Ditter v. Nebraska Department of Correctional Services et al

Filing 55

MEMORANDUM AND ORDER - Plaintiff's Motion for Appointment of Counsel (Filing No. 38 ) is denied without prejudice. Plaintiff's Motion for an Order to Produce Plaintiff for an Examination by an Outside Oral Surgeon (Filing No. 40 ) is deni ed. Defendants' Motion to Dismiss Dr. Ronald Ogden and Correct Care Solutions, LLC, (Filing No. 43 ) pursuant to Fed. R. Civ. P. 12(b)(1) is granted in part, and these Defendants are dismissed only insofar as Plaintiff's claim for < i>injunctive relief is concerned. The Motion to Dismiss is denied in part as to Plaintiff's forthcoming request for monetary relief against Defendants Ogden and Correct Care Solutions, LLC, to be included in Plaintiff's anticipated Seco nd Amended Complaint. Plaintiff's Motion for Permission to Amend Complaint to Add Nominal, Compensatory, and Punitive Money Damages (Filing No. 50 ) and Plaintiff's Motion for Leave to Amend or File Supplemental Pleadings (Filing No. 54 ) are granted, and Plaintiff shall file a Second Amended Complaint only to add a request for money damages. Plaintiff shall add no additional claims or defendants. Plaintiff's Second Amended Complaint shall be filed on or before October 30 , 2017, and such Complaint shall be considered as supplemental to Plaintiff's Complaint (Filing No. 1 ) and Amended Complaint (Filing No. 14 ). Plaintiff shall not file any additional motions to amend his complaints. Plaintiff's Motion to Compel (Filing No. 52 ) is denied. The Clerk of Court shall term the parties' "objections" (Filing Nos. 48 , [50-2], 53 ), and such objections shall be treated as briefs in opposition. The stay of discovery entered on August 2, 201 7, (Filing No. 47 ) as to Defendants Ogden and Correct Care Solutions, LLC, is lifted. A new Progression Order (Filing No. 36 ) will be issued in due course. The Clerk of Court shall set a pro se case management deadline as follows: October 30, 2017 - Plaintiff's Second Amended Complaint due. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID DITTER,

)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES,
)
SCOTT FRAKES, in his individual & )
official capacity, RANDY T. KOHL, )
MD, in his individual & official
)
capacity, CORRECT CARE
)
SOLUTIONS, RONALD OGDEN,
)
DDS, in his individual & official
)
capacity, and LISA MATHEWS, in
)
her individual & official capacity,
)
)
Defendants.
)
)

4:16CV3159

MEMORANDUM
AND ORDER

Plaintiff, an inmate at the Tecumseh State Correctional Institution (“TSCI”),
brings this 42 U.S.C. § 1983 action against Defendants for allegedly subjecting him to
cruel and unusual punishment by being deliberately indifferent to his serious medical
needs—that is, refusing to replace Plaintiff’s poorly fitting dentures with dental
implants. After initial review, the court allowed Plaintiff’s Eighth and Fourteenth
Amendment claim for prospective injunctive relief (the only type of relief requested)
to proceed against the Nebraska Department of Correctional Services, Correct Care
Solutions, and Scott Frakes, Randy T. Kohl, Ronald Ogden, and Lisa Mathews in their
individual and official capacities. (Filing No. 12; Filing No. 16.)

