Buffman v. United States of America et al
Filing
56
ORDER denying 39 Motion for Leave to Amend the Complaint; granting 40 Motion for Appointment of Counsel; denying 41 Motion for Discovery and 49 Motion for Extension of Time and Staying this Matter for 90 days - Signed by Magistrate Judge Mona K. Majzoub. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMMETT BUFFMAN,
Plaintiff,
v.
UNITED STATES OF
AMERICA, et al.,
CIVIL ACTION NO. 13-cv-14024
DISTRICT JUDGE JUDITH E. LEVY
MAGISTRATE JUDGE MONA K. MAJZOUB
Defendants.
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND
COMPLAINT [39], GRANTING PLAINTIFF’S MOTION TO APPOINT COUNSEL [40],
DENYING PLAINTIFF’S MOTION FOR DISCOVERY [41], DENYING PLAINTIFF’S
MOTION FOR EXTENSION OF TIME [49], AND STAYING THIS MATTER FOR
NINETY DAYS
On September 19, 2013, Plaintiff Emmett Buffman, a prisoner at the Federal Correctional
Institution in Milan, Michigan (FCI Milan), filed this claim against Defendants J.A. Terris, James
Zestos, Restituto Pomaloy, Stephen Gidel, and William Malatinsky under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971) and the United States of America under the Federal Tort Claims
Act (FTCA) alleging “Negligence, Abuse of Process, Acts Errors, Omissions, Deliberate
Indifference, and Condoning or Acquiescing to other federal employees (or each other) from doing
the above cited Tort’s.” (sic). (See docket no. 1.) The Court dismissed Plaintiff’s claims against the
individual Defendants on January 6, 2015 for Plaintiff’s failure to exhaust his administrative
remedies. (Docket no. 51.) What remains are Plaintiff’s claims against Defendant United States of
America under the FTCA.
Plaintiff’s claims arise from the medical treatment he received for two boils on his body
located underneath his left arm and in the groin area. (See docket no. 1.) Plaintiff alleges that on
February 13, 2013, he went to the Health Services Department (“HSD”) at FCI Milan and
complained of a boil in his left underarm area and one in his groin area, which were emitting pus
and blood. (Id. at 15.) He claims that Defendant Pomaloy examined him and noticed a small
whitehead on Plaintiff’s right eye. (Id.) Plaintiff explained to Defendant Pomaloy that the
whitehead was a result of his underlying infection. (Id.) Plaintiff asserts that instead of treating
Plaintiff’s “infectious issues,” Defendant Pomaloy sent Plaintiff to the visiting optometrist, who
gave Plaintiff antibiotic eye drops. (Id.) Plaintiff further asserts that he was then sent back to
Defendant Pomaloy, who sent Plaintiff back to his housing unit regardless of his complaint about
the two boils. (Id.) Plaintiff states that his boils persisted, oozed pus constantly, and caused Plaintiff
to suffer anxiety and pain on a level of eight out of ten on a regular basis. (Id.)
Plaintiff alleges that he returned to the HSD on February 20, 2013 to complain of “the same
exact persisting issues.” (Id. at 16.) Plaintiff avers that pus and blood were continuously draining
from the boil in his groin area, and the boil under his arm was swollen, increasing in size, and so
painful that Plaintiff would black out occasionally. (Id.) Plaintiff claims that Defendant Gidel
attempted to lance the boil in the groin area but was unable to remove the toxins because the core
was so hard that nothing came out. (Id.) With regard to the boil under Plaintiff’s arm, Plaintiff
asserts that Defendant Gidel chose to leave it alone and sent Plaintiff back to his unit with no further
action, no second opinion, and no offer to get Plaintiff professional help. (Id.) Plaintiff alleges that
he saw Defendant Gidel again the next day, but he was still unable to remove the core of the boil
in the groin area and continued to ignore the boil under Plaintiff’s arm. (Id.) Plaintiff claims that
his pain was intense, extreme, and elevated to a level nine on a scale of ten. (Id.)
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Plaintiff alleges that on February 22, 2013, he was helpless, unresponsive, and extremely
lethargic. (Id. at 17.) He claims that a case manager called health services immediately on behalf
of Plaintiff due to the pale color of his skin, his pattern of speech, and his failure to respond to
certain questions. (Id.) He further claims that he slowly made his way to the HSD on his own
because he did not have the presence of mind to ask for assistance due to the “toxins coursing
through his veins and brain.” (Id.) Upon Plaintiff’s arrival at the HSD, Plaintiff avers that Dr. Gidel
took one look at the boil in his groin area, made a series of phone calls, and ordered that Plaintiff
be rushed to the hospital by prison staff rather than waiting for an ambulance. (Id. at 18.) Plaintiff
claims that he underwent emergency surgery at the hospital that same day, which resulted in the
extraction of two infectious cores from his boils that were the size of tennis balls. (Id. at 20.)
