Bassham v. Dietz et al

Filing 77

ORDER ON PENDING MOTIONS AND EXTENDING DEADLINE FOR AMENDING PLEADINGS. The deadline for filing motions to amend pleadings or join parties is extended to April 29, 2017. Signed by Judge James D. Todd on 3/29/17. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JAMES EDWARD BASSHAM
Plaintiff,
VS.
BERNHARD DIETZ, ET AL.
Defendants.

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No. 15-1272-JDT-egb

ORDER ON PENDING MOTIONS AND
EXTENDING DEADLINE FOR AMENDING PLEADINGS

On November 9, 2015, the pro se Plaintiff, James Edward Bassham, filed a complaint
pursuant to 42 U.S.C. § 1983 while he was an inmate at the Hardeman County Correctional Facility
(“HCCF”) in Whiteville Tennessee.1 (ECF No. 1.) The Court issued an order on December 11,
2015, dismissing portions of the complaint sua sponte and directing that process be served on the
remaining Defendants: Kenneth Beard, a dentist at the HCCF; Dr. Bernhard Dietz, the HCCF
Medical Director; Centurion Inc. (“Centurion”); and the Corrections Corporation of America
(“CCA”).2 An answer was filed on behalf of all of the Defendants except for Centurion (ECF No.
20), and a scheduling order was entered on February 22, 2016 (ECF No. 21). In accordance with
that scheduling order, the deadline for completing discovery was July 18, 2016. (Id. at 1.)

1

Plaintiff was released from prison on or about September 12, 2016. (See ECF No. 69 at
1; ECF No. 73.)
2

CCA is now known as CoreCivic. See www.cca.com/insidecca/correctionscorporation-of-America-rebrands-as-corecivic.

On August 1, 2016, Plaintiff filed a motion for appointment of counsel. (ECF No. 48.)
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person
unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . . . .”).
Appointment of counsel is “a privilege that is justified only by exceptional circumstances.” Lavado,
992 F.2d at 606 (internal quotation marks and citation omitted). “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.” Id. at 606 (internal quotation marks and citations omitted).
Appointment of counsel is not appropriate when a pro se litigant’s claims are frivolous or when his
chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.
1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009) (same).
Plaintiff has not demonstrated that the Court should exercise its discretion to appoint counsel.
The fact that Plaintiff is pro se does not serve to distinguish this case from the many other cases filed
by pro se litigants who are not trained attorneys. Therefore, the motion for appointment of counsel
is DENIED.
The process issued for Centurion was returned unexecuted by the U.S. Marshal on January
12, 2016. (ECF No. 12.) However, Plaintiff subsequently filed a motion to voluntarily dismiss any
claims against Centurion. (ECF No. 25.) That motion is GRANTED.

On May 2, 2016, Plaintiff filed a motion to amend the complaint (ECF No. 23) accompanied
by a proposed amendment (ECF No. 23-1). The Defendants filed a response in opposition to the
motion. (ECF No. 26.) Defendants’ objection is based on the fact that Plaintiff’s motion did not
fully state the additional claims and factual allegations that are set out in the proposed amendment.
However, while the motion to amend may not have accurately described the amendment, the
attached amendment speaks for itself. Therefore, it cannot be said that Plaintiff misled either the
Defendants or the Court concerning his intent. Rule 15(a) of the Federal Rules of Civil Procedure
provides that the Court “should freely give leave” to amend “when justice so requires.”
Nevertheless, in a reply to Defendants’ response in opposition, Plaintiff states that he wishes
to withdraw the motion and proposed amendment in order that he might re-file both to more fully
set forth his claims and include additional information. (ECF No. 29 at 3.) On May 16, 2016,
Plaintiff also filed a motion to extend the deadline for amending pleadings. (ECF No. 31.)
Defendants have not responded to that motion.
Accordingly, Plaintiff’s motion to amend the complaint (ECF No. 23) is DENIED as moot.
The motion to extend the deadline for amending pleadings is GRANTED.
Plaintiff filed a motion to compel discovery on April 18, 2016 (ECF No. 24); he filed a
similar motion seeking to compel production of the same information on June 6, 2016 (ECF No. 34).
Plaintiff first sought production of “any and all corporate policies of [CCA], regarding medical
procedures, including but not limited to the writing of prescription medications.” (ECF No. 34-2
at 1, Req. for Disc. No. 2.) Defendants responded to that request by producing an Access to Health
Care policy and advising that other policies could be found in the HCCF Inmate Handbook, a copy
of which was in Plaintiff’s possession. (Id.) However, Defendants also objected “to the disclosure