The parties have filed several miscellaneous motions: Plaintiff’s Motion for
Appointment of Counsel (Filing No. 38); Plaintiff’s Motion for an Order to Produce
Plaintiff for an Examination by an Outside Oral Surgeon (Filing No. 40); Defendants’
Motion to Dismiss Dr. Ronald Ogden and Correct Care Solutions, LLC (Filing No. 43);
Plaintiff’s Motion for Permission to Amend Complaint to Add Nominal, Compensatory,
and Punitive Money Damages (Filing No. 50); Plaintiff’s Motion to Compel (Filing No.
52); and Plaintiff’s Motion for Leave to Amend or File Supplemental Pleadings (Filing
No. 54).
Motion for Appointment of Counsel
As Plaintiff was previously advised (Filing No. 12; Filing No. 20), it is not clear
that Plaintiff and the court will benefit from the appointment of counsel at this point.
Through his filing of multiple pleadings, motions, responses, objections, and letters to
the court, Plaintiff has demonstrated his ability to competently present his claims to the
court and manage his litigation without assistance. Thus, Plaintiff’s request for the
appointment of counsel will once again be denied without prejudice. Phillips v. Jasper
Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006) (there is no constitutional or statutory right
to appointed counsel in civil cases, and 28 U.S.C. § 1915(e) says court “may” appoint
counsel; “relevant criteria for determining whether counsel should be appointed include
the factual complexity of the issues, the ability of the indigent person to investigate the
facts, the existence of conflicting testimony, the ability of the indigent person to present
the claims, and the complexity of the legal arguments”); Trotter v. Lawson, 636 F.
App’x 371, 373 (8th Cir. 2016) (unpublished) (appointed counsel may not be warranted
early in proceedings and when it is not clear that plaintiff has difficulty in obtaining and
presenting admissible evidence and lacks skills to present case to jury); Davis v. Scott,
94 F.3d 444, 447 (8th Cir. 1996) (“Indigent civil litigants do not have a constitutional
or statutory right to appointed counsel. The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of counsel[.]”
(internal citation and quotation marks omitted)).

