Hendricks v. Ohio Department of Rehabilitation and Corrections et al

Filing 40

ORDER signed by Magistrate Judge Terence P Kemp on 8/18/2011. The motion for leave to amend (doc. 28 ) is granted in part and denied in part. The motion to compel (doc. 30 ) and the motion for sanctions (doc. 37 ) are denied. The motion for reduc ed number of copies (doc. 27 ) is granted in part and denied in part. The declaration in support of a TRO and preliminary injunction (# 24 ) is not construed as a motion and shall be removed from the Court's pending motions list. The motion for summary judgment (doc. 12 ) is denied as moot. The motion for extension of time (doc. 31 ) also is denied as moot. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Benjamin Hendricks,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-40

Ohio Department of
Rehabilitation and Correction,
et al.,

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Defendants.

:

:

ORDER
This case is before the Court to consider a number of
pending motions.

All of these motions have been filed by

plaintiff, Benjamin Hendricks, with the exception of a motion for
summary judgment filed by Defendant Michelle Miller (#12).

Mr.

Hendricks has filed a declaration in support of a request for a
temporary restraining order and preliminary injunction (#24), a
“motion for a reduced number of copies” (#27), a “motion for
leave to file an amended complaint with supplemental pleadings
and parties” (#28), a motion to compel discovery (#30), and a
motion for sanctions (#37).

The Court will dispose of these

motions as set forth below.
I.

Background

Mr. Hendricks filed his original complaint asserting claims
of deliberate indifference by various ODRC officials and staff at
the Belmont Correctional Institution to his serious medical needs
under 42 U.S.C. §1983.

The original complaint, construed

broadly, alleged failure to follow specialists’ orders relating
to his gastrointestinal conditions and corresponding dietary
restrictions.

He also asserted state law claims of malpractice,

negligence, and the intentional infliction of emotional distress.

He requested declaratory relief finding that the defendants’
actions are illegal and violate his constitutional rights.
Additionally, Mr. Hendricks requested preliminary and permanent
injunctive relief relating to the implementation of policies and
procedures addressed to the nutritional needs of inmates with
inflammatory bowel disease.

He named eight defendants including

the Ohio Department of Rehabilitation and Correction, the Belmont
Correctional Institution, Dr. John DesMarais, Mona Parks, Theresa
Bell, Michelle Miller, Susan Nesbitt, and Kelly Riehle.

He also

included 25 Jane or John Doe defendants.
On March 23, 2011, defendants Belmont Correctional
Institution and the Ohio Department of Rehabilitation and
Corrections filed a motion to dismiss asserting Eleventh
Amendment immunity.

On March 24, 2011, defendants Michelle

Miller and Kelly Riehle filed motion for summary judgment
asserting that, with respect to his §1983 claim, Mr. Hendricks
had failed to exhaust his remedies and further asserting that his
state law and declaratory judgment claims were without merit. On
April 18, 2011, Mr. Hendricks filed a response to these motions
in which he stated that he was dismissing his claims against
ODRC, the Belmont Correctional Institution, and Kelly Riehle
without prejudice.

In anticipation of Mr. Hendrick’s filing, the

defendants filed a signed notice of stipulation of dismissal
indicating their agreement with Mr. Hendricks’ voluntary
dismissal of these defendants.

As a result, the ODRC, Belmont

Correctional Institution, and Kelly Riehle have been dismissed as
defendants in this case.
On June 6, 2011, Mr. Hendricks filed a motion for leave to
file an amended complaint.

In his proposed amended complaint, he

names as defendants John DesMarais, Mona Parks, Theresa Bell,
Michelle Miller, and Susan Nesbitt.

He proposes to add as

defendants Tobbi Valentine, Martin Akasubo, Nneka Ezeneke, Robert
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Loeloff, Mary Lawrence and 50 John or Jane Does.

Through this

proposed amended complaint, he seeks to include further
allegations relating to his gastrointestinal issues demonstrating
deliberate indifference to his serious medical needs in violation
of the Eighth Amendment.

Several of the proposed allegations

relate to events occurring outside of the Belmont Correctional
Institution and several of the proposed defendants are not
employed at the Belmont Correctional Institution.

Further, Mr.

Hendricks seeks to add a claim against Dr. DesMarais relating to
a change in his seizure medication for an epilepsy condition.

He

also seeks to assert two First Amendment claims - a claim of
retaliation against Ms. Miller arising from the alleged
destruction of his legal materials relating to his medical
conditions and a denial of access to the courts claim against Ms.
Lawrence.
Mr. Hendricks also proposes to include state law claims of
negligence, malpractice, and assault in addition to the
intentional infliction of emotional distress which he now seeks
to assert against Mr. Akasubo.

The proposed amended complaint

seeks declaratory relief as well as money damages.

Further, the

proposed amended complaint no longer asserts an Eighth Amendment
claim against Ms. Miller, making her motion for summary judgment
moot.
Mr. Hendricks also has made several other filings.

With

respect to his claims for injunctive relief asserted in his
original complaint, Mr. Hendricks filed a declaration in support
of his request for a temporary restraining order and a
preliminary injunction.

Defendants have construed this

declaration as an independent motion and have opposed it.
Additionally, Mr. Hendricks has filed a motion for a reduced
number of copies through which he seeks to be excused from
serving a copy of each filing on each defendant or an order from
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the Court directing the defendants to provide him with “free
copies of all papers.”

The defendants have responded to this

motion stating that they have no objection to Mr. Hendricks’
request.

Further, Mr. Hendricks has filed a motion to compel

relating to discovery requests seeking access to his
institutional medical file and his medical files from East Ohio
Regional Hospital and The Ohio State University Medical Center.
The defendants have responded stating that they will make Mr.
Hendricks’ institutional medical file available to him thereby
making the motion to compel moot.

Finally, in his reply in

support of his motion for leave to amend, Mr. Hendricks requests
an award of sanctions against the defendants contending that the
defendants have misrepresented the reasons for his incarceration
have provided false information in their discovery requests, and
have interfered with the discovery process.

As a result, he

seeks the appointment of a special master to oversee discovery in
this case.

The Court will address each of Mr. Hendricks’ motions

in turn.
II.

Motion for Leave to File an Amended Complaint

The Court will turn first to the issues raised by Mr.
Hendrick’s motion for leave to file an amended complaint.
Fed.R.Civ.P. 15(a)(2) states that when a party is required to
seek leave of court in order to file an amended pleading, “[t]he
court should freely give leave when justice so requires."

The

United States Court of Appeals for the Sixth Circuit has spoken
extensively on this standard, relying upon the decisions of the
United States Supreme Court in Foman v. Davis, 371 U.S. 178
(1962) and Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321 (1971), decisions which give substantial meaning to the
"when justice so requires."

In Foman, the Court indicated that

the rule is to be interpreted liberally, and that in the absence
of undue delay, bad faith, or dilatory motive on the part of the
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party proposing an amendment, leave should be granted.

In Zenith

Radio Corp., the Court indicated that mere delay, of itself, is
not a reason to deny leave to amend, but delay coupled with
demonstrable prejudice either to the interests of the opposing
party or of the Court can justify such denial.
Expanding upon these decisions, the Court of Appeals has
noted that:
[i]n determining what constitutes prejudice, the
court considers whether the assertion of the new
claim or defense would: require the opponent to
expend significant additional resources to conduct
discovery and prepare for trial; significantly
delay the resolution of the dispute; or prevent
the plaintiff from bringing a timely action in
another jurisdiction.
Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing
Tokio Marine & Fire Insurance Co. v. Employers Insurance of
Wausau, 786 F.2d 101, 103 (2d Cir. 1986)).

See also Moore v.

City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward,
689 F.2d 637 (6th Cir. 1982).

Stated differently, deciding if

any prejudice to the opposing party is “undue” requires the Court
to focus on, among other things, whether an amendment at any
stage of the litigation would make the case unduly complex and
confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)
(per curiam), and to ask if the defending party would have
conducted the defense in a substantially different manner had the
amendment been tendered previously.

General Electric Co. v.

Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also
Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio 1992).
The Court of Appeals has also identified a number of
additional factors which the District Court must take into
account in determining whether to grant a motion for leave to
file an amended pleading.

They include whether there has been a

repeated failure to cure deficiencies in the pleading, and
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whether the amendment itself would be an exercise in futility.
Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th
Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th
Cir.1989).

The Court may also consider whether the matters

contained in the amended complaint could have been advanced
previously so that the disposition of the case would not have
been disrupted by a later, untimely amendment.

Id.

It is with

these standards in mind that the instant motion to amend will be
decided.
Defendants Miller, Nesbitt, DesMarais, Parks and Bell
oppose the motion for leave to amend on grounds of futility and
prejudice.

First, with respect to futility, they argue that

“respondeat superior does not apply to 1983 claims. ... And
negligence, medical malpractice, and intentional infliction of
emotional distress are not actionable here.”
p. 2 (citations omitted).

See Response (#34),

Additionally, they contend that Mr.

Hendricks “has not given the defendants reasonable guidance on
whether his proposed amended claims have been properly
exhausted....

Therefore, because the defendants cannot tell

whether the proposed amended claims would be futile, [Mr.]
Hendricks should not be allowed to file an amended complaint
without evidence (i.e., claim numbers) indicating that the
proposed amended claims have been exhaustively grieved.”

Id. at

p. 3.
In reply, Mr. Hendricks contends that he is not asserting a
respondeat superior claim and that the state law claims are
proper here because this Court can exercise supplemental
jurisdiction over them.

Additionally, Mr. Hendricks asserts

that, under Jones v. Bock, 549 U.S. 199 (2007), he is not
required to “specially plead or demonstrate exhaustion.”

Despite

this argument, Mr. Hendricks provides a list of grievance numbers
relating to the claims in his proposed amended complaint.
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Defendants’ first argument with respect to futility is that
supervisory personnel cannot be liable under the doctrine of
respondeat superior.

There is no question that allegations of

direct involvement in constitutional deprivations, rather than
attempts to impose liability by virtue of the doctrine of
respondeat superior, are necessary in order to hold an individual
defendant liable under §1983.

Monell v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Although there are other legal claims that can properly be
asserted against a supervisor simply because someone under his or
her supervision may have committed a legal wrong, liability for
constitutional deprivations under 42 U.S.C. §1983 cannot rest on
such a claim.

Consequently, unless the plaintiff's complaint

affirmatively pleads the personal involvement of a defendant in
the allegedly unconstitutional action about which the plaintiff
is complaining, the complaint fails to state a claim against that
defendant and dismissal is warranted.

See also Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

This rule holds true

even if the supervisor has actual knowledge of the constitutional
violation as long as the supervisor did not actually participate
in or encourage the wrongful behavior.

See Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be
held liable under §1983 for failing to respond to grievances
which alert them of unconstitutional actions); see also Stewart
v. Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002) (“supervisory
liability under §1983 cannot attach where the allegation of
liability is based upon a mere failure to act”).
Although the defendants did not identify with specificity
any proposed defendants on which Mr. Hendricks seeks to impose
liability under the doctrine of respondeat superior, the Court’s
review of the proposed amended complaint indicates that Mr.
Hendricks has not alleged any active participation in alleged
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constitutional violations by Mr. Croft or Ms. Bell.

Instead,

these defendants appear to be named solely as a result of their
supervisory positions.

According to the proposed amended

complaint, Mr. Croft is the Chief Inspector for the ODRC and Ms.
Bell is the Dietary Operations Manager for the ODRC.
Aside from his various factual allegations relating only to
Mr. Croft’s role in the grievance process, with respect to a
cause of action against Mr. Croft, Mr. Hendricks states
¶87. The tacit authorization demonstrated by defendant
Croft to defendants Miller and Lawrence actions violated
plaintiff’s rights under the First Amendment to the U.S.
Constitution.
With respect to Ms. Bell, Mr. Hendricks briefly mentions her in
the body of his proposed amended complaint at paragraphs 80-81 in
connection with the return of his grievance appeals.

Because Mr.

Hendricks has failed to allege that Mr. Croft or Ms. Bell
actively engaged in unconstitutional behavior, the proposed
amended complaint fails to state a claim against them.
Consequently, the motion for leave to amend will be denied to the
extent that it seeks to name Mr. Croft and Ms. Bell as
defendants.
Additionally, the defendants contend that the state law
claims Mr. Hendricks proposes to assert are not actionable here.
The Court agrees.

To the extent that Mr. Hendricks seeks to

assert state law claims against certain defendants, under O.R.C.
§9.86 no such claims may be maintained against state officials
unless and until it has been determined that those officials
acted manifestly outside the scope of their employment.

That

determination cannot be made by a federal court, but is reserved
to the Ohio Court of Claims under O.R.C. §2743.02(F).

Griffin v.

Kyle, Case No. 2:10-cv-664, 2011 WL 2885007 (S.D. Ohio July 15,
2011).

As this Court explained in Nuovo v. The Ohio State

University, 726 F.Supp. 2d 829, 848 (S.D. Ohio 2010)(Frost, J.),
-8-

as another judicial officer has recognized, "[t]he
Sixth Circuit has read §§ 9.86 and 2743.02(F) together
to hold that a state employee is immune from state law
claims until the Court of Claims has held that § 9.86
immunity is unavailable." Prior v. Mukasey, No.
3:08CV994, 2008 WL 5076821, at *2 (N.D.Ohio Nov. 21,
2008). This means that, "‘[u]ntil the Ohio Court of
Claims determines that [defendant] are not immune,
there is no cause of action cognizable under Ohio law
over which the district court can assert jurisdiction.'
" Id. (quoting Haynes v. Marshall, 887 F.2d 700, 705
(6th Cir.1989)).
Consequently, the motion for leave to amend will be denied to the
extent that it seeks to assert state law claims of assault,
malpractice, negligence, and the intentional infliction of
emotional distress.
Defendants also contend that Mr. Hendricks has not provided
sufficient information to demonstrate exhaustion.

Under 42

U.S.C. §1997e, as amended by the Prison Litigation Reform Act
(PLRA), a prisoner confined in any jail, prison or other
correctional facility may not bring an action challenging “prison
conditions” under 42 U.S.C. §1983 or any other federal law “until
such administrative remedies as are available are exhausted.” 42
U .S.C. § 1997e(a).

It is undisputed that exhaustion is

mandatory under the PLRA and that unexhausted claims cannot be
brought in court.

Jones v. Bock, 549 U.S. 199, 204-205 (2007)

citing Porter v. Nussle, 534 U.S. 516, 524 (2002).

However, as

Mr. Hendricks points out, the Supreme Court, in Jones, concluded
that failure to exhaust is an affirmative defense under the PLRA,
and inmates are not required specially to plead or demonstrate
exhaustion in their complaints.

Jones, 549 U.S. at 216.

In

light of Mr. Hendricks’ argument, the motion for leave to amend
will not be denied with respect to the remaining claims on
grounds relating to exhaustion.

However, the Court finds that

allowing an amendment to include some of Mr. Hendricks’ remaining
claims would be futile.
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Mr. Hendricks alleges at paragraphs 78-82 of his proposed
amended complaint that his access to the courts was denied or
obstructed by the actions of Ms. Lawrence in failing to follow
the grievance procedures and policies.

In order to state a claim

for denial of access to the courts, Mr. Hendricks must allege
some adverse consequence in a court proceeding.

Harbin-Bey v.

Rutter, 420 F.3d 571, 578 (6th Cir. 2005) (“In order to state a
claim for interference with access to the courts, ... a plaintiff
must show actual injury.”); see also Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999)(en banc).

Adverse consequences

“include having a case dismissed, being unable to file a
complaint, and missing a court-imposed deadline.”

Id.

Mr.

Hendricks does not allege that Ms. Lawrence’s alleged failure to
follow the grievance process caused him injury or precluded his
meaningful access to the Court.

Consequently, Mr. Hendricks has

failed to state a claim upon which relief can be granted for the
denial of access to the courts and the motion for leave to amend
will be denied as to this proposed claim.
Similarly, Mr. Hendricks has failed to state a claim of a
civil conspiracy involving various defendants.

As recently

explained in Anderson v. County of Hamilton, –- F.Supp.2d –-,
2011 WL 900913, *11 (S.D. Ohio March 14, 2011),
To state a claim for conspiracy to violate a right
protected by §1983, plaintiff must allege facts showing
a single plan existed, that the alleged coconspirator
shared in the general conspiratorial objective, and
that an overt act was committed in furtherance of the
conspiracy that caused injury to him.” [Collyer v.
Darling, 98 F.3d 211, 229 (6th Cir.1996), cert. denied,
520 U.S. 1267, 117 S.Ct. 2439, 138 L.Ed.2d 199 (1997)].
Moreover, plaintiff must allege facts showing not only
an agreement by defendants to violate plaintiff's
constitutional rights, but also an actual deprivation
of a constitutional right. Stone v. Holzberger, 807
F.Supp. 1325, 1340 (S.D. Ohio 1992) (Spiegel, J.)
(“plaintiff must allege and prove both a conspiracy and
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an actual deprivation of rights; mere proof of
conspiracy is insufficient to establish a section 1983
claim”). In addition, “conspiracy claims must be pled
with some degree of specificity” and “vague and
conclusory allegations unsupported by material facts
will not be sufficient to state such a claim under
§1983. Accordingly, pleading requirements governing
civil conspiracies are relatively strict.” Fieger v.
Cox, 524 F.3d 770, 776 (6th Cir. 2008) (internal
citations and quotations omitted). Plaintiff must
provide factual support respecting the material
elements of his conspiracy claim. See Moldowan v. City
of Warren, 578 F.3d 351, 395 (6th Cir. 2009).
Mr. Hendricks has made no such allegations here.

His entire

claim consists of one sentence stating that “[t]he actions of
defendants Croft, Miller, and Lawrence demonstrate a civil
conspiracy.”

Consequently, the motion for leave to amend will be

denied to the extent Mr. Hendricks seeks to assert a civil
conspiracy claim.
Beyond their arguments relating to futility, defendants also
raise the issue of prejudice in support of their position that
the motion for leave to amend should be denied.

The primary

focus of their prejudice argument appears to be their belief that
the allegations of the proposed amended complaint do not relate
to the allegations of the original complaint.

In his reply, Mr.

Hendricks explains that the allegations of the amended complaint
arise from the failure to follow specialists’ recommendations
just as the allegations of the original complaint.

A liberal

reading of the proposed amended complaint demonstrates that some
of Mr. Hendricks’ proposed allegations do relate to issues raised
in his original complaint.

However, the Court agrees with

defendants that several of the proposed allegations are beyond
the scope of the original complaint such that a grant of leave to
amend would result in prejudice to them.
As discussed above, the focus of Mr. Hendricks’ original

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complaint was the failure to accommodate his dietary needs by
various ODRC personnel and the staff of the Belmont Correctional
Institution.

In his proposed amended complaint, Mr. Hendricks

alleges the delay or denial of his seizure medication by Dr.
DesMarais and a John Doe defendant and the disregard of his
dietary restrictions and gastrointestinal conditions by various
employees of the Pickaway Correctional Institution or the
Corrections Medical Center including Ms. Valentine, Mr. Loeloff,
Mr. Akasubo, and Ms. Ezeneke.

The addition of a claim relating

to a different medical condition and the addition of several
defendants unconnected to the Belmont Correctional Institution
will undoubtedly delay the resolution of this matter.

This

constitutes sufficient prejudice to the defendants that the
Court, in its discretion, will deny the motion for leave to amend
to the extent that Mr. Hendricks seeks to assert claims against
Ms. Valentine, Mr. Loeloff, Mr. Akasubo, and Ms. Ezeneke.
Further, the motion for leave to amend will be denied to the
extent he seeks to add a claim against Dr. DesMarais and a John
Doe defendant relating to a medical condition separate from that
alleged in the original complaint.
To summarize, the motion for leave to amend will be granted
in part and denied in part as follows.

The motion for leave to

amend will be denied with respect to any claims against Mr. Croft
or Ms. Bell because Mr. Hendricks has not alleged their personal
involvement in any unconstitutional activity.

Further, the

motion will be denied as to the proposed denial of access to the
courts claim and any claims against Ms. Valentine, Mr. Loeloff,
Mr. Akasubo, Ms. Ezeneke, and Ms. Lawrence.

The motion for leave

also will be denied with respect to the proposed civil conspiracy
claim asserted in paragraph 88 and the various state law claims
set forth in paragraphs 89-91.

Additionally, the motion for

leave to amend will be denied as to the proposed claims against
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Dr. DesMarais and a John Doe defendant set forth in paragraphs
48-57, and paragraph 85 relating to Mr. Hendricks’ epilepsy
condition.

On the other hand, the motion for leave to amend will

be granted to the extent that Mr. Hendricks seeks to assert a
First Amendment retaliation claim against Ms. Miller and an
Eighth Amendment claim against Ms. Nesbitt, Dr. DesMarais and Ms.
Parks relating to the alleged disregard of his nutritional
therapy.
III.
A.

Remaining Motions

Mr. Hendricks’ Declaration in Support of his Request for a
TRO and Preliminary Injunction
The Court notes that the prayer for relief in Mr. Hendricks’

original complaint included a request for preliminary and
permanent injunctions directed to policies and practices of the
ODRC and the Belmont Correctional Institution with respect to
inmates with inflammatory bowel disease.

Both of these original

defendants have been dismissed from this case and the proposed
amended complaint does not contain any request for injunctive
relief.

Consequently, the Court views Mr. Hendricks as having

abandoned his request for injunctive relief.
Moreover, the Court does not construe the declaration filed
by Mr. Hendricks as a motion for a TRO and a preliminary
injunction.

The Court is required to weigh four factors in

determining whether a party is entitled to a TRO or a preliminary
injunction under Fed. R. Civ. P. 65(a).

Those factors are: (1)

the likelihood that the party seeking the injunction will succeed
on the merits of the claim; (2) the extent to which the party
seeking the injunction will be injured unless relief is granted,
focusing particularly on the possibility of irreparable injury;
(3) whether the injunction, if issued, will cause substantial
harm to others; and (4) whether issuance of the injunction is in
the public interest.

See Jones v. Caruso, 569 F.3d 258, 270 (6th
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Cir. 2009).

No one factor is dispositive.

Rather, these four

factors must be balanced in determining whether preliminary
injunctive relief should issue.

Certified Restoration Dry

Cleaning Network, L.L.C., v. Tenke Corp., 511 F.3d 535, 542 (6th
Cir. 2007).

“A preliminary injunction is an extraordinary remedy

which should be granted only if the movant carries his or her
burden of proving that circumstances clearly demand it.”
Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d
566, 573 (6th Cir. 2002).

Mr. Hendricks has not addressed any of

these factors in his declaration.

As a result, the Court simply

cannot treat Mr. Hendricks’ declaration as a request for a TRO or
preliminary injunction.
B.

Motion for Reduced Number of Copies

Mr. Hendricks contends that, given his indigent status, he
should not be required to bear the expense of serving copies on
each defendant.

Accordingly, he requests that he be excused from

serving each defendant or that defendants allow him to make free
copies.

It is unclear from Mr. Hendricks’ filing whether his

request was to be excused from providing service copies of the
amended complaint for each newly added defendant in the event
leave was granted or whether he simply seeks to be excused from
providing individual copies of his various filings to each
defendant.
Defendants, construing his motion as requesting only the
latter, have responded that they have no objection to this
request.

Moreover, under the Federal Rules of Civil Procedure,

he need only file a copy with the Court and serve a copy on
defense counsel.

See Fed.R.Civ.P. 5(b).

Consequently, to the

extent that Mr. Hendricks simply seeks to be excused from serving
copies of all his filings on individual defendants, his motion is
granted.
To the extent that Mr. Hendricks seeks free copies,
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however, his motion will be denied.

Although in his brief motion

Mr. Hendricks did not raise this issue in terms of a right of
access to the courts argument, “the Sixth Circuit repeatedly has
held that the constitutional right of access to the courts does
not entitle prisoners to free access to photocopying machinery.”
Nali v. Michigan Dept of Corrections, 2009 WL 3052227, *11 (W.D.
Mich. Sept. 21, 2009) citing Bell-Bey, v. Toombs, No. 93-2405,
1994 WL 105900 (6th Cir. March 28, 1994) (“the law is settled
that an inmate does not enjoy a federal constitutional right to
unlimited free photocopying services”); Hawk v. Vidor, No.
92-2349, 1993 WL 94007, *1 (6th Cir. March 31, 1993) (“the right
to have access to the courts is not interpreted as requiring
unlimited access to photocopiers”); Al-Jabbar v. Dutton, No.
92-5004, 1992 WL 107016, at *1 (“a prisoner's right of access to
the courts does not guarantee him unlimited photocopying at the
state's expense”) (6th Cir. May 19, 1992); Bond v. Dunn, No.
89-6181, 1989 WL 149988, at *1 (6th Cir. Dec.12, 1989) (“The
constitutional right of access to the courts does not require
that prison officials provide inmates free access to photocopying
machinery”); Fazzini v. Gluch, No. 88-2147, 1989 WL 54125, *2
(6th Cir. May 23, 1989) (“The right of access to the courts does
not require that prison officials provide free, unlimited access
to photocopy machines”).
C.

Motion to Compel

In his motion to compel, Mr. Hendricks argues that he has
been unable to make copies of the information contained in his
medical file and that defendants have objected to all of his
discovery requests.

He has attached to his motion a copy of

defendants’ response to his first request for production of
documents which indicates that the defendants provided some of
the requested information to Mr. Hendricks over objection.
Consequently, the focus of Mr. Hendricks’ motion to compel
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appears to be defendants’ failure to provide the requested
medical records.

In response to the motion to compel, defendants

assert that defense counsel arranged for Mr. Hendricks to review
his institutional medical records on July 6, 2011, and that
copies would be made, at Mr. Hendricks’ expense, of any documents
he requested.

In reply, Mr. Hendricks contends that he needs

additional information beyond that contained in his institutional
medical file including his medical records from East Ohio
Regional Hospital and Ohio State University Medical Center.

He

argues further that he may require additional access to his
medical records as the need arises including access to the CMC
MOSS database.

Mr. Hendricks again raises the issue of his

inability to bear the copying costs and also requests the
appointment of counsel to assist him in this action.
In light of Mr. Hendricks’ reply, the Court views the focus
of the motion to compel to be his request for access to his
medical records beyond those contained in his institutional
medical file - including access to records held by non-parties
East Ohio Regional Hospital and Ohio State University Medical
Center.

Defendants have stated in response to this discovery

request that these documents are not within their custody and
control.

Mr. Hendricks has provided no evidence to the contrary.

Under Fed.R.Civ.P. 34(c), a nonparty may be compelled to
produce documents as provided in Fed.R.Civ.P. 45.

Rule 45 sets

forth the procedure for issuance of subpoenas including those
commanding the production of documents.

As a pro se prisoner

proceeding in forma pauperis, Mr. Hendricks is not relieved from
the obligations of Rule 45 to the extent that he is seeking
information in the control of third-parties.

See, e.g., Smith v.

Yarrow, 78 Fed.Appx. 529, 544 (6th Cir. 2003).

Mr. Hendricks

does not argue that he has sought discovery from the Ohio State
University Medical Center or the East Ohio Regional Hospital as
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provided in Rule 45.

Consequently, the motion to compel will be

denied with regard to these discovery requests and will be denied
as moot with respect to his request for access to his
institutional medical file.
To the extent that Mr. Hendricks may need additional time to
review his institutional medical file, he is free to pursue such
access with the defendants, either through a second request for
production or otherwise, through the close of discovery.
Further, under Fed.R.Civ.P. 26(e), the defendants have an
obligation to supplement their response to his requests for
production under certain circumstances.

As a result, the Court

does not view Mr. Hendricks’ motion to compel as currently framed
as relating to the potential need for additional access to his
medical records including access to the CMC MOSS database.
Additionally, with respect to Mr. Hendricks’ statements that
he is unable to bear the costs for copying his medical file,
again the motion to compel will be denied.

There is no

constitutional or statutory requirement that the defendants pay
for Mr. Hendricks’ discovery efforts.

Smith, supra.

Although as

a pro se prisoner in a §1983 suit Mr. Hendricks may pursue any
discovery method allowed under the Federal Rules of Civil
Procedure, he must do so on the same terms as any other civil
litigant.

This includes paying for his own discovery costs.

See

Rittner v. Thrower, Case No. 2:06-cv-471, 2007 WL 756704 (S.D.
Ohio March 8, 2007).
Finally, with respect to Mr. Hendricks’ request for
appointment of counsel,
[a]ppointment 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 circumsntances 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
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factual and legal issues involved.
Id. quoting Lavado v. Keohane, 992 F.2d 60-1, 605-06 (6th Cir.
1993)(internal citations and quotations omitted).

As this Court

has previously stated, this action has not yet progressed to the
point that the Court is able to make such an evaluation of
plaintiff's claims.

Consequently, the motion for appointment of

counsel will be denied.

Mars v. Hanberry, 752 F.2d 254 (6th Cir.

l985).
D.

Request for Sanctions

Mr. Hendricks asserts that the defendants are interfering
with the discovery process to the point where the conduct is
sanctionable.

This conduct, according to Mr. Hendricks, includes

providing false information in response to his discovery
requests.

There is no question that “‘[c]omplete and accurate

responses to discovery are required for the proper functioning of
our system of justice.’” JPMorgan Chase Bank, N.A. v. Neovi,
Inc., 2006 WL 3803152, *5 (S.D. Ohio November 14, 2005) quoting
Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 609 (D. Neb.
2001).

Mr. Hendricks, however, has provided no evidentiary

support for his claim that defendants have failed to provide
accurate responses to his discovery requests.

Consequently, his

request for sanctions, as well as his related request for
appointment of a special master to oversee discovery, will be
denied.
IV.

DISPOSITION

For the reasons stated above, the motion for leave to amend
(#28) is granted in part and denied in part as set forth above.
The Clerk is directed to detach and file the amended complaint
attached to the motion.

The only claims at issue in the amended

complaint are a First Amendment claim for retaliation against
defendant Miller and an Eighth Amendment claim against Ms. Parks,

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Ms. Nesbitt, and Dr. DesMarais relating to the alleged disregard
of plaintiff’s nutritional therapy.
Further, the motion to compel (#30) and the motion for
sanctions (#37) are denied.

The motion for reduced number of

copies (#27) is granted in part and denied in part.

Further, the

declaration in support of a TRO and preliminary injunction (#24)
is not construed as a motion and shall be removed from the
Court’s pending motions list.
(#12) is denied as moot.

The motion for summary judgment

The motion for extension of time (#31)

also is denied as moot.
V.

APPEAL PROCEDURE

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

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