Lawless v. Muskingum County

Jun 6, 2002
No. 01-4199
Versions:36 F. App'x 192

ORDER

Robert J. Lawless appeals a district court order dismissing his civil rights action filed under 42 U.S.C. § 1983. The ease has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a).

Seeking monetary relief, Lawless sued Muskingum County (Ohio) and numerous county officials, alleging that the defendants violated his constitutional rights when he was convicted of a felony in 1985 and indicted on another charge in 1999. Lawless also alleged that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment when he was jailed for two days. With the exception of Lawless’s Eighth Amendment medical claim, the district court dismissed his claims for failure to state a claim The court subsequently granted summary judgment to the defendants on Lawless’s Eighth Amendment medical claim and dismissed the case. Lawless has filed a timely appeal.

The defendants initially argue that Lawless is limited on appeal to challenging the district court’s grant of summary judgment because he only listed the court’s final judgment in his Notice of Appeal. While a notice of appeal must designate the judgment or order being appealed under Fed. R.App. P. 3(c)(1)(B), an appeal from a final judgment usually draws into question all of the district court’s prior non-final rulings and orders. Newman v. Fed. Express Corp., 266 F.3d 401, 404 (6th Cir.2001); Crawford v. Roane, 53 F.3d 750, 752 (6th Cir.1995). Although Lawless only referred to the final judgment in his Notice of Appeal, his brief sufficiently advised the defendants that he also wished to challenge prior non-final rulings and orders of the district court. Therefore, this court has jurisdiction to address these issues on appeal. See Crawford, 53 F.3d at 752-53.

Upon review, we conclude that the district court properly granted summary judgment for the defendants on Lawless’s Eighth Amendment medical claim. Lawless was incarcerated at the Muskingum County Jail for two days in January 1999. Prior to his incarceration, Lawless suffered a knee injury, and he argues that the *193defendants delayed his receipt of medical treatment until after his release from the jail. For an Eighth Amendment claim based on an alleged delay in treatment, the prisoner must place verifying medical evidence in the record establishing the detrimental effect of the delay. Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir.2001). The only medical evidence in the record addressing the alleged delay states that “it would have been preferable to have had injuries immediately evaluated and treated; however, I cannot tell from the records and history reviewed if the delay may have caused this patient additional injuries.” Since Lawless has not presented any medical evidence establishing the detrimental effect of the delay, the defendants are entitled to summary judgment on this claim.

Lawless also argues that the district court should not have dismissed his remaining claims against the defendants because they were not immune from suit. However, the district court did not conclude that the defendants had immunity; instead, the court concluded that Lawless’s claims were not cognizable under § 1983. Arguments that are not specifically raised on appeal are considered abandoned and not reviewable, see Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998), and issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996). Because Lawless does not specifically challenge the district court’s determination that his claims are not cognizable under § 1983, he has waived consideration of the court’s conclusion on appeal. We also note that Lawless argues in a conclusory manner that the district court improperly denied his motion to amend the complaint. His perfunctory argument is insufficient to preserve this issue for review on appeal.

Lawless next argues that the district court improperly granted summary judgment without permitting him adequate discovery. This court reviews a district court’s decision concerning discovery matters for an abuse of discretion. Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997). A plaintiff complaining that the district court granted summary judgment without allowing adequate discovery must be able to show that he could have obtained information through discovery that would disclose material facts. Id. Lawless has only made vague assertions that more discovery time would produce additional evidence; therefore, the district court did not abuse its discretion in limiting discovery.

Lastly, Lawless argues that the district court improperly extended the time for the defendants to file an answer to the complaint. Fed.R.Civ.P. 6(b) permits a court to enlarge the time period allowed for filing pleadings, and this court reviews decisions under this rule for an abuse of discretion. Smith on Behalf of Smith v. Severn, 129 F.3d 419, 424 (7th Cir.1997). Lawless has not established that the court’s decision constituted an abuse of discretion.

Accordingly, this court affirms the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.