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Motion to Produce Plaintiff for Examination
Citing Fed. R. Civ. P. 35, Plaintiff moves to “be examined by an outside oral
surgeon to determine the success of dental implant surgery in Plaintiff’s case” and to
have that surgeon prepare a written report setting forth the surgeon’s findings. (Filing
No. 40.) Plaintiff’s motion will be denied because Rule 35 does not grant the court
authority to appoint an expert to examine a party who wants a medical examination of
himself. Brown v. United States, 74 F. App’x 611, 614 (7th Cir. 2003) (unpublished)
(Fed. R. Civ. P. 35 “does not vest the court with authority to appoint an expert to
examine a party wishing an examination of himself”; rather, it allows “the court to order
a party to submit to a physical examination at the request of an opposing party”); Smith
v. Carroll, 602 F. Supp. 2d 521, 526 (D. Del. 2009) (denying plaintiff prisoner’s request
for appointment of expert to evaluate prisoner’s medical condition in § 1983 deliberateindifference case because Fed. R. Civ. P. 35 “does not vest the court with authority to
appoint an expert to examine a party wishing an examination of himself. Instead, under
appropriate circumstances, it allows the court to order a party to submit to a physical
examination at the request of an opposing party. . . . no civil litigant, even an indigent
one, has a legal right to such aid”); Sherrod v. Ryan, No. CV-15-00296, 2016 WL
5219449, at *1 (D. Ariz. Sept. 20, 2016) (same); Foster v. Lombardi, No.
1:12-CV-00116, 2013 WL 3820718, at *1 (E.D. Mo. July 23, 2013) (“Rule 35 does not
vest the court with authority to appoint an expert to examine a party on his own
motion.”); Grace v. Hakala, No. 1:11CV81, 2012 WL 2190902, at *3 (E.D. Mo. June
14, 2012) (same); Cabrera v. Williams, 2007 WL 2682163 at *2 (D. Neb. Sept.7, 2007)
(same).
Motion to Dismiss Dr. Ronald Ogden & Correct Care Solutions, LLC
Defendants Dr. Ronald Ogden and Correct Care Solutions, LLC, (“CCS”) move
(Filing No. 43) to dismiss Plaintiff’s claims for injunctive relief against them under Fed.
R. Civ. P. 12(b)(1) because these Defendants no longer provide services to inmates at
TSCI, where Plaintiff is incarcerated, and therefore do not have the ability or authority
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to provide the injunctive relief Plaintiff is seeking. (Filing No. 44-1, Dec. W. Colton
Cline ¶ 6 (“July 24, 2017 was the last day CCS provided services at TSCI. CCS is no
longer under contract with the State of Nebraska and is no longer providing services at
TSCI.”); Filing No. 44-2, Decl. Ronald Ogden, DDS ¶ 4 (“Because CCS terminated its
contract to provide medical services at TSCI, my contract with CCS to perform dental
services at TSCI also terminated. My last day working at TSCI was July 24, 2017.”).)
Insofar as Plaintiff’s claim for injunctive relief is concerned, I shall grant the
motion to dismiss Defendants Ogden and CCS in part because the actions that would
be required by an injunction would be impossible for these Defendants to execute since
they are no longer employed by TSCI, making Plaintiff’s claim for injunctive relief
moot. Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001) (when actions required
by injunction would be impossible for correctional-center defendants to execute because
plaintiff was moved to another institution, plaintiff’s claims for injunctive relief against
defendants were moot); Beck v. Mo. State High Sch. Activities Ass’n, 18 F.3d 604, 605
(8th Cir. 1994) (per curiam) (noting that a case is moot when circumstances change to
such a degree that “a federal court can no longer grant effective relief”); Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (concluding that claim for injunctive relief
against warden was moot because prisoner was transferred to another prison).
However, these Defendants shall remain parties as to Plaintiff’s forthcoming Second
Amended Complaint, which shall contain a request for monetary damages (see
discussion below).
Motions to Amend Complaint to Add Money Damages
Nine days after Defendants Ogden and CCS moved to dismiss Plaintiff’s claims
for injunctive relief against them, Plaintiff filed a Motion for Permission to Amend
Complaint to Add Nominal, Compensatory, and Punitive Money Damages (Filing No.
50) and, later, a Motion for Leave to Amend or File Supplemental Pleadings (Filing No.
54). Plaintiff requests money damages for the “pain & suffering” he has experienced
from ill-fitting dentures and for damage to his healthy lower front teeth, which
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Defendant Ogden and CCS allegedly “ground off . . . to make Plaintiff[’]s upper denture
fit, knowing that by grinding down healthy teeth it would leave nerves exposed . . . .”
(Filing No. 50 at CM/ECF p. 1.)
In order to amend a pleading to which a responsive pleading is required, Fed. R.
Civ. P. 15(a) requires the opposing party’s written consent or the court’s leave to amend
when a party requests permission to amend more than 21 days after service of a
responsive pleading or filing of a motion under Fed. R. Civ. P. 12(b), (e), or (f),
whichever is earlier. Here, Defendants Frakes, Kohl, Mathews, and NDCS filed an
Answer on June 30, 2017 (Filing No. 34), and Defendants Ogden and CCS filed an
Answer on July 3, 2017 (Filing No. 35). Plaintiff’s motions for leave to amend were
not filed until August 10, 2017 (Filing No. 50), and September 11, 2017 (Filing No. 54).
Therefore, in order to amend his Complaint (Filing No. 1) and Amended Complaint
(Filing No. 14), Plaintiff must receive “the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2).
The Defendants have neither responded to Plaintiff’s motions to amend nor
indicated their consent to Plaintiff’s motions to amend; therefore, Plaintiff may amend
his Complaints only with “the court’s leave,” which should be freely given “when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
