The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
MARCO DANE ACOFF, )
)
Plaintiff, )
)
v. ) Case No. 1:19-cv-00312-MHH-SGC
)
LATONYA CHAMES, et al., )
)
Defendants. )
MEMORANDUM OPINION
On December 22, 2020, the magistrate judge entered a report in which she
recommended that the Court grant the defendants’ motion for summary judgment
and dismiss Mr. Acoff’s lawsuit concerning black mold and brown recluse spiders
at the Calhoun County Jail. (Doc. 36). The magistrate judge reached three
conclusions. She found that Mr. Acoff is not entitled to injunctive relief because he
no longer is imprisoned at the Calhoun County Jail facility. She found that the
individual defendants are immune from the claims against them in their official
capacity, and she concluded that the defendants are entitled to judgment in their
favor on Mr. Acoff’s individual capacity claims because Mr. Acoff has not offered
evidence to show that he was injured by the defendants’ failure to remedy black
mold and brown recluse spiders at the Calhoun County Jail facility. (Doc. 36, pp.
10-11, 15-17). Mr. Acoff filed objections to the report and recommendation on
January 28, 2021, and previously had filed a response in opposition and a motion for
sanctions. (Docs. 31, 34, 39).
A district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district judge must “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3)
(“The district judge must consider de novo any objection to the magistrate judge’s
recommendation.”). A district court’s obligation to “‘make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made,’” 447 U.S. at 673 (quoting 28 U.S.C.
§ 636(b)(1)), requires a district judge to “‘give fresh consideration to those issues to
which specific objection has been made by a party,’” 447 U.S. at 675 (quoting House
Report No. 94-1609, p. 3 (1976)). United States v. Raddatz, 447 U.S. 667 (1980)
(emphasis in Raddatz).
Mr. Acoff objects because he “hasn’t been afforded with the full benefit of
discovery in this case.” (Doc. 39, p. 1). He believes discovery would help him
identify evidence to establish the causation element of his claim. Mr. Acoff
contends that if discovery had been conducted, it would have shown he “refused” a
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medical visit on February 18, 2019, because a nurse told him “it was a common
cold” and because he had a history of being charged for a medical visit “but not
helped.” (Doc. 39, p. 1). He also asserts he did not have $10.00 for the co-pay.
(Doc. 39, p. 1). Mr. Acoff’s objection pertains to this passage in Judge Cornelius’s
report:
Although the plaintiff alleges black mold caused him to “constantly
cough[] and spit[] Blackish, Yellow, and Greenish mucus” and suffer
upper respiratory problems (Doc. 4 at 1–2), he acknowledged in his
April 12, 2019 grievance that his respiratory problems “may be linked
to breathing this black mold.” (Doc. 29-9 at 13) (emphasis added). Lt.
Chames actually told the plaintiff that if he was having medical issues
he needed to contact the medical department. (Id.). The plaintiff did not
do so.
In fact, despite months of complaining about black mold, the plaintiff
only asked to be seen on one occasion for chest pain, lightheadedness,
shortness of breath, yellow/green mucous, and fatigue. (Doc. 29-9 at
16). And when the plaintiff was seen on February 18, 2019, the plaintiff
refused treatment. (Doc. 29-7 at 2; Doc. 29-8 at 2). The plaintiff signed
a refusal of medical treatment and release of responsibility stating his
reason as follows: “Because I don’t have any money to keep paying and
not getting help.” (Doc. 29-8 at 2). There is not a scintilla of evidence
in the record the plaintiff would have been refused medical treatment
based on an inability to pay.
(Doc. 36, p. 16) (emphasis in report).
The Court overrules Mr. Acoff’s objection for two reasons. First, on
February 14, 2020, the Court entered an Order for Special Report, which provides
instructions and a deadline for obtaining permission from the Court to conduct
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discovery. (Doc. 22, p. 7). The Court entered that order more than three months
before Mr. Acoff filed his opposition to the defendants’ summary judgment motion,
but Mr. Acoff did not ask for discovery. (Doc. 31). Therefore, Mr. Acoff cannot
now complain about the availability of discovery.
Second, Mr. Acoff has not challenged the finding that he asked to be seen at
the Calhoun County Jail only one time for complaints of chest pain, lightheadedness,
shortness of breath, mucous, and fatigue. (Doc. 36, p. 16; Doc. 29-9, p. 16). He
made that request for medical treatment on February 15, 2019. (Doc. 29-9, p. 16).
When he visited the jail medical office on February 18, 2019, Mr. Acoff refused
treatment, reporting that he did not have money to pay for treatment that was not
helping him. (Doc. 29-7, p. 2; Doc. 29-8, p. 2). The magistrate judge found that
there was no evidence in the record that Mr. Acoff would have been refused medical
treatment “based on an inability to pay,” and Mr. Acoff has not contradicted the
magistrate judge’s finding. Mr. Acoff’s lack of treatment and related inability to
establish causation seem to be a matter of choice.
Mr. Acoff contends that after he was transferred from the Calhoun County Jail
to the Alabama Department of Corrections, he had “a series of chest x-rays and
[sinus] exams and after a year it has been determined that what I . . . have . . . is
[sinusitis].” (Doc. 39, p. 2). Mr. Acoff argues that these medical records would
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show “ both causation is in this case and the relationship between breathing the black
mold and plaintiff’s injuries.” (Doc. 39, p. 2).1 But even if the medical records do
indicate that Mr. Acoff was diagnosed with sinusitis after his transfer, he still cannot
establish a causal link between his sinusitis and his exposure to black mold at the
Calhoun County Jail without some medical testimony or other medical evidence that
would link his sinusitis to mold exposure.
Finally, Mr. Acoff renews his argument that the defendants have committed
perjury by “submitting false and malicious statements while under oath,” and he
draws the Court’s attention to his motion for sanctions. (Doc. 39, p. 3, citing Doc.
31). Mr. Acoff contends that the defendants submitted false statements in the form
of a facility inspection report which indicates that the design capacity for the
Calhoun County Jail is 400 inmates, and the actual population of inmates is 390.
(Docs. 31, 34, 39). This information pertains to Mr. Acoff’s initial allegations
about overcrowding at the Calhoun County Jail. As the Court held in its January 9,
2020 memorandum opinion in this case, (Doc. 18), Mr. Acoff could not pursue his
overcrowding claim without first filing an amended complaint and paying the full
filing fee. The record does not indicate that Mr. Acoff submitted an amended
1 Although Mr. Acoff requested copies of his medical records, a prison official informed him that
the prison charges a $5.00 search fee, $1.00 a sheet for the first 20 pages, and $0.50 for each
additional page, which he cannot afford. (Doc. 39, pp. 2, 5).
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complaint or a filing fee. Therefore, his arguments relating to alleged overcrowding
are not properly before the Court.
Having reviewed the court record, including the report and recommendation
and Mr. Acoff’s objections, the Court overrules Mr. Acoff’s objections, adopts the
magistrate judge’s report, and accepts her recommendation. Accordingly, the Court
grants the defendants’ motion for summary judgment (Doc. 29).
The Court will enter a final judgment.
DONE and ORDERED this March 24, 2021.
f ADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE