Opinion
Case No. C2-02-178
December 11, 2002
OPINION AND ORDER
On February 27, 2002, Steven L. Stanley, an Ohio prisoner proceeding pro se and in forma pauperis, filed a complaint asserting constitutional, statutory, and tort claims against the Ohio Department of Rehabilitation and Correction ("ODRC") and a number of its officials and employees. Mr. Stanley has an array of motions pending before this Court including a motion requesting an extension of time to serve several of the defendants, a motion for initial disclosures, a motion to serve interrogatories in excess of 25 on defendants pursuant to Fed.R.Civ.P. 26(b)(2), a request for a court appointed expert medical witness pursuant to Fed.R.Evid. 706, a motion to amend his complaint to join additional defendants, and several motions for leave to supplement these motions pursuant to Fed.R.Civ.P. 15. Defendants have filed a motion to dismiss all defendants who have not been properly sewed pursuant to Fed.R.Civ.P. 12(b)(5). For the following reasons, Mr. Stanley's motion for extension of time to serve certain defendants, motion to serve additional interrogatories, motion to amend his complaint to join additional defendants, and motion for leave to supplement will be granted. Mr. Stanley's motion for initial disclosures and request for a court appointed expert medical witness will be denied. Defendants' motion to dismiss defendants who have not been properly served will be denied.
I.
The following statement of facts is taken from the complaint and the briefs filed in connection with the pending motions. Mr. Stanley was convicted and sentenced in 1990. Since that time, he has been transferred among several prison facilities including Allen Correctional Institution, Chillicothe Correctional Institution, Ross Correctional Institution, and Belmont Correctional Institution. Mr. Stanley alleges that he was discriminated against by certain prison officials and employees when he was transferred among prison facilities allegedly in retaliation for his seeking redress of his grievances in the courts. Mr. Stanley asserts that these transfers were in violation of his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. Mr. Stanley also claims to suffer from a number of medical disorders and conditions, including hepatitis B and C, irritable bowel syndrome, ulcers, duodenitis, hiatal hernia, and severe esophageal reflux, all of which presumably require significant medical attention. He alleges that certain prison employees and officials were deliberately indifferent to his medical needs in violation of the Eighth Amendment to the United States Constitution. Based on these allegations, Mr. Stanley also asserts state law tort claims. It is on the basis of these facts that the pending motions will be decided.
II. A. Extension of Time to Effect Service
On March 8, 2002, Mr. Stanley filed a motion requesting an extension of time to serve defendants Dr. "John Doe" Baker (Dr. "James" Baker), Lynn Goff, Michael Randle, and Linda Burgess. Mr. Stanley claims that as a prisoner, he lacks the ability and resources to obtain the proper names and addresses of these defendants. On October 28, 2002, defendants filed a motion to dismiss all defendants who had not been properly served pursuant to Fed.R.Civ.P. 12(b)(5). In addition to Dr. Baker, Ms. Goff, Mr. Randle, and Ms. Burgess, defendants also claim that John Jones has not been properly served. In their motion, defendants anticipate an argument that these defendants waived proper service through appearance by the answer to Mr. Stanley's complaint. The Court agrees that these defendants have not waived proper service since the answer limits its appearance to only those defendants who were properly served. See Answer.
Fed.R.Civ.P. 4(m) allows the court to "extend the time for service for an appropriate period" upon showing of good cause for failure of service by the plaintiff This Court has held that Rule 4(m) "gives the district court discretion to grant an extension of time to serve the summons and complaint even in the absence of a showing of good cause" based on the Supreme Court's dicta in Henderson v. United States, 517 U.S. 654, 662-63 (1996), the Advisory Committee Notes interpreting the federal rules, and the fact that the Sixth Circuit has not explicitly rejected the Advisory Committee Notes on this point. Vergis v. Grand Victoria Casino Resort, 199 F.R.D. 216, 218 (S.D.Ohio 2000).
Mr. Stanley's status as a prisoner weighs in favor of granting an extension of time to effect service, in that he is limited in his ability to locate these defendants. The case file reflects that Mr. Stanley has in fact attempted to serve these defendants, but to no avail. Therefore, the Court will grant Mr. Stanley an additional 60 days from the date of this Order in which to effect service on Dr. Baker, Ms. Goff, Mr. Randle, Ms. Burgess, and Mr. Jones. As a result, defendants' motion to dismiss on these grounds will be denied.
B. Initial Disclosures
On March 8, 2002, Mr. Stanley filed a motion requesting that defendants provide him with initial disclosures so that, among other things, he could obtain the names and addresses of all defendants.
Fed.R.Civ.P. 26(a)(1)(E) exempts certain proceedings from initial disclosures under Rule 26(a)(1) including "an action brought without counsel by a person in custody of the United States, a state, or a state subdivision." Fed.R.Civ.P. 26(a)(1)(E)(iii). As a prisoner proceeding pro se, Mr. Stanley falls within this exception. Therefore, he is not entitled to initial disclosures and the Court will deny his motion.
C. Service of Interrogatories in Excess of 25
On June 25, 2002, Mr. Stanley filed a motion requesting leave to serve a total of 54 interrogatories on defendants. On July 12, 2002, defendants filed a reply asserting that Mr. Stanley had failed to show why service of interrogatories in excess of 25 is necessary. Fed.R.Civ.P. 33 provides that "a party may serve upon another party interrogatories, not exceeding 25 in number including all discrete subparts." Fed.R.Civ.P. 26(b)(2) allows courts to alter these limits taking into consideration whether:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit.
In the case at bar, Mr. Stanley claims that additional interrogatories are necessary so that the first set of interrogatories can be "re-phrased, modified and redefined" in response to defendants' failure to answer the propounded interrogatories. Motion for Leave to Extend the Number of Interrogatories at 2. Defendants assert that the interrogatories ask for information Mr. Stanley already knows and that Mr. Stanley's claims are not so complex as to warrant 54 interrogatories.
Despite defendants' assertions, the Court concludes that allowing Mr. Stanley to serve a total of 54 interrogatories is reasonable. As a prisoner, Mr. Stanley has limited means to conduct discovery. In fact, service of interrogatories is likely the most practical means of discovery. See McConnell v. Pepp, No. 89 Civ. 2604, 1991 WL 50965, at *1 (S.D.N.Y. Apr. 3, 1991). Therefore, the Court will grant Mr. Stanley's motion for leave to serve 54 interrogatories on defendants.
D. Court Appointed Expert Medical Witness
On March 8, 2002, Mr. Stanley filