Hurst v. Ohio Department of Rehabilitation and Correction et al
Filing
53
OPINION AND ORDER denying re 44 motions for sanctions, 49 motion for hearing motion to appoint counsel motion to amend. Signed by Magistrate Judge Norah McCann King on 1/24/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK EDWARD HURST,
Plaintiff,
vs.
Civil Action 2:11-cv-1090
Judge Smith
Magistrate Judge King
OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on plaintiff’s Motion to Sanction
State of Ohio Attorney General, Mike Dewine, and Dr. David Weil
(“Plaintiff’s Motion for Sanctions”), Doc. No. 44.
Plaintiff’s Motion for Sanctions.
Defendants oppose
Defendants’ Memorandum in
Opposition to Plaintiff’s Motion for Sanctions, Doc. No. 46.
Plaintiff has not filed a reply.
Also before the Court is plaintiff’s
motion to amend the Complaint, for a discovery hearing, and to appoint
counsel (“Plaintiff’s Motion to Amend”), Doc. No. 49.
Defendants have
not filed a response to Plaintiff’s Motion to Amend.
I.
Background
Plaintiff Mark Hurst, a former state inmate, brings this civil
rights action alleging that he was denied medical care in
contravention of his constitutional rights when allegedly necessary
surgery was cancelled.
The Complaint, Doc. No. 4, names as
defendants, inter alios, Dr. David Weil, the “Collegial Review
Committee” [“the Committee”] and the members of the Committee, who are
otherwise unidentified.
Id. at 2.
Attempted service on the
unidentified members of the Committee was returned unexecuted.
See
Doc. No. 12.
On July 6, 2012, plaintiff filed a motion to compel defendants to
produce the names and addresses of the members of the Committee at the
time plaintiff’s surgery was cancelled.
26, p. 5.
Motion to Compel, Doc. No.
On September 13, 2012, the Court granted in part
plaintiff’s motion to compel and directed defendants to provide to
plaintiff “identifying information regarding the members of the
Collegial Review Committee sufficient to enable plaintiff to effect
service of process and propound discovery on these individuals.”
Opinion and Order, Doc. No. 40, p. 5.
Plaintiff represents that defendant Weil provided the following
response to this Court’s September 13, 2012 order:
Answer: The Collegial Review Process was not fully
implemented at the time of the cancellation of Plaintiffs
[sic] surgery.
Dr. Weil did make the recommendation to
cancel Plaintiff’s surgery and conferred with Andrew Eddy,
M.D. Chief Medical Officer and John Gardner, Bureau of
Medical Services, both located at Central Office, 770 West
Broad Street, Columbus, OH 43229.
Plaintiff’s Motion for Sanctions, p. 2.
On December 3, 2012, the Court granted defendants’ motion summary
judgment on all claims except plaintiff’s § 1983 individual capacity
claim against Dr. Weil.
II.
Opinion and Order, Doc. No. 52, p. 8.
Discussion
A.
Plaintiff’s Motion for Sanctions
Plaintiff’s Motion for Sanctions requests sanctions against
defendant Dr. Weil and his counsel, the Ohio Attorney General, for
allegedly acting in “bad faith” and “perpetrating a fraud” on
plaintiff and this Court in his response to the Court’s September 13,
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2012 order.
Id. at pp. 1-3.
Plaintiff argues that the Ohio
Department of Rehabilitation and Correction has continually changed
the name of the Committee “to stay one step ahead of [l]itigation.”
Id.
Plaintiff also argues that defendant’s statement that the
Committee “was not fully implemented at the time of the cancellation
of Plaintiff’s surgery” is a “fraud.”
Id. at p. 3.
The Court notes, initially, that there is no evidence of fraud or
bad faith on the part of Dr. Weil.
Nevertheless, the Court is not
entirely satisfied with Dr. Weil’s response to the September 13, 2012
order.
In ordering Dr. Weil to provide identifying information
regarding the members of the Committee, the Court noted that “the
exhibits submitted in connection with plaintiff’s Motion to Compel
suggest that the Committee and its members may in fact been involved
in the decision to cancel plaintiff’s surgery.”
Opinion and Order,
Doc. No. 40, pp. 4-5 (citing Motion to Compel, Doc. No. 26, Exhibit P
(“First, your surgery consult was sent to the collegial review
committee (Operations Support Center-formerly known as Central
Office).
This committee had a conference with Dr. Weil on 3/4/11.
A
determination was made to cancel surgery and advise you to sign up for
doctor sick call if pain persists.”), Exhibit N (indicating that
plaintiff’s surgery was cancelled on the same day that the Committee
conducted a conference with Dr. Weil), Exhibit R (indicating that the
Committee consulted with Dr. Weil about the decision to cancel
plaintiff’s surgery)).
In responding to this Court’s order, Dr. Weil
provided identifying information for two individuals with whom he
“conferred” in connection with plaintiff’s scheduled surgery.
Plaintiff’s Motion for Sanctions, p. 2.
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Dr. Weil also stated that the
“Collegial Review Process was not fully implemented at the time”
plaintiff’s surgery was cancelled.
Id.
Dr. Weil did not, however,
represent that the Committee did not exist at the time plaintiff’s
surgery was cancelled or that it had no members.