of any other medical policies as they are confidential and are not to be disclosed to inmates for
institutional safety and security reasons.” (Id.)
In the motion to compel, Plaintiff states that Defendants provided only a Tennessee
Department of Correction (“TDOC”) policy but did not provide any CCA policies as he requested.
In response, Defendants state that because CCA houses TDOC inmates, the TDOC policy was
adopted and implemented by CCA. Defendants also point out that the TDOC policy that was
provided specifically states that it applies to privately managed facilities. (See ECF No. 27-1 at 1.)
However, Defendants do not state that there are no other CCA policies that would be responsive to
Plaintiff’s request. Defendants also fail to sufficiently explain their broad assertion that any other
medical policies should be confidential for “safety and security reasons.” Therefore, the Court will
require further response to this request for production.
Plaintiff also sought production of copies of any and all employment contracts entered into
between Defendants Dietz and CCA and between Defendants Beard and CCA. (ECF No. 34-2 at
2-3, Req. for Disc. Nos. 3 & 4.) In response to these requests, Defendants objected that the
“information is entirely irrelevant to the case at hand, it is outside the scope of discoverable
evidence, and it is not reasonably calculated to lead to the discovery of admissible evidence.” (Id.)
Plaintiff states in his motion to compel that the information is needed “to establish motive
behind Defendants’ unconstitutional conduct.” (ECF No. 24 at 1-2.) However, as the Defendants
have pointed out, the complaint contains no allegations that the medical and/or dental care provided
to Plaintiff by Defendants Beard and Dietz was motivated or affected in any way by the terms of
their employment contracts. Because Plaintiff has not sufficiently explained how the employment
contracts are relevant to Defendants’ motives, the Court finds the Defendants’ objections are proper.

The motions to compel discovery are GRANTED with regard to Plaintiff’s Request for
Discovery No. 2 but are DENIED with respect to Plaintiff’s requests for production of Defendants’
employment contracts with CCA.
On July 13, 2016, Plaintiff filed a motion for leave to submit additional interrogatories to the
Defendants, pursuant to Rule 32(a)(1) of the Federal Rules of Civil Procedure. (ECF No. 41.) He
filed an amended motion that included his additional proposed interrogatories on August 5, 2016.
(ECF No. 50.) In their response in opposition to the motion, Defendants state that Plaintiff has
already served thirty-seven interrogatories on Defendant Dietz and thirty interrogatories on
Defendant Beard. (ECF No. 58 at 2.) Rule 32 allows a party to serve only twenty-five written
interrogatories on any other party without leave of Court.3 The Court must deny leave and limit
discovery if it “is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive;” “the party seeking discovery
has had ample opportunity to obtain the information by discovery in the action;” or “the proposed
discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). Local Rule
26.1 also requires “a statement as to the necessity for additional discovery, its relevance or
likelihood to lead to admissible evidence, and the fact that it cannot be obtained from other sources.”
Defendants oppose the additional interrogatories requested by Plaintiff, first asserting that
Plaintiff failed to consult with counsel prior to filing his motion, as required by Local Rule 7.2(a).
However, Plaintiff disputes this assertion and states that he does not know why the Defendants
attached to their response a different letter instead of the signed and notarized letter of consultation
he actually sent.

3

Although Plaintiff did not seek leave of Court to file the previous additional
interrogatories, Defendants answered those interrogatories. (Id.)

Defendants also contend Plaintiff has not set forth sufficient grounds regarding the necessity
for the additional interrogatories, arguing that his statements in that regard are conclusory and
speculative. Plaintiff asserts that his statements regarding necessity are sufficient because he asserts
that the information requested is needed to substantiate particular facts in his complaint. However,
such a broad statement of necessity is not enough. The general purpose of all discovery is to
substantiate the facts of the case. Particularly with regard to a request to serve more than the twentyfive interrogatories allowed by Rule 33(a)(1), a party must explain why additional discovery is
needed, i.e., why he chose not to seek the information in prior interrogatories or in other types of
discovery such as document requests or requests for admission. Or, if the party did seek the same
or similar information in other types of discovery requests, he must explain why the interrogatories
should not be deemed cumulative or duplicative.4
Notwithstanding Plaintiff’s arguments, the Court finds he has not demonstrated that the
additional interrogatories are necessary in this case. Therefore, the motions for leave to serve the
additional discovery are DENIED.
Plaintiff filed a motion on August 8, 2016, asking the Court to order the Defendants to pay
for medical treatment that he received at Vanderbilt University Medical Center while he was
incarcerated at the HCCF. (ECF No. 52.) That motion is DENIED. Defendants state there are
procedures that outside medical providers must follow in order to have an inmate’s medical bills
paid and that there is an administrative review procedure if payment is denied. Furthermore, any
order for the Defendants to pay such a bill at this time would not be appropriate because it has not
been established that Plaintiff is entitled to relief.

4

Neither Plaintiff nor the Defendants have attached Plaintiff’s prior discovery requests
and response. Therefore, the Court cannot determine whether the proposed interrogatories
would be cumulative or duplicative.

Before the Defendants filed their motion for summary judgment, they sought and received
leave to file the motion under seal due to privacy concerns because of the medical information
contained therein. (ECF Nos. 54 & 55.) This is standard procedure and is necessary under
applicable privacy laws. Plaintiff then filed an objection to the sealing of the motion, stating
“individuals who may be following this instant case, may need to see the documents being
presented, which may help them and others to fight against those who are severely and deliberately
indifferent to serious medical concerns.” (ECF No. 60.) He requests that a redacted motion be filed
instead. (Id.) Plaintiff also filed a motion to alter or amend the order sealing the motion. (ECF No.
61.) That motion is DENIED. When a motion contains extensive discussion of a party’s medical
history and treatment and includes medical records as exhibits, redaction is seldom a useful
alternative.
On May 23, 2016 and July 5, 2016, Plaintiff filed motions for immediate injunctive relief.
In the May 23 filing, he sought an injunction prohibiting HCCF officials from enforcing a fiveounce per week limit on legal mail, contending that it constituted a denial of access to the courts.
(ECF No. 32.) The July 5 filing sought immediate medical treatment for severe headaches and to
be transferred to the Deberry Special Needs Facility. (ECF No. 39.) However, as stated, supra note
1, Plaintiff has been released from prison. Therefore, these motions for injunctive relief are
DENIED as moot.
Plaintiff also filed a motion for an “emergency” injunction on September 12, 2016 (ECF No.
69), only four days prior to his release. He sought an order requiring HCCF officials to give him
a blank CD so that he could transfer his legal documents from the prison library computer before
he left. That motion is also DENIED as moot. Defendants state that the HCCF Librarian printed

copies of Plaintiff’s legal documents and placed them in a box which he was then given when he
was released.
In summary:
Plaintiff’s motion to appoint counsel is DENIED. (ECF No. 48.) The motion to voluntarily
dismiss Centurion from this action is GRANTED. (ECF No. 25.) Plaintiff’s motion to amend the
complaint (ECF No. 23) is DENIED on the basis of his request to withdraw that motion and the
proposed amendment. However, the motion to extend the deadline for amending pleadings (ECF
No. 31) is GRANTED; therefore, the deadline for filing motions to amend pleadings or join
parties is extended to April 29, 2017.
Plaintiff’s motions to compel discovery (ECF Nos. 24 & 34) are GRANTED with regard to
his Request for Discovery No. 2, seeking production of CCA’s corporate medical policies. It is
ORDERED that Defendants shall, within twenty (20) days after the date of this order, either serve
Plaintiff with copies of the requested policies or serve and file with the Court a more specific
response or objection, as explained above. However, the motions to compel are DENIED as to
Plaintiff’s Requests for Discovery Nos. 3 and 4, seeking production of employment contracts.
Plaintiff’s motions to serve additional interrogatories are DENIED. (ECF Nos. 41 & 50.)
The motion to compel payment of Plaintiff’s medical bill (ECF No. 52) and the motion to alter or
amend the sealing order (ECF No. 61) are both DENIED. Finally, all motions for injunctive relief
are DENIED as moot. (ECF Nos. 32, 29 & 69.)
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE