SMITH v. INDIANA DEPARTMENT OF CORRECTIONS, CORIZON et al

Filing 132

ENTRY - The plaintiff's motion for discovery extension and for enlargement of time to respond to the defendants' motions for summary judgment (Dkt. 129 ) is GRANTED in part and DENIED in part. The plaintiff's request for additiona l time to take expert depositions is DENIED, as further explained in paragraph 2 of this Entry. The plaintiff shall have additional time, through November 12, 2013, in which to respond to both motions for summary judgment. The plaintiff's mot ion for order to leave prison, for appointment of counsel, or to depose witnesses, requests the Court to order one of three alternative options to assist him in obtaining expert testimony to use in opposition of the defendants' motions for summary judgment (Dkt. 130 ) is DENIED. Signed by Judge Tanya Walton Pratt on 10/11/2013. Copy mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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ERIC SMITH,
Plaintiff,
vs.
CORIZON Other Affiliate CORRECTIONAL
MEDICAL SERVICES OF DELAWARE,
INC.,
BRUCE LEMMON,
A. BAKER,
KIM DON,
MICHAEL MITCHEFF RMD,
Defendants.

Case No. 1:12-cv-00159-TWP-MJD

Entry Concerning Selected Matters
The court, having considered the above action and the matters which are pending, makes
the following rulings:
1.

The plaintiff’s motion for discovery extension and for enlargement of time to

respond to the defendants’ motions for summary judgment (Dkt. 129) is GRANTED in part
and DENIED in part, consistent with the following:
a.

The plaintiff reports that pursuant to Rule 56(d) (formerly Rule 56(f)), he requires

additional time to obtain depositions from expert witnesses. The plaintiff’s request for additional
time to take expert depositions is DENIED, as further explained in paragraph 2 of this Entry.
b.

The plaintiff shall have additional time, through November 12, 2013, in which to

respond to both motions for summary judgment.

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2.

The plaintiff’s motion for order to leave prison, for appointment of counsel, or to

depose witnesses, requests the Court to order one of three alternative options to assist him in
obtaining expert testimony to use in opposition of the defendants’ motions for summary
judgment. The plaintiff’s motion (Dkt. 130) is DENIED for the following reasons:
a.

Plaintiff’s first request is that the Court order the Warden of the New Castle

Correctional Facility to give him a five-day temporary release from prison so that he can work on
his case with fewer restrictions. He alleges that Indiana law permits this, citing Ind. Code § 1110-8-2 (minimum security release programs). This statute does not apply to these circumstances.
Plaintiff’s request is denied as frivolous.
b.

Plaintiff’s request for the appointment of counsel is denied for the time being

because he has shown that he is competent to litigate his case on his own. The fact that he wants
to take depositions of experts does not change this determination because even if counsel were
recruited to assist him at this time, the plaintiff would be responsible for paying for such costs,
which plaintiff is not able to afford. If the case survives summary judgment and proceeds to trial,
plaintiff may renew his request and the Court will remain open to attempting to recruit counsel
for purposes of assisting the plaintiff at trial.
c.

Plaintiff requests that he be allowed to depose several of his former physicians,

but he states that he cannot afford to pay for the depositions, court reporter, witness fees, or costs
of paying the physicians. The Court finds no authority to appoint and pay an expert to assist an
indigent litigant in the preparation of a civil suit for damages. 28 U.S.C. § 1915(d) provides in
part that “[w]itnesses shall attend as in other cases.” It does not authorize the government to pay
or advance the fees and expenses for witnesses. “The right of access to the courts does not extend
to provide witness fees for a witness the prisoner claims to be essential to his in forma pauperis

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case.” McKinney v. U.S., 2009 WL 798583 (D. Colo. Mar. 24, 2009) (citing Johnson v. Hubbard,
698 F.2d 286, 288-90 (6th Cir. 1983)).
IT IS SO ORDERED.

10/11/2013
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
All electronically registered counsel
Eric D. Smith, DOC #112675
New Castle Correctional Facility
Inmate Mail/Parcels
1000 Van Nuys Road
P.O. Box A
New Castle, IN 47362

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