Massey v. Branham et al

Filing 90

ORDER denying 83 MOTION to Amend/Correct; denying 84 MOTION to Compel; and denying 89 MOTION for Physical and Mental Examinations. Signed by Magistrate Judge Shiva V Hodges on 8/26/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John K. Massey Jr.,
Plaintiff,
vs.
J.T. Branham; York County; NE
Schifferle; and B. Schettler,
Defendants.

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C/A No.: 0:14-1876-TLW-SVH

ORDER

Plaintiff John K. Massey Jr., proceeding pro se, originally filed this matter in the
Court of Common Pleas for York County, South Carolina, [ECF No. 1-1], and it was
removed to this court on May 9, 2014. [ECF No. 1]. In his amended complaint, Plaintiff
sues J.T. Branham, York County, NE Schifferle, and B. Schettler (“Defendants”) for
alleged violations of his constitutional rights during his incarceration at the Moss Justice
Detention Center. This matter comes before the court on the following motions by
Plaintiff: (1) motion to amend [ECF No. 83]; (2) motion to compel [ECF No. 84]; and
(3) motion for a physical and mental examination [ECF No. 89].
I.

Motion to Amend
In his motion to amend, Plaintiff seeks to add additional defendants. [ECF No.

83]. He states that he needs to add Bruce Bryant and Chief Martin as defendants because
they are high level officials who have control of the records, and only defendants can be
required to produce documents. Id. at 2. “[L]eave [to amend] shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). “A motion to amend should be denied only

when the amendment would be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be futile.” HCMF Corp. v.
Allen, 238 F.3d 273, 276 (4th Cir. 2001) (internal quotation marks omitted).
Adding a defendant to obtain discovery is not a good faith basis for amendment. In
addition, to the extent Plaintiff attempts to bring claims against Bryant and Martin based
on respondeat superior, such claims are futile, as they do not give rise to a § 1983 claim.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691‒94 (1978). Moreover, “[b]ecause
vicarious liability is inapplicable to [] § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. 662, 676 (2009). Plaintiff provides insufficient
factual allegations to demonstrate that Bryant and Martin were aware of, or deliberately
indifferent to, any constitutional risk of injury to Plaintiff. See Carter v. Morris, 164 F.3d
215, 221 (4th Cir. 1999) (outlining the requirements to hold a supervisor liable for
constitutional injuries inflicted by their subordinates). Therefore, the undersigned denies
Plaintiff’s motion to amend.
II.

Motion to Compel
Plaintiff filed a motion to compel on August 3, 2015, alleging that Defendants had

not responded to his discovery requests. [ECF No. 84]. On August 17, 2015, Defendants
filed a response to the motion to compel and a request for an extension to the scheduling
order. [ECF Nos. 85, 86]. Counsel for Defendants indicated in the response that he was
compiling and reviewing voluminous documents requested by Plaintiff and needed
additional time to complete the request. [ECF No. 85]. Upon good cause shown, the

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undersigned granted Defendants’ request for an extension. Therefore, Plaintiff’s motion
to compel is denied as moot with leave to refile if Defendants fail to produce responses to
the discovery requests.
III.

Motion for Physical and Mental Examination
Plaintiff filed a motion pursuant to Fed. R. Civ. P. 35(a)(1), which allows courts to

“order a party whose mental or physical condition—including blood group—is in
controversy to submit to a physical or mental examination by a suitably licensed or
certified examiner. The court has the same authority to order a party to produce for
examination a person who is in its custody or under its legal control.” Plaintiff argues the
rule allows a court to order a prison to produce a prisoner for examination at the
prisoner’s request. However, this position has been routinely rejected. “Rule 35 does not
vest the court with authority to appoint an expert to examine a party wishing an
examination of himself.” Brown v. United States, 74 F. App’x 611, 614 (7th Cir. 2003),
cert. denied, 540 U.S. 1132 (2004); see also Johnson v. Bumgardner, No. 5:12-cv-1914JMC-KDW, 2013 WL 1187016 at *2 (D.S.C. March 20, 2013); Ashford v. Gordon, No.
0:13-1113-JFA-PJG, 2013 WL 5495280 at *1 (D.S.C. Oct. 2, 2013); “Rather, under
appropriate circumstances, it would allow the court to order a party to submit to a
physical examination at the request of an opposing party.” Brown, 74 F. App’x at 164.
Plaintiff’s motion for a physical and mental examination [ECF No. 89] is denied.
IV.

Conclusion
For the foregoing reasons, the undersigned denies the following motions by

Plaintiff: (1) motion to amend [ECF No. 83]; (2) motion to compel [ECF No. 84]; and (3)

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motion for a physical and mental examination [ECF No. 89].
IT IS SO ORDERED.

August 26, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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