Johnson v. Wexford Health Services et al

Filing 45

MEMORANDUM OPINION AND ORDER denying without prejudice 26 Motion to Appoint Counsel; denying 28 Motion to Remand and Join; denying 30 Motion to Remand; denying 31 Motion for request of Witness; denying 38 Motion for Appointment of Masters; denying as moot 39 Motion to Strike Surreply; denying 41 Motion for Sanctions and Motion for Additional Sanctions, construed as a Motion for Injunctive Relief. Signed by Judge Paula Xinis on 6/7/2018. (c/m on 6/7/2018 nu, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEVEN M. JOHNSON, #155-865,

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Plaintiff,

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v.

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WEXFORD HEALTH SERVICES, et al.,

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Defendants.

Civil Action No. PX-18-1096

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MEMORANDUM OPINION
AND ORDER

Pending before this Court are Plaintiff’s Motion to Appoint Counsel (ECF No. 26),
Motion to Remand and Join (ECF No. 28), Plaintiff’s second Motion to Remand (ECF No. 30),
Motion for Request of Witness (ECF No. 31), Motion for Appointment of Masters (ECF No. 38),
and Motion for Sanctions and Motion for Additional Sanctions (ECF No. 41). Plaintiff also filed
supplements to the Motion to Appoint Counsel (ECF No. 35), Motion to Remand (ECF No. 36),1
and Motion for Request of Witness (ECF No. 37). For the reasons that follow, Plaintiff’s
Motions shall be denied.
A federal court’s power to appoint counsel under 28 U.S.C. § 1915(e)(1)2 is discretionary
and may be granted where an indigent claimant presents exceptional circumstances. See Cook v.
Bounds, 518 F.2d 779 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264 (5th Cir. 1982). A
claimant has no absolute right to appointment of counsel, and thus bears the burden of

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This document has been construed as a supplement to Plaintiff’s second Motion to Remand and
not a surreply. Therefore, Defendants’ Motion to Strike (ECF No. 39) shall be denied as moot.
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Under § 1915(e)(1), a Court of the United States may request an attorney to represent any
person unable to afford counsel.

demonstrating “exceptional circumstances.” See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir.
1987). Whether such circumstances exist in a particular case hinges on the characteristics of the
claim and the litigant. See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). Where a
colorable claim exists but the litigant has no capacity to present it, counsel should be appointed.
Id.
Plaintiff alleges in his Complaint that Defendants “have conspired to deny his medication
and have continually denied him medical treatment” during his incarceration at Western
Correctional Institution in Cumberland, Maryland. ECF No. 2. In support of his Motion to
Appoint Counsel, Plaintiff indicates that the complexity of the case, the need for discovery, and
the possibility of this case becoming a class action lawsuit warrants appointment of counsel.
ECF Nos. 26 & 35. Upon careful consideration of the motions and previous filings by Plaintiff,
the Court finds that Plaintiff has demonstrated the wherewithal to either articulate the legal and
factual basis of his claims himself or secure meaningful assistance in doing so. Contrary to
Plaintiff’s assertion, the issues pending before the Court are not unduly complicated, and this
case will not be converted to a class action lawsuit. Therefore, no exceptional circumstances
exist to warrant appointment of counsel under §1915(e)(1) at this time, and his Motion to
Appoint Counsel will be denied without prejudice.
In Plaintiff’s Motion to Remand and Join, he asks this Court to remand the case to the
District Court of Maryland for Baltimore City, contending that it is “a malpractice suit” that does
not involve constitutional claims. ECF No. 28. Plaintiff also seeks to join this case with other
cases “presently working their way through [this Court],” and against the same Defendants.
Plaintiff’s Motion shall be denied. As Defendants correctly note, Plaintiff previously asserted
that Defendants in this case “have continually [violated his] Eighth Amendment right by

