Hampton v. Peeples et al

Filing 100

ORDER denying Plaintiff's 89 Motion for opinion and expert testimony; granting Defendants' 92 Motion for Extension of Time. The Court DIRECTS Plaintiff to provide Defendant any and all expert reports and disclosures required by Fed.R.Ci v.P. 26(a)(2) on or before 9/9/16. Defendant shall provide any and all expert reports and disclosure required by Fed.R.Civ.P. 26 (a)(2) on or before 9/30/16. Additionally, the Court extends the deadlines for the parties to file motions. The parties s hall file any partially or wholly dispositive motions, and Daubert motions, and any other motion to exclude expert testimony on or before 10/15/16. All other deadlines remain in full force and effect; denying Plaintiff's 93 Motion to Compel; d enying Plaintiff's 96 Motion to Appoint Expert; denying Plaintiff's 98 Motion to Appoint Counsel and 99 Motion for Copies of all Expert Depositions of the Defendant's Expert Witnesses. Signed by Magistrate Judge R. Stan Baker on 8/17/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

NORMAN HAMPTON, III,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-104

v.
MATT PEEBLES,
Defendant.

ORDER
This matter is yet again before the Court on numerous motions filed by Plaintiff. For the
reasons and in the manner set forth below, the Court:
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DENIES Plaintiff’s Motion for Opinion and Expert Testimony, (doc. 89), and his
Motion to Appoint Expert Witness, (doc. 96);

•

GRANTS Defendant’s Motion for Extension of Time to Disclose Experts, (doc. 92);

•

DENIES Plaintiff’s Motion to Compel Discovery, (doc. 93);

•

DENIES Plaintiff’s Motion for Copies of All Expert Depositions of the Defendant’s
Expert Witnesses, (doc. 99); and

•

DENIES Plaintiff’s Motion for Appointment of Counsel, (doc. 98).
BACKGROUND

Plaintiff, who is incarcerated at Macon State Prison in Oglethorpe, Georgia, filed this
cause of action pursuant to 42 U.S.C. § 1983. Plaintiff contests certain conditions of his past
confinement at Rogers State Prison in Reidsville, Georgia. (Doc. 1.) I conducted the requisite
frivolity review of Plaintiff’s Complaint on June 8, 2015. (Doc. 19.) In the resulting Report and

Recommendation, I concluded that Plaintiff stated a viable claim for relief against Defendant
Matt Peebles, a former employee at Rogers State Prison. (Id. at p. 7.) Specifically, Plaintiff
plausibly alleged that Defendant Peeples used excessive force against Plaintiff. Id. However, I
recommended that the Court dismiss Plaintiff’s claims against all other Defendants. (Id. at
pp. 4–7.) The Court adopted the Report and Recommendation, over the Objections of Plaintiff.
(Doc. 46.)
After much effort to locate Defendant Peebles, the United States Marshal served him with
the Complaint on March 14, 2016. (Doc. 62.) Discovery in this case is due to expire on
August 17, 2016. (Doc. 64.) On March 30, 2016, the Court instructed the parties that Plaintiff’s
“Expert Witness Report” was due by May 29, 2016 and Defendant’s “Expert Witness Report”
was due by June 28, 2016. (Doc. 64.) The Court granted Plaintiff an extension of his expert
report disclosure deadline to June 30, 2016, with the Defendant’s identification of experts
extended to July 15, 2016. (Doc. 87). All other deadlines remained the same. Id.
Plaintiff has filed numerous Motions throughout this case, the overwhelming majority of
which the Court has denied. Plaintiff has once again filed more motions, which the Court
discusses below.
DISCUSSION
I.

Plaintiff’s Motion for Opinion and Expert Testimony, (Doc. 89), Plaintiff’s Motion
to Appoint Expert Witness, (Doc. 96), and Defendant’s Motion for Extension of
Time, (Doc. 92).
The Court denied Plaintiff’s previous Motions for Expert Medical Examiner and for

Expert Medical Examination on June 9, 2016. (Doc. 87, pp. 3–87.) Therein, the Court explained
that Plaintiff is not entitled to the appointment of an expert in this civil case. Id. Moreover, the
Court detailed that Federal Rule of Civil Procedure 35 does not provide grounds for the Court to

