Feemster v. Chapa et al

Filing 42

ORDER ON PLAINTIFF'S PENDING MOTIONS... [39-1] Motion for Appointment of Counsel is DENIED... [39-2] Motion for 90-Day Stay of this Case is DENIED... [39-3] Plaintiff's Motion for Relief from the 2/15/18 Order is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED only to the extent that Plaintiff shall have until 3/27/18 to file a response to Deft Tupa's Motion to Dismiss. The remaining deadlines are TERMINATED... 40 Motion for Clerk for Provide a copy of DE39 to Medical Officer Tupa is GRANTED (on this one occasion).(Signed by Magistrate Judge Jason B Libby) Parties notified.(ltesch, 6)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
TODD ALAN FEEMSTER,
Plaintiff,
VS.
P. CHAPA, et al,
Defendants.

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March 13, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 6:17-CV-39

ORDER ON PLAINTIFF’S PENDING MOTIONS
Plaintiff Todd Alan Feemster is a Texas inmate appearing pro se in this civil rights
case. Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID) and is currently confined at the Stiles Unit in
Beaumont, Texas. Pending before the Court are Plaintiff’s Motion for Appointment of
Counsel (D.E. 39-1), Motion to Stay (D.E. 39-2), Motion for Relief from Order (D.E. 393), and Motion for Clerk to Provide Copy to Defendant C. Tupa (D.E. 40).
I.

BACKGROUND
On December 18, 2017, the undersigned issued a Memorandum and

Recommendation, recommending that: (1) Plaintiff’s deliberate indifference claims to his
health and safety be retained against: (a) Warden R. Beard, Jr., Program Supervisor V.
Maciel, Correctional Officer T. Salles, and Correctional Officer V. Tijerina in their
individual capacities; and (b) Warden R. Beard, Jr. and Program Supervisor V. Maciel in
their official capacities for injunctive relief; (2) Plaintiff’s deliberate indifference claim to

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his serious medical needs be retained against Medical Officer C. Tupa; (3) Plaintiff’s
ADA/RA claim be retained against the TDCJ; and (4) Plaintiff’s claims for money
damages against all Defendants in their official capacities be dismissed as barred by the
Eleventh Amendment; and (5) Plaintiff’s claims against the remaining Defendants be
dismissed for failure to state a claim and/or as frivolous. (D.E. 23). The undersigned,
therefore, ordered service on: (1) Warden Beard; (2) Program Supervisor Maciel; (3)
Correctional Officer Salles; (4) Correctional Officer Tijerina; (5) Medical Officer Tupa;
and (6) the TDCJ.

(D.E. 24). Senior United States District Judge Hayden Head

overruled Plaintiff’s objections and adopted the undersigned’s M&R. (D.E. 28, 31).
On February 5, 2018, Medical Officer Tupa filed a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (D.E. 36). On the same day, the other
remaining Defendants filed their Answer.

(D.E. 35).

On February 15, 2018, the

undersigned issued an Order Setting Deadlines which directed, inter alia, that “[a]ny
motion to amend pleadings or add parties must be filed on or before Wednesday,
February 28, 2018.” (D.E. 38).
On March 5, 2018, Plaintiff filed a pleading entitled “Plaintiff’s Third Status
Change, Second Address Change, Second Stay Request, Second Relief from Order
Request, and Third Request for Appointment of Counsel.” (D.E. 39). He also filed a
motion asking the Clerk of the Court to provide a copy of Docket Entry 39 to Medical
Officer Tupa. (D.E. 40).

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II.

DISCUSSION
A.

Motion for Appointment of Counsel

Plaintiff has filed his third request for court-appointed counsel. (D.E. 39-1, pp. 34). Plaintiff’s motion is DENIED for the reasons set forth in the October 18, 2017 Order
(D.E. 17), in which the undersigned denied Plaintiff’s first motion to appoint counsel.
(D.E. 17). Plaintiff has advanced no reason to cause the undersigned to revisit that
decision. Plaintiff is again instructed that the Court will appoint counsel if the case
proceeds to trial or if the appointment of counsel otherwise becomes necessary at a later
stage of these proceedings.
B.

Motion to Stay

At the time Plaintiff filed the instant action, he was incarcerated at the Stevenson
Unit in Cuero, Texas. On December 22, 2017, Plaintiff notified the Court that he had
been transferred to the Wallace Pack Unit in Navasota, Texas. (D.E. 25). On March 5,
2018, Plaintiff notified the Court about his current assignment to the Stiles Unit. (D.E.
39, pp. 1-2). Due to his recent transfer to the Stiles Unit, where he has limited access to
its law library, Plaintiff seeks a ninety-day stay in this case for the purposes of: (1)
ensuring his Amended Complaint has been accepted by the Court; (2) seeking additional
time to supplement his Amended Complaint by adding: (a) ADA/RA claims occurring at
the Stevenson Unit in July, 2017; (b) a claim of retaliation by UTMB; and (3) a claim of
denial of access to courts on the Wallace Pack Unit. (D.E. 39, pp. 2-3).
Plaintiff’s request for a 90-day stay of this action (D.E. 39-2) is denied as he
presents nothing to support such a lengthy stay of this case at this time. The record
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reflects that Plaintiff’s Amended Complaint, filed on July 17, 2017 (D.E. 5), already has
been accepted by this Court.

Plaintiff also seeks time to supplement his amended

complaint with additional claims, some of which relate to the claims retained in this case
and some of which do not. The Court has received Plaintiff’s First Motion Seeking
Leave of Court to File Supplemental Pleading (D.E. 41) which will be ruled on by
separate order. Plaintiff’s motion to stay is DENIED.
C.

Motion for Relief from Order

Plaintiff seeks relief from the undersigned’s Order Setting Deadlines issued on
February 15, 2018. (D.E. 39-3, p. 3). Because he did not receive that Order until
February 21, 2018, Plaintiff argues that he cannot comply with the deadlines set forth
therein. (D.E. 39, p. 3). The only deadline which has passed is the one directing Plaintiff
to file any motion to amend pleadings or add parties on or before February 28, 2018.
(D.E. 38).

As stated above, the Court has received Plaintiff’s motion to file a

supplemental pleading. (D.E. 41). The undersigned finds that the remaining deadlines
should be terminated until a recommendation is entered on Defendant Christi Tupa’s
motion to dismiss. (D.E. 36). Plaintiff is granted an extension until March 27, 2018 to
file a response to Defendant Tupa’s motion to dismiss. (D.E. 36). The remaining
deadlines set in the undersigned’s February 15, 2018 order (D.E. 38) for completion of
discovery, experts, and dispositive motions are TERMINATED. An amended order
setting deadlines will be set at a later date.

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D.

Motion for Clerk to Provide Copy to Defendant C. Tupa
Plaintiff requests that the Clerk of the Court provide a copy of Docket Entry 39,

which contains the motions discussed above, to Medical Officer Tupa. (D.E. 40). In the
Order for Service of Process entered on December 19, 2017, however, Plaintiff was
required to mail a copy of every pleading, motion, or document filed to all counsel of
record, and include a certificate of service, stating that he mailed a copy of his pleading to
counsel for Defendants. (D.E. 24, ¶ 4).
A review of Plaintiff’s certificate of service attached to Docket Entry 39 does not
indicate that he mailed a copy of same to counsel for Defendants. (See D.E. 39, p. 4).
Rather than comply with the December 19, 2017 Order, Plaintiff asks the Court to mail
Docket Entry 39 to the appropriate party. On this one occasion, Plaintiff’s failure to
comply will be overlooked, and his motion (D.E. 40) is GRANTED. As instructed
below, the Clerk of the Court will forward a copy of Docket Entry 39 to Medical Officer
Tupa’s counsel. In the future, however, Plaintiff's failure to comply with the December
19, 2017 Order (D.E. 24) and properly mail his pleadings to Defendants’ counsel may
result in such pleadings being struck from the record without notice.
III.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion for

Appointment of Counsel (D.E. 39-1) and Motion for a 90-day Stay of this Case (D.E. 392) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Relief from the
February 15, 2018 Order (D.E. 39-3) is GRANTED IN PART and DENIED IN PART.
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Plaintiff’s motion is GRANTED only to the extent that Plaintiff shall have until March
27, 2018 to file a response to Defendant Tupa’s motion to dismiss. The remaining
deadlines set in the undersigned’s February 15, 2018 order (D.E. 38) for completion of
discovery, experts, and dispositive motions are TERMINATED. An amended order
setting deadlines will be set at a later date.
IT IS FURTHER ORDERED that Plaintiff’s Motion for the Clerk to provide a
copy of Docket Entry 39 to Medical Officer Tupa (D.E. 40) is GRANTED to the extent
that the Clerk of the Court is DIRECTED to transmit a copy of Docket Entry 39 to
counsel for Medical Officer Tupa. Plaintiff is WARNED, however, that his failure to
comply with the December 19, 2017 Order (D.E. 24) and properly mail his pleadings to
Defendants’ counsel may result in sanctions being imposed against him, including the
striking of such pleadings from the record without notice.
ORDERED this 13th day of March, 2018.

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Jason B. Libby
United States Magistrate Judge

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