defendant's Answer and represented that he was
seeking representation. Request for Extension of Time ,
at 1. The Court denied the motion, noting that the Rules do
not require a responsive pleading to an answer. Order .
The Court also advised Plaintiff that he should not delay in
seeking representation because the case would proceed to
September 20, 2018, the Court had Plaintiff transported to
the courthouse and was prepared to conduct an Omnibus
Hearing, but Plaintiff alleged for the first time that he
needed a translator, despite having written and filed
numerous motions and pleadings in English. In an abundance of
caution, the Court reset the Omnibus Hearing for October 16,
2018, at 1:30 p.m. Order Setting Omnibus Hearing . Again,
the Court clearly explained the purposes of the hearing and
provided specific, detailed instructions to the parties.
day of the rescheduled Omnibus Hearing - in fact, nine
minutes after the hearing had begun - attorney Michael W.
Crosby filed a Notice of “Conditional” Appearance
on behalf of Plaintiff. Notice of Appearance . Crosby did
not appear at the hearing, contact the Magistrate Judge's
chambers by e-mail or phone to request a continuance, provide
prior notice that he had been retained. Rather, Crosby asked
in his Notice of Appearance  - again, filed after the
hearing had already begun - that the Court reset the hearing.
The Court did not know that Crosby had entered an appearance
until after the hearing had completed. Accordingly, the
Court conducted the Omnibus Hearing as scheduled. Plaintiff
and the interpreter were sworn, and the Court screened
October 17, 2018, the Court entered an Omnibus Order 
providing the details of Plaintiff's testimony. Plaintiff
alleged that Defendant injected medicine into his right eye,
that the injection caused him to go blind in that eye, and
that Defendant later told him that she had used the
“wrong” medicine. Plaintiff was unsure of the
year he received the injection, but he believed it could have
been in 2015 or 2016.
hearing, the Court questioned Plaintiff about a previous
lawsuit he filed in this Court, Espinoza v. Banks,
No. 1:17-CV-208-JCG. In that case, Plaintiff alleged that he
fell down in a prison transport van and injured his right
eye, causing him to go blind in that eye. Plaintiff claimed
that the pleadings in the previous lawsuit had been prepared
by someone else and that the allegations were a mistake.
Magistrate Judge described Plaintiff's claims. First,
Plaintiff claims that Defendant is a state actor, and that
she violated his constitutional right to be free from cruel
and unusual punishment, proceeding under 42 U.S.C. §
1983. Second, Plaintiff asserts a medical malpractice claim
against Defendant under Mississippi law.
October 23, 2018, Defendant filed her Motion for Summary
Judgment . On November 6, 2018, Plaintiff's attorney
- Michael Crosby - filed a Motion for Extension of Time 
to respond to the motion. The Court granted the motion in a
Text Order entered November 7, 2018. But Plaintiff never
responded to the motion, and it is ripe for review.
provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “Where the burden of
production at trial ultimately rests on the nonmovant, the
movant must merely demonstrate an absence of evidentiary
support in the record for the nonmovant's case.”
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808,
812 (5th Cir. 2010) (punctuation omitted). The nonmovant
“must come forward with specific facts showing that
there is a genuine issue for trial.” Id.
“An issue is material if its resolution could affect
the outcome of ...