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appoint an expert to examine Plaintiff at Plaintiff’ request. (Id. at p.4.) Additionally, the Court
analyzed Plaintiff’s request under Federal Rule of Evidence 706. (Id. at pp. 5–7.) The Court
held that while Rule 706 provides the Court with authority to appoint an expert, Plaintiff has not
made a sufficient showing for the Court to appoint a medical expert in this case. Id. However,
the Court explained that Plaintiff many retain an expert to serve on his behalf at his own expense.
Thus, the Court extended Plaintiff’s deadline to name an expert witness to June 30, 2016. (Id. at
pp. 6–7.)
In his recent Motion for Expert Testimony filed on June 23, 2016, Plaintiff requests that
the Court subpoena certain witnesses including Dr. Landin Morzolf, a chiropractor. (Doc. 89.)
Plaintiff does not, however, provide any report of this expert or any other information regarding
the substance or basis of any anticipated expert opinion to be provided on his behalf. Id.
Plaintiff also identifies three counselors at Rogers State Prison and a correctional officer, again
providing no report or information regarding any substance or basis of any expert opinions that
he anticipates they will provide on his behalf. Id. Plaintiff also filed a second disclosure
wherein he again identifies the same three counselors and a correctional officer as expert
witnesses. (Doc. 91.) However, he provides no report or any other information regarding their
opinions. Id.
On July 1, 2016, Defendant responded to Plaintiff’s Motion for Expert Testimony and
disclosures. (Doc. 92.) Therein, Defendant contended that Plaintiff’s identification of Dr.
Morzolf and the Rogers State Prison employees failed to comply with Federal Rule of Civil
Procedure 26(a)(2). Specifically, Defendant argued that he “does not even know whether these
individuals have been retained by Plaintiff to provide expert testimony, what the subject matter
of the testimony will be, or any of the underlying facts and opinions about which these experts

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will testify.” (Id. at p. 4.) Thus, Defendant moves that the Court instruct Plaintiff to provide
expert reports or other required information for each expert witness he may call to testify. (Id. at
p. 4.) In the alternative, Defendant requests that the Court strike Plaintiff’s disclosures. Id.
Then, on July 28, 2016, Plaintiff filed his Motion to Appoint Expert Witness. (Doc. 96.)
Therein, he requests, pursuant to Federal Rule of Civil Procedure 706, that the Court appoint a
neutral expert witness to assist the Court in the resolution of this case. Id. Plaintiff points out
that Defendant has named “State of Georgia employed-contract medical professionals” to serve
as expert witnesses on Defendant’s behalf. (Id. at p. 2.) Thus, Plaintiff states that appointing a
chiropractor to serve as a witness is necessary to avoid a one-sided presentation of opinions.
It is not clear what relief Plaintiff requests from the Court with his Motion for Expert
Testimony filed on June 23, 2016. (Doc. 89.) Plaintiff asks that the Court subpoena the
individuals identified in that Motion to any trial, deposition, or hearing in this case. However,
this case is not currently scheduled for trial. Moreover, even if the case was scheduled for trial,
Plaintiff fails to explain why these individuals should be subpoenaed to attend. Thus, the Court
DENIES Plaintiff’s Motion for Expert Testimony, (doc. 89). Should this case be scheduled for
trial or a hearing where Plaintiff anticipates needing the testimony of these witnesses, he may
move for them to be subpoenaed, and the Court will assess the merits of that request at that time.
Moreover, Plaintiff’s July 28, 2016 Motion to Appoint Expert Witness, (doc. 96), fails to
establish grounds for a court appointed expert in this case. The Court laid out the law regarding
the appointment of experts at length in its June 9, 2016 Order. (Doc. 87, pp. 3–87.) The Court
need not rehash that analysis herein. Plaintiff has not pointed to any new facts or other changes
that warrant the appointment of an expert. He contends that the presentation of testimony will be
one-sided because of Defendant’s designation of experts. However, as Defendant points out, his

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identified witnesses are not experts that Defendant retained to testify in this case. Rather, these
witnesses are medical providers that have treated Plaintiff at various facilities. Furthermore, this
lawsuit does not involve claims of negligent or deliberately indifferent medical care. For all of
these reasons, the Court DENIES Plaintiff’s Motion to Appoint an Expert Witness, (doc. 96).
Additionally, as Defendant points out in his Motion for Extension of Time, (doc. 92),
Plaintiff’s Motion for Opinion and Expert Testimony, (doc. 89), and his Response to Order,
(doc. 91), do not comply with Federal Rule of Civil Procedure 26(a)(2). “Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially employed to
provide expert testimony in the case. . . .” Fed. R. Civ. P. 26(a)(2)(B). The expert report is
required to contain certain information, including (a) a statement of all opinions and the basis
and reasons for them, (b) the facts considered by the witness in forming the opinions, (c) exhibits
that will be used to summarize or support the opinions, (d) the witness’s qualifications, including
authored publications from 10 years’ prior, (e) a list of other cases in which the witness has
testified for 4 years’ prior, and (f) the compensation to be paid for the study and testimony in this
case. Id. Even where a witness is not required to provide a written report, the expert disclosure
still must state, (a) the subject matter on which the witness is expected to present testimony, and
(b) a summary of the facts and opinions about which the witness is expected to testify. Fed. R.
Civ P. 26(a)(2)(C).
It is not clear from Plaintiff’s disclosures to date whether he has retained any expert
witness; much less what he anticipates the witnesses he has identified will testify about.
Furthermore, the already-extended deadline for Plaintiff to comply with Rule 26 has now passed.
However, in an abundance of caution, the Court will provide Plaintiff one more opportunity to