A district court can refuse to grant leave to amend a pleading only where
it will result in “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). However,
delay alone is insufficient to deny a motion for leave to amend. See Buder
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 694 (8th
Cir. 1981). Rather, the party opposing the motion must show it will be
unfairly prejudiced. See Mercantile Trust Co. v. Inland Marine Prods.
Corp., 542 F.2d 1010, 1012 (8th Cir. 1976).
Dennis v. Dillard Dep’t Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000).
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Here, discovery has been stayed pending the court’s ruling on Defendant Ogden’s
and CCS’s Motion to Dismiss, so granting the motions to amend will not result in undue
delay; there is no evidence of bad faith or dilatory motive on Plaintiff’s part; Plaintiff
moved to amend to add a request for money damages as soon as he realized (by virtue
of Ogden’s and CCS’s Motion to Dismiss) that his sole claim for injunctive relief would
be moot as against them; Defendants have not objected to Plaintiff’s requested
amendment; and Plaintiff moved to amend within the time allowed by the court’s
Progression Order (Filing No. 36 (“All motions to amend the pleadings shall be filed
on or before September 13, 2017.”)).
Therefore, Plaintiff’s Motion for Permission to Amend Complaint to Add
Nominal, Compensatory, and Punitive Money Damages (Filing No. 50) and Motion for
Leave to Amend or File Supplemental Pleadings (Filing No. 54) are granted, and
Plaintiff shall file a Second Amended Complaint only to add a request for money
damages. Plaintiff shall add no additional claims or defendants.
Motion to Compel
Plaintiff moves (Filing No. 52) to compel Defendants to give “more definite”
answers to interrogatories and to provide certain documents. Plaintiff’s Motion shall
be denied because he has failed to follow Local Rule 7.1(i), which states:
To curtail undue delay in the administration of justice, this court only
considers a discovery motion in which the moving party, in the written
motion, shows that after personal consultation with opposing parties and
sincere attempts to resolve differences, the parties cannot reach an accord.
This showing must also state the date, time, and place of the
communications and the names of all participating persons. “Personal
consultation” means person-to-person conversation, either in person or on
the telephone. An exchange of letters, faxes, voice mail messages, or
emails is also personal consultation for purposes of this rule upon a
showing that person-to-person conversation was attempted by the moving
party and thwarted by the nonmoving party.
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Plaintiff in this case has not shown that he engaged in “personal consultation with
opposing parties,” made “sincere attempts to resolve differences,” and the “parties
cannot reach an accord”—including the “date, time, and place of the communications
and the names of all participating persons.” NECivR 7.1(i). Therefore, Plaintiff’s
Motion to Compel shall be denied. NEGenR1.3(g) (“Unless stated otherwise, parties
who proceed pro se are bound by and must comply with all local and federal procedural
rules.”).
“Objections”
Both parties have filed “objections” to various motions. (Filing No. 48; Filing
No. 50-2; Filing No. 53). Local Civil Rule 7.1 provides in part: “The party opposing a
motion must not file an ‘answer,’ ‘opposition,’ ‘objection,’ or ‘response,’ or any
similarly titled responsive filing. Rather, the party must file a brief that concisely states
the reasons for opposing the motion and cites to supporting authority.” NECivR
7.1(b)(1)(A). Accordingly, the court will treat the parties’ “objections” as briefs in
opposition, and the Clerk of Court will be directed to term the objections as pending
motions.
IT IS ORDERED:
1.
Plaintiff’s Motion for Appointment of Counsel (Filing No. 38) is denied
without prejudice.
2.
Plaintiff’s Motion for an Order to Produce Plaintiff for an Examination by
an Outside Oral Surgeon (Filing No. 40) is denied.
3.
Defendants’ Motion to Dismiss Dr. Ronald Ogden and Correct Care
Solutions, LLC, (Filing No. 43) pursuant to Fed. R. Civ. P. 12(b)(1) is granted in part,
and these Defendants are dismissed only insofar as Plaintiff’s claim for injunctive relief
is concerned. The Motion to Dismiss is denied in part as to Plaintiff’s forthcoming
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request for monetary relief against Defendants Ogden and Correct Care Solutions, LLC,
to be included in Plaintiff’s anticipated Second Amended Complaint.
4.
Plaintiff’s Motion for Permission to Amend Complaint to Add Nominal,
Compensatory, and Punitive Money Damages (Filing No. 50) and Plaintiff’s Motion for
Leave to Amend or File Supplemental Pleadings (Filing No. 54) are granted, and
Plaintiff shall file a Second Amended Complaint only to add a request for money
damages. Plaintiff shall add no additional claims or defendants. Plaintiff’s Second
Amended Complaint shall be filed on or before October 30, 2017, and such Complaint
shall be considered as supplemental to Plaintiff’s Complaint (Filing No. 1) and
Amended Complaint (Filing No. 14). Plaintiff shall not file any additional motions to
amend his complaints.
5.

Plaintiff’s Motion to Compel (Filing No. 52) is denied.

6.
The Clerk of Court shall term the parties’ “objections” (Filing Nos. 48, 502, 53), and such objections shall be treated as briefs in opposition.
7.
The stay of discovery entered on August 2, 2017, (Filing No. 47) as to
Defendants Ogden and Correct Care Solutions, LLC, is lifted. A new Progression Order
(Filing No. 36) will be issued in due course.
8.
The Clerk of Court shall set a pro se case management deadline as follows:
October 30, 2017—Plaintiff’s Second Amended Complaint due.
DATED this 11th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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