Moore v. Hopkins County, Kentucky et al

Filing 73

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge H. Brent Brennenstuhl on 7/18/18; granting 69 Motion for Extension of Time to Complete Discovery: Discovery due by 12/18/2018. Expert Witness (Defendant) due by 10/31/2018. Expert Witness (Plaintiff) due by 9/7/2018. Telephonic Conference set for 1/4/2019 at 9:00 AM before Magistrate Judge H. Brent Brennenstuhl. cc: Counsel, Richard Moore III(pro se) (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00039-JHM
RICHARD EDWARD MOORE, III

PLAINTIFF

VS.
HOPKINS COUNTY, KENTUCKY, et al.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Plaintiff Richard E. Moore, III, proceeding pro se, has filed a motion for extension of
time in which to identify his expert witness (DN 69). Defendants, Advanced Correctional
Healthcare, Inc., Deborah Ash, Matthew Johnston, Jodi Blake, Stephanie Utley, Robin
Ramburger, Cheryl Connelly, and Jaclyn Gibson (collectively the “ACH Defendants”) have filed
a memorandum in opposition (DN 70). Defendants, Joe Blue, Carl Coy, Amber Eagles, Brandon
Lampton, Angela Hopper, Jarrett Backhurst, Victoria Davenport, Tracy Griffith, James Manns,
Chris Melton, and Adam Qualls (collectively the “County Defendants”) have also filed a
memorandum in opposition (DN 71). Moore has filed a reply memorandum (DN 72). For the
reasons set forth below, Moore’s motion (DN 69) is GRANTED.
NATURE OF THE MOTION
On March 17, 2017, Moore, through counsel, filed a complaint asserting causes of action
for civil rights deprivations under 42 U.S.C. § 1983, violation of K.R.S. § 71.040 relating to the
care of prisoners, common-law medical negligence, intentional infliction of emotional distress

and claims of punitive damages (DN 1). With leave of Court (DN 23), Moore, through counsel,
filed an amended complaint adding additional defendants (DN 24).
The scheduling order, filed on June 12, 2017, established deadlines for the completion of
pretrial discovery and the filing of both dispositive and Daubert motions (DN 14). In relevant
part, the scheduling order specified a January 15, 2018 deadline for Moore’s expert witness
disclosure (DN 14 ¶ 2).
On October 31, 2017, Moore’s counsel moved to withdraw as Moore’s attorney due to
irreconcilable differences with Moore (DN 43).

On December 7, 2017, Moore’s counsel

conferred with defense counsel, via email, about extending all of the current deadlines in the
scheduling order in expectation that the Court would grant his motion to withdraw and provide
Moore time to retain a new attorney (DN 72-1 PageID # 604-10). During this email discussion,
counsel for the parties agreed that a telephonic conference should be set up with the Court to
discuss both the pending motion to withdraw and modifications to the scheduling order deadlines
(Id.).
On December 13, 2017, the Court conducted a telephonic conference with counsel for
Moore and Defendants (DN 49). Discussion focused on both the motion to withdraw and
amending the current deadlines in the scheduling order (Id.). The order memorializing the
conference granted counsel’s motion to withdraw; provided Moore with 30 days to have
replacement counsel enter an appearance on his behalf or file a notice indicating he elected to
proceed pro se; and STAYED current deadlines in the scheduling order (Id. PageID # 498-99).
The ordered also scheduled a follow-up telephonic conference (Id. PageID # 499) that was later
rescheduled to January 22, 2018 (DN 48).