The Court did not
order Dr. Weil to provide identifying information for those
individuals with whom he “conferred;” the Court ordered Dr. Weil to
provide plaintiff with “identifying information regarding the members
of the Collegial Review Committee sufficient to enable plaintiff to
effect service of process and propound discovery on these
individuals.”
Opinion and Order, Doc. No. 40, p. 5.
Absent
information that either no committee existed or that it had no
members, the Court cannot conclude that Dr. Weil’s response complied
with the September 13, 2012 order.
Rule 37(b) of the Federal Rules of Civil Procedure authorizes the
imposition of sanctions in connection with a party’s failure to obey
an order requiring discovery.
Fed. R. Civ. P. 37(b)(2)(A).
In
determining the appropriate sanction, the United States Court of
Appeals for the Sixth Circuit has directed trial courts to consider
four factors: (1) whether the party's failure to cooperate in
discovery is due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the party's failure to cooperate in
discovery; (3) whether the party was warned that failure to cooperate
could lead to the sanction; and (4) whether less drastic sanctions
were first imposed or considered.
Harmon v. CSX Transp., Inc., 110
F.3d 364, 366-67 (6th Cir. 1997).
In the case presently before the Court, there is no evidence that
Dr. Weil acted bad faith, that plaintiff has been prejudiced by Dr.
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Weil’s failure to comply with this Court’s order, and that Dr. Weil
has been warned that failure to cooperate could lead to sanctions.
Plaintiff’s request for sanctions is therefore DENIED.
Plaintiff is, however, entitled to information identifying the
members of the Collegial Review Committee, if any, at the time
plaintiff’s surgery was cancelled, sufficient to enable plaintiff to
effect service of process and propound discovery on these individuals.
Dr. Weil is therefore ORDERED to provide this information to plaintiff
within fourteen (14) days.
To the extent that Plaintiff’s Motion for Sanctions seeks to
compel additional discovery, see Plaintiff’s Motion for Sanctions, p.
4, it is DENIED.
Plaintiff has not certified that he “has in good
faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action.”
P. 37(a)(1).
B.
Fed. R. Civ.
See also S.D. Ohio Civ. R. 37.2.
Plaintiff’s Motion to Amend
Plaintiff’s Motion to Amend first seeks to amend the Complaint to
add John Gardner and Andrew Eddy, M.D., as defendants.
Motion to Amend, p. 1.
Plaintiff’s
As discussed supra, Dr. Weil provided the
names and addresses of John Gardner and Dr. Eddy in response to the
Court’s September 13, 2012 order.
Plaintiff sought leave to amend the
Complaint on November 1, 2012, five months after the May 31, 2012
deadline to file motions or stipulations for leave to amend the
pleadings or to join new parties.
See Scheduling Order, Doc. No. 14.
In seeking leave, plaintiff did not tender a proposed amended
complaint.
Plaintiff’s request to amend the Complaint is therefore
DENIED without prejudice to renewal should plaintiff tender a proposed
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amended complaint and demonstrate good cause for permitting the
requested amendment.
Plaintiff’s Motion to Amend also seeks a hearing to address
defendant’s “stone walling tactics,” “objections to discovery” and
“denial” of discovery.
Plaintiff’s Motion to Amend, pp. 2-3.
Plaintiff argues that defendant has repeatedly objected to discovery
requests on the grounds that the requested discovery does not exist or
that response to the discovery request would be burdensome.
Id.
Again, it is not apparent to the Court that plaintiff has used all
extrajudicial means of resolving this discovery dispute, see S.D. Ohio
Civ. R. 37.2, and he has not filed a motion to compel.
Plaintiff’s
request for a discovery hearing is therefore DENIED.
Finally, Plaintiff’s Motion to Amend seeks an appointment of
counsel.
Plaintiff’s Motion to Amend, pp. 3-5.
A district court has
discretion to appoint counsel for an indigent civil litigant.
Reneer
v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992) (citations omitted).
However, plaintiff is no longer incarcerated and yet he has not
demonstrated that he has made any attempt to retain counsel.
After
careful consideration of plaintiff’s request for counsel, including
the type and nature of the case, its complexity, and plaintiff’s
ability to prosecute his claim, the Court DENIES that request without
prejudice to renewal.
WHEREUPON, Plaintiff’s Motion for Sanctions, Doc. No. 44, is
DENIED without prejudice to renewal should Dr. Weil fail to fully
comply with this Order.
Defendant Dr. Weil is ORDERED to provide to
plaintiff, within fourteen (14) days, information identifying the
members of the Collegial Review Committee, if any, at the time
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plaintiff’s surgery was cancelled, so as to enable plaintiff to effect
service of process and propound discovery on these individuals.
To
the extent that Plaintiff’s Motion for Sanctions seeks additional
discovery, it is DENIED.
To the extent that Plaintiff’s Motion to Amend, Doc. No. 49,
seeks to amend the Complaint, it is DENIED without prejudice to
renewal should plaintiff tender a proposed amended complaint and
demonstrate good cause for permitting the requested amendment.
To the
extent that Plaintiff’s Motion to Amend seeks the appointment of
counsel, the motion is DENIED without prejudice to renewal.
January 24, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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