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provide expert disclosures in this case. Thus, the Court GRANTS Defendants’ request that
Plaintiff be instructed to provide proper expert disclosures. (Doc. 92, pp. 4–5.) The Court
DIRECTS Plaintiff to provide Defendant any and all expert reports and disclosures required by
Federal Rule of Civil Procedure 26(a)(2) on or before September 9, 2016. If Plaintiff does not
provide a proper disclosure for an expert witness on or before that date, then Plaintiff will not be
permitted to elicit expert testimony or opinions from that witness at any trial, hearing, or other
proceeding in this case.
Given that the Court has provided additional time for Plaintiff to provide expert reports,
the Court GRANTS Defendant’s Motion for Extension of Time. Defendant shall provide any
and all expert reports and disclosures required by Federal Rule of Civil Procedure 26(a)(2) on or
before September 30, 2016. Additionally, the Court extends the deadlines for the parties to file
motions. The parties shall file any partially or wholly dispositive motions, any Daubert motions,
and any other motions to exclude expert testimony on or before October 15, 2016. All other
deadlines remain in full force and effect. 1
II.

Motion to Compel, (Doc. 93), and Motion for Copies of Expert Depositions of the
Defendant’s Witnesses, (Doc. 99).
This Court has previously denied Plaintiff’s Motions seeking the production of

documents. (Doc. 87, pp. 2–3.) In its Orders, the Court has repeatedly advised Plaintiff that he
must use the traditional methods of discovery to obtain facts and information from Defendant
without court intervention. (Id; Doc. 19, p. 10.) Moreover, the Court has explained that Plaintiff
should not file discovery materials with the Court and that Plaintiff must attempt to resolve any
discovery dispute with Defendant’s counsel before coming to the Court. Id.

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Heedless of this

Specifically, the discovery deadline of August 17, 2016 remains in full force an effect. Should the
parties’ expert disclosures reveal the need for additional time to conduct limited discovery, the Court will
entertain a motion to that end.

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advice, Plaintiff has once again moved the Court for production of documents without first
issuing a proper discovery request to Defendant or contacting Defendant’s counsel to resolve the
discovery dispute. (Doc. 93.) Further, as Defendant points out in his response, counsel has
provided or will provide all of the documents Plaintiff requests. (Doc. 95.) Plaintiff also
attempts to file another Motion to Compel under the guise of a Motion for Copies. (Doc. 99.)
However, Plaintiff requests documents (i.e. Defendant’s expert witness reports and disclosures)
that Defendant is now not required to produce to Plaintiff until September 30, 2016. Plaintiff’s
filing makes it even clearer that Plaintiff is not even attempting to issue proper discovery
requests to Defendants first or contact Defendant’s counsel to resolve the discovery dispute. For
all of these reasons, the Court DENIES both Plaintiff’s Motion to Compel, (doc. 93), and
Plaintiff’s Motion for Copies, (doc. 99).
However, the Court finds that all pages of Defendant Peebles’ Separation Notice should
be provided to Plaintiff. Originally, Defendant produced to Plaintiff a copy of Page 2 of this
three-page document which he received from the Georgia Department of Corrections (“GDC”).
However, defense counsel then reviewed additional GDC records and located the other two
pages of this document (Pages 1 and 3). Defendant stated that he intends to produce one of these
additional pages (Page 3) but asks to not produce the other page (Page 1) because it contains
personal identifying information regarding Defendant.

Rather than withhold Page 1 from

production, the court DIRECTS Defendant to provide Page 1 to Plaintiff after first redacting
information that is both irrelevant and confidential. For instance, Defendant may redact his
employee identification number, his personal identifying information, his pay grade and other
salary information, and any contact information such as his phone number or address.

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III.

Motion to Appoint Counsel (Doc. 98)
Plaintiff has repeatedly and unsuccessfully sought the appointment of counsel in this

case. (Docs. 11, 22, 55, 78, 86.) District Judge J. Randall Hall, Magistrate Judge James E.
Graham, and I have consistently rejected his requests. (Docs. 13, 24, 29, 56, 72, 87.) The Court
has explained to Plaintiff that he has no constitutional right to the appointment of counsel and
that his case and surrounding circumstances (including his incarcerated status) do not present
exceptional circumstances warranting appointed counsel. Id. Plaintiff’s instant Motion for
Appointment of counsel simply reiterates his prior arguments which the Court has already
rejected. For these reasons, as well as those already stated by the Court on numerous occasions,
the Court DENIES Plaintiff’s Motion for Appointment of Counsel.
CONCLUSION
For the above reasons, the Court DENIES Plaintiff’s Motion for Opinion and Expert
Testimony, (doc. 89), and his Motion to Appoint Expert Witness, (doc. 96); GRANTS
Defendant’s Motion for Extension of Time to Disclose Experts, (doc. 92); DENIES Plaintiff’s
Motion to Compel Discovery, (doc. 93), and his Motion for Copies, (doc. 99); and DENIES
Plaintiff’s Motion for Appointment of Counsel, (doc. 98).
SO ORDERED, this 17th day of August, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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