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On January 22, 2018, Moore filed a motion requesting an additional 30 days to retain
counsel because his medical circumstances had prevented him for being able to do so (DN 54).
On that same day, the Court conducted a telephonic conference with Moore and defense counsel
participating (DN 55). Following discussion, the Court issued an order granting Moore’s request
for an additional 30 days to retain counsel (Id.). Additionally, the order amended “current
deadlines” in the scheduling order (Id. PageID # 511-13). Specifically, new deadlines were
established for Defendants’ expert witness disclosures, completion of all pretrial discovery, and
the filing of all dispositive and Daubert motions (Id.).
On March 5, 2018, Moore filed a notice indicating he would proceed pro se until further
notice (DN 57). On March 22, 2018, the Court conducted a telephonic conference with Moore
and defense counsel participating (DN 59). Discussion focused on Moore’s unavailability for his
deposition and the resulting delay in completing pretrial discovery (Id.). The Court ordered
Moore’s deposition be conducted on April 23, 2018, and extended the deadlines for completing
all pretrial discovery and filing dispositive and Daubert motions (Id.).
Three days later, on March 26, 2018, Defendants’ jointly moved to extend their current
expert disclosure deadline of May 1, 2018 to June 29, 2018 (DN 60). In an order entered on
April 5, 2018, the Court granted Defendants’ motion and extended their expert disclosure
deadline (DN 61).
On April 24, 2018, Moore and Defendants filed a joint motion to stay the current
deadlines in the scheduling order (DN 62). The motion explained that Moore’s deposition could
not be taken on April 23, 2018, because he was hospitalized on April 19, 2018 with doublepneumonia and sepsis and he may remain in the hospital for at least two weeks (Id.). The motion
further explained that the delay in taking Moore’s deposition would impact the parties’ ability to

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comply with the current scheduling order deadlines (Id.). In an order entered May 1, 2018, the
Court granted the joint motion and stayed all current scheduling order deadlines (DN 63).
Upon request by Defendants, on June 6, 2018, the Court conducted a telephonic
conference with Moore and defense counsel participating (DN 68). Following discussions with
Moore and defense counsel, the Court directed Moore to file by June 13, 2018, a motion to
amend the scheduling order deadline for his disclosure of an expert witness (Id.). Additionally,
the Court ordered that Moore’s deposition shall be conducted on August 16, 2018 (Id.).
Moore filed his motion for extension of time on June 15, 2018 (DN 69). Moore blames
health problems and his misunderstanding, regarding extensions to the scheduling order
deadlines, for his failure to previously seek an extension of his expert witness disclosure deadline
(DN 69). Citing Fed. R. Civ. P. 6(b) and five factors identified by the Sixth Circuit, both sets of
Defendants argue that Moore’s motion should be denied because he has not demonstrated his
failure to timely move for an extension was due to “excusable neglect” (DN 70, 71 citing
Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006) and Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). In his reply, Moore provides more
information about his hospitalizations and asserts that he has satisfied the Rule 6(b) “excusable
neglect” standard (DN 72).
DISCUSSION
Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure applies when a party is moving a
court to extend an expired filing deadline. See Nafziger v. McDermott Intern., Inc. 467 F.3d
514, 522 (6th Cir. 2006). However, Moore is not seeking an extension of time in which to file
his Rule 26(a)(2) expert disclosure with the Court. See Fed. R. Civ. P. 5(d)(1) (directing that
Rule 26(a)(2) expert disclosures “must not be filed” with the court except in certain limited

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circumstances that are not present here). Further, Defendants apparently overlooked the order
directing that Moore “shall file a motion to amend scheduling order regarding disclosure of
expert witnesses pursuant to Rule 16(b)(4)” (DN 68). In sum, Defendants’ reliance on Rule
6(b)(1)(B) and related case law is misplaced.
Consistent with the June 15, 2018 order (DN 68), the Court will construe Moore’s pro se
filing as a motion, under Rule 16(b)(4), to amend or modify the scheduling order. Rule 16(b)(4)
permits modification of scheduling orders “for good cause and with consent of the judge.”
The December 2017 order stayed all current deadlines in the scheduling order while
Moore attempted to locate replacement counsel (DN 49 PageID # 498-99). Moore’s expert
witness disclosure deadline was one of those current deadlines stayed by the order. However,
during the telephonic conference on January 22, 2018, the Court mistakenly believed that
Moore’s deadline had expired. As a result, the January 2018 order modified the other current
deadlines but not Moore’s deadline for disclosure of expert witnesses (see DN 55). The Court
discovered this oversight while reviewing the record in connection with Moore’s motion. The
Court also noted that all of the other scheduling order deadlines stayed by the December 2017
order and modified by subsequent orders (DN 55, 59, 61) are presently stayed (DN 63).
Moore indicates he received inpatient emotional/psychological care at the Moorehead
Inspirational Center from December 15, 2017 through January 17, 2018 (DN 72 PageID # 600).
On January 17, 2018, Moore was hospitalized for his heart condition and underwent a heart
catheterization. Thus, from the time his counsel was allowed to withdraw on December 13, 2017
to the January 22, 2018 telephonic conference Moore’s health prevented him from actively
locating replacement counsel and/or prosecuting his case. Additionally, Moore indicates he was
again hospitalized for serious health conditions in March and April 2018 (Id.). Thus, two

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additional health events impaired Moore’s ability to locate replacement counsel and/or actively
prosecute his case. Moore has been attempting to prosecute his case since his release from the
hospital in late April (see e.g., DN 64, 65, 66).
The Court concludes that good cause exists to modify the scheduling order in light of the
Court’s own misunderstanding of Moore’s expert witness disclosure deadline, his health related
circumstance, and his pro se status.

The Court also concludes any potential prejudice to

Defendants will be adequately addressed by modifying the deadlines for Defendants’ disclosure
of expert witnesses, the completion of all pretrial discovery, and the filing of dispositive and
Daubert motions.
ORDER
IT IS HEREBY ORDERED that Moore’s motion (DN 69) is GRANTED.
IT IS FURTHER ORDERED that the current deadlines in the scheduling order are
modified as follows:
(1) No later than September 7, 2018, Plaintiff shall disclose the identity of any person
who may be used at trial to provide expert testimony under Fed. R. Civ. P. 26(a)(2)(A) and shall
submit written reports from any expert witnesses who are retained or specially employed as
required by Fed. R. Civ. P. 26(a)(2)(B).
(2) No later than October 31, 2018, counsel for Defendants shall disclose the identity of
any person who may be used at trial to provide expert testimony under Fed. R. Civ. P.
26(a)(2)(A) and shall submit written reports from any expert witnesses who are retained or
specially employed as required by Fed. R. Civ. P. 26(a)(2)(B).
(3) No later than December 18, 2018, the parties shall complete all pretrial discovery of
any kind, including discovery depositions of all expert witnesses. All written discovery requests

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shall be submitted to the opposing parties so that the due date is in advance of the discovery
deadline. The limitations placed on discovery by the parties as set out in their joint report are
hereby adopted by the Court. Motions pertaining to unresolved discovery and scheduling
disputes may not be filed without first having a joint telephonic conference with the
Magistrate Judge arranged through his courtroom deputy, Kelly Lovell, at 270-393-2507,
or [e-mail]. Any agreed amendments to the Scheduling Order
shall be submitted to the Court in the form of an agreed order. ALL MOTIONS
PERTAINING TO DISCOVERY SHALL BE FILED NO LATER THAN FIFTEEN (15)
DAYS AFTER THE CLOSE OF ALL DISCOVERY.
Non-waiver of attorney-client privilege or work-product protection. Pursuant to Fed.
R. Evid. 502(d), neither the attorney-client privilege nor work-product protection are waived by
disclosure connected with this litigation. Further, the disclosure in this action shall not operate
as a waiver in any other federal or state proceeding. As defined in Fed. R. Evid. 502(g),
“attorney-client privilege” means the protection that applicable law provides for confidential
attorney-client communications; and “workproduct protection” means the protection that
applicable law provides for tangible material (or its intangible equivalent) prepared in
anticipation of litigation or for trial.
Unless otherwise agreed to by counsel, the use of all deposition testimony shall be
governed by Fed. R. Civ. P. 32, and all depositions taken for trial purposes only shall be
completed not later than 60 days prior to trial.
(4) No later than January 18, 2019, counsel for the parties shall file all dispositive
motions. This same date is the filing deadline for motions related to the admissibility of expert
testimony pursuant to Federal Rule of Evidence 702 (Daubert motions).

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(5) The telephonic status conference scheduled for June 26, 2018, is REMANDED from
the Court’s docket and RESCHEDULED to be conducted on January 4, 2019, at 9:00 am,
CST. The Court will initiate the call.

July 18, 2018

Copies to:

Richard E. Moore, III, pro se
Counsel of Record

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