Plaintiff says that he remained in the hospital for five days due to the staph infection, where he was
administered pain medication and antibiotics. (Id. at 20, 21.) Plaintiff returned to FCI Milan on
February 26, 2013. (Id.)
Plaintiff claims that the progression of his infection was furthered by the “negligence, acts,
errors, omissions, deliberate indifference, abuse of process, and deliberate indifference of Pomaloy,
Gidal, the culture of HSD Staff at FCI Milan, as well as the oversight in the institution, and
oversight by the United States.” (Id. at 21.) Specifically, Plaintiff alleges that Defendant Pomaloy
mischaracterized and “situationally re-framed” Plaintiff’s medical issues by sending him to the
optometrist, and by doing so, he failed to diagnose and treat Plaintiff’s staph infection. (Id. at 18.)
Plaintiff also alleges that Defendant Pomaloy and Gidel’s failure to diagnose and treat his serious
medical condition exacerbated Plaintiff’s harm and led to critical emergency surgery. (Id. at 19-20.)
Plaintiff further alleges that his medical issues could have easily been resolved with antibiotics,
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which the HSD staff failed to prescribe. (Id. at 20.) Plaintiff seeks $1,000,000 in damages. (Id. at
22.)
This matter comes before the Court on four motions: (1) Plaintiff’s Motion for Leave to
Amend Complaint (docket no. 39); (2) Plaintiff’s Motion to Submit This Case to Pro Bono
Committee for Purposes of Potentially Appointing Counsel (docket no. 40); (3) Plaintiff’s Motion
for Discovery Conference, Depositions, and Production of Documents (docket no. 41); and (4)
Plaintiff’s Motion for Extension of Time (docket no. 49).1 Defendant responded to Plaintiff’s
Motions. (Docket nos. 45 and 50.) This action has been referred to the undersigned for all pretrial
purposes. (Docket no. 20.) The Court has reviewed the pleadings and dispenses with oral argument
pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule
pursuant to 28 U.S.C. § 636(b)(1)(A).
I.
Motion for Leave to Amend Complaint [39]
Plaintiff filed a “Motion for Leave to Amend Complaint due to Additional Wantonly
Inflicted Injuries by Miss Moody, Resulting in Vindictive Damages which are Continuing and
Ongoing Even to This Day” on July 16, 2014. (Docket no. 39.) In his Motion, Plaintiff asserts that
he filed his Complaint without mentioning the actions of Unit Manager Moody, who “has been
administering aggravating factors, resulting in aggravating issues which are increasing the damages
through both VINDICTIVE and EXTRAORDINARY DAMAGES due to the ‘Wantonly Inflicted
Injuries’ by Miss Moody.” (Id. ¶¶ 1-2 (emphasis in original).) Plaintiff failed to file a proposed
1
Also pending before the Court is Defendant United States of America’s Motion to
Dismiss, or in the Alternative, for Summary Judgment (docket no. 43), for which the
undersigned has issued a Report and Recommendation contemporaneously with this Opinion and
Order.
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amended complaint with his Motion as required by Eastern District of Michigan Local Rule 15.1.
Additionally, Plaintiff’s Motion does not include a supporting brief as required by E.D. Mich. L.R.
7.1(d). Therefore, the Court will deny Plaintiff’s Motion for Leave to Amend Complaint without
prejudice.
II.
Motion to Appoint Counsel [40]
Plaintiff also filed a “Motion Requesting this Honorable Court to Submit This Case to ‘Pro
Bono Committee’ for Purposes of Potentially Appointing Counsel in the Case at Bar” on July 16,
2014. (Docket no. 40.) Appointment of counsel for prisoners proceeding in forma pauperis is
governed by 28 U.S.C. § 1915, which states that “[t]he court may request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Sixth Circuit has stated:
Appointment of counsel in a civil case is not a constitutional right. It is a privilege
that is justified only by exceptional circumstances. In determining whether
“exceptional circumstances” exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This generally involves a determination
of the complexity of the factual and legal issues involved.
