United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
Taylor, a Virginia inmate proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983. By
memorandum opinion and order entered on March 6, 2017, the
court granted summary judgment for two defendants in this
case, Dr. Dulaney and Nurse Stanford, a medical department
supervisor. Taylor v. Fleming, No. 7:15CV00653, 2017
WL 888362 (W.D. Va. Mar. 6, 2017). Taylor alleged in the
amended complaint (Dkt. No. 77) that Dr. Dulaney did not
adequately monitor or treat him for excessive weight loss in
2014 and 2016 and refused to hear his complaint or treat him
properly for headaches in October 2015. The court found that
Taylor had not presented disputed facts to show that Dr.
Dulaney had acted with deliberate indifference to any serious
medical need. Id. at 3-5. The court also found that
Taylor had not alleged any action or omission by Nurse
Stanford in violation of his rights and could not hold her
vicariously liable under § 1983 for the actions or
omissions of others. Id. at *3.
has filed a pleading (Dkt. No. 108), arguing that the summary
judgment was prematurely granted or without merit. Given the
arguments and the timing of the motion within 28 days of the
order granting summary judgment, the court construes the
submission as a motion to alter or amend judgment under Rule
58(e) of the Federal Rules of Civil Procedure. After review
of the record, the court reaffirms the finding that these
defendants are entitled to summary judgment as a matter of
law and will deny Taylor's motion.
first contends that the court granted summary judgment
without allowing him to obtain requested discovery of medical
records. The court finds no basis here to amend the judgment.
In a separate motion filed before the amended complaint,
Taylor complains that the defendants failed to respond to
discovery requests seeking, among other things, production of
a copy of Taylor's medical records from 2006 to 2014.
(Pl.'s Mot. Compel 2, Dkt. No. 52.) Taylor states that he
submitted written requests for production of these documents
in January 2016, but has never received them. At no time
prior to the summary judgment opinion did Taylor demonstrate
how these medical records were “essential” to his
response to the defendants' motion. See Fed. R.
Civ. P. 56(d) (requiring litigant to provide “affidavit
or declaration showing, for specified reasons, it cannot
present facts essential to justify its opposition”).
Moreover, with the motion for summary judgment, the
defendants provided copies of medical records for Taylor,
covering from March 9, 2014 through February 8, 2016, which
more than covered the period when Dr. Dulaney treated Taylor
at Wallens Ridge. For these reasons, the court finds no
discovery-related ground for vacating the order granting
next argues that the court's ruling on summary judgment
should be vacated because his motions for appointment of
counsel (Dkt. Nos. 13 and 53) were denied. “[A] §
1983 litigant has no right to appointed counsel . . .
.” McMillian v. Wake Cnty. Sheriff's
Dep't, 399 F. App'x 824, 829 (4th Cir. 2010)
(citing Bowman v. White, 388 F.2d 756, 761 (4th Cir.
1968)). Nevertheless, a district court may appoint
counsel when “a pro se litigant has a colorable claim
but lacks the capacity to present it.” Id.
(quoting Whisenant v. Yuam, 739 F.2d 160, 163 (4th
Cir. 1984)). In its orders denying Taylor's motions for
appointment of counsel (Dkt. Nos. 14 and 54), the court held
that Taylor had not made the requisite showings. Moreover, in
granting summary judgment, the court found that Taylor had
not stated meritorious claims, another ground justifying the
court's denial of counsel. Accordingly, the court finds
the denial of appointment of counsel offers no basis for
relief from the summary judgment ruling.
Taylor contends that his allegations were sufficient to
preclude summary judgment. His contentions do not satisfy the
prevailing standard for relief under Rule 59(e).
A Rule 59(e) motion may only be granted in three situations:
“(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Zinkand v. Brown,
478 F.3d 634, 637 (4th Cir. 2007) (citations omitted). It is
an extraordinary remedy that should be applied sparingly.
EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112
(4th Cir. 1997).
Mayfield v. Nat'l Ass'n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012).
present motion, Taylor does not identify any intervening
change in controlling law. He seeks to overturn summary
judgment by alleging new facts or emphasizing others already
addressed: that Nurse Stanford alleged “failed in doing
what Dr. Thompson expected of her years ago by not having the
nursing staff monitor my weight week-to-week for a hyper
thyroid condition which Dr. Dulaney herself explained could
be fatal”; that Taylor's hyperthyroid condition had
been diagnosed in 2007; that two doctors, who treated him
before Dr. Dulaney's tenure that started in 2014, had
prescribed an energy drink to address weight loss related to
hyperthyroid; and that Dr. Dulaney refused to prescribe an
energy drink, despite evidence of weight loss; that he had
complained of headaches that “caused problems with
hand-to-eye coordination and problems writing at
times”; and that his headache complaints were
“ignored” for more than a month and then went
untreated by Dr. Dulaney. (Mot. 2-4, Dkt. No. 108)
careful review, the court concludes that all of the facts
mentioned in Taylor's present motion are accounted for in
the court's memorandum opinion, or are not inconsistent
with the findings in that opinion, and thus, do not alter the
court's conclusions on Taylor's claims. Therefore,
the court finds no clear error or manifest injustice arising
from the court's order granting summary judgment for Dr.
Dulaney and Nurse Stanford. For the reasons stated, the court
concludes that the motion for reconsideration must be denied.
appropriate order will be entered.
 Moreover, Taylor's motion to
compel does not comply with Rule 37 of the Federal Rules of
Civil Procedure and will be ...