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continually turning a blind eye to medical [and] denying him much needed health care . . . .”
ECF Nos. 14 & 29. Plaintiff reasserted the same in his second Motion to Remand. See ECF No.
30. Thus, Plaintiff’s claims involve federal questions which remain properly before this Court.
With regard to Plaintiff’s request to join this matter with other cases involving Defendants,
joinder would not be warranted as Plaintiff’s claims are particular to his case.
In Plaintiff’s Motion for Request of Witness, he asks that the Court direct Defendants to
“produce Nurse Practitioner Peggy Mahler” as a witness. ECF Nos. 31 & 37. Plaintiff avers that
Mahler treated him on several occasions and has since resigned from Wexford. Id. Defendants
filed a response in opposition. ECF No. 34. As Defendants correctly state, no scheduling order
has been entered in this case and there has been no order issued by the Court with respect to
discovery; therefore, Defendants are not obligated to engage in discovery at this juncture. See
Local Rule 104.4 (D. Md. 2008). Plaintiff’s Motion for Request of Witness shall be denied.
Next, Plaintiff asks that a master be appointed in this case, pursuant to Fed. R. Civ. P. 53.
Rule 53 states:
Unless a statute provides otherwise, a court may appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be
decided without a jury if appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a difficult computation of
damages; or
(C) address pretrial and posttrial matters that cannot be effectively and timely
addressed by an available district judge or magistrate judge of the district.
Fed. R. Civ. P. 53(a)(1) (emphasis added). As Plaintiff acknowledges, reference to a master is
“the exception and not the rule.” See ECF No. 38; see also Mathews v. Weber, 423 U.S. 261,
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272 (1976); Thomas S. by Brooks v. Flaherty, 902 F.2d 250, 255 (4th Cir. 1990); Baltimore
Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d 456, 473 (D. Md. 2000). As previously noted,
Plaintiff’s claim is that Defendants have conspired to deny his medication and have continually
denied him medical treatment during his incarceration. No exceptional condition exists to
warrant appointment of a special master. Thus, Plaintiff’s Motion for Appointment of Masters
shall be denied.
Finally, Plaintiff filed a Motion for Sanctions and Motion for Additional Sanctions,
asking the Court for injunctive relief directing Wexford to “stop . . . all actions they have taken
(actually inaction).” ECF No. 41. According to Plaintiff, Wexford is refusing to honor its
contract to provide medical services to him and should resume providing such services. Id.
Defendants filed a response in opposition. ECF No. 42.
“A preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553
U.S. 674, 689-90 (2008) (citation omitted). To obtain a preliminary injunction, a movant must
demonstrate that: 1) he is likely to succeed on the merits of his claim; 2) he would suffer
irreparable harm absent preliminary relief; 3) the balance of equities tips in his favor; and 4) an
injunction serves the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). All four elements must be satisfied. The Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010),
reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).
Plaintiff has failed to establish that he is likely to suffer irreparable harm in the absence
of preliminary relief. At a minimum, Plaintiff makes no showing of imminent harm as a result of
Wexford’s alleged cancelation of, or failure to schedule, medical treatment.

Therefore,

Plaintiff’s Motion for Sanctions and Motion for Additional Sanctions, construed as a Motion for

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Injunctive Relief, shall be denied.
Accordingly, it is this 7th day of June, 2018, by the United States District Court for the
District of Maryland, hereby ORDERED that:
1. Plaintiff’s Motion to Appoint Counsel (ECF No. 26) IS DENIED without prejudice;
2. Plaintiff’s Motion to Remand and Join (ECF No. 28) IS DENIED;
3. Plaintiff’s Motion to Remand (ECF No. 30) IS DENIED;
4. Plaintiff’s Motion for Request of Witness (ECF No. 31) IS DENIED;
5. Plaintiff’s Motion for Appointment of Masters (ECF No. 38) IS DENIED;
6. Defendants’ Motion to Strike Surreply (ECF No. 39) IS DENIED as moot;
7. Plaintiff’s Motion for Sanctions and Motion for Additional Sanctions (ECF No. 41),
construed as a Motion for Injunctive Relief, IS DENIED; and
8. The Clerk SHALL MAIL a copy of this Order to Plaintiff and to counsel for
Defendants.

/S/
Paula Xinis
United States District Judge

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