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (internal quotations and citations omitted).
See also Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996) (quoting Charles R. Richey, Prisoner
Litigation in the United States Courts 75 (1995) (“‘Prisoners have no statutory right to counsel in
civil rights cases. Instead, the appointment of counsel is within the court’s discretion.’”).
As Defendant points out, Plaintiff, in his Motion, does not address the complexity of the
factual and legal issues involved in his claims. However, Plaintiff is proceeding pro se on what is,
essentially, a medical malpractice claim under the Federal Tort Claims Act. This type of claim
inherently involves the litigation of complex legal issues. Thus, the Court finds that Plaintiff would
benefit from the assistance of counsel and will refer this case to the Pro Bono Committee. The Court
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will also stay this matter for a period of ninety days to allow time for the Committee to determine
whether pro bono counsel can be found to represent Plaintiff’s interests. If the Committee is unable
to secure counsel for Plaintiff after ninety days, Plaintiff will be required to proceed pro se in this
matter.
III.
Motion for Discovery [41]
On July 16, 2014, Plaintiff also filed a Motion for Discovery Conference, Depositions, and
Production of Documents. (Docket no. 41.) In his Motion, Plaintiff asserts that he is in need of a
discovery conference to set a proper schedule and assure that the parties are on the same timeline
with respect to discovery. (Id. ¶ 1.) Plaintiff also requests that the Court issue orders for Plaintiff’s
“acquisition of” and “initiation of” depositions of employees from the Bureau of Prisons and St.
Joseph Mercy Hospital. (Id. ¶¶ 3-4.) Plaintiff does not offer any information regarding his Motion
for Production of Documents other than that he has “submitted a letter to the Defendant care of
Prisoner Correspondent located at 200 East Liberty Street, Ste. 300, Ann Arbor, MI 48104.” (Id.
at 3.) It is unclear whether Plaintiff has personally noticed any depositions or served a request for
production of documents on Defendant. Seemingly, Plaintiff is asking the Court to do so for him.
As the Court explained in its July 10, 2014 Order denying Plaintiff’s initial Motion for
Discovery, such a request is improper. While Plaintiff may file a Motion to Compel responses to
discovery under Federal Rule of Civil Procedure 37 if Defendant fails to properly respond, he must
first serve Defendant with such discovery requests as provided in Fed. R. Civ. P. 26, 33, and 34.
That is, Plaintiff’s discovery requests must first be directed to Defendant, not filed with the Court.
Plaintiff is also required to notice and conduct depositions as provided under Rules 30 and 31.
Therefore, the Court will deny Plaintiff’s Motion for Discovery Conference, Depositions, and
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Production of Documents. Presumably, if the Pro Bono Committee is able to secure counsel for
Plaintiff, Plaintiff’s counsel will conduct discovery on his behalf. If, after ninety days, the
Committee is unable to obtain counsel for Plaintiff, Plaintiff will be required to conduct his own
discovery in accordance with the Federal Rules of Civil Procedure.
IV.
Motion for Extension of Time [49]
On September 10, 2014, Plaintiff filed a Motion for Extension of Time of ninety days.
(Docket no. 49.) In his Motion, Plaintiff asserts that he has no prior legal experience and that he is
unfamiliar with Michigan medical malpractice law. (Id. ¶ 1.) He further asserts that an extension
would afford him time to obtain counsel and adequately respond to Defendant’s Motion for
Summary Judgment. (Id. ¶ 2.) As discussed above, the Court, on its own initiative, has decided to
stay this matter for a period of ninety days while the Pro Bono Committee attempts to secure counsel
on behalf of Plaintiff. Accordingly, the Court will deny Plaintiff’s Motion for Extension of Time
as moot.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Amend Complaint
[39], Motion for Discovery [41], and Motion for Extension of Time [49] are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel [40] is
GRANTED. The Court will submit this case to the Pro Bono Committee in an effort to secure
counsel for Plaintiff.
IT IS FURTHER ORDERED that this matter is stayed for a period of ninety days to allow
time for the Pro Bono Committee to locate counsel on behalf of Plaintiff. If, however, after ninety
days, the Committee is unable to find pro bono counsel willing to represent Plaintiff’s interests,
Plaintiff will be required to proceed pro se in this matter.
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NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).
Dated: February 12, 2015
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Emmett Buffman and Counsel of
Record on this date.
Dated: February 12,, 2015
s/ Lisa C. Bartlett
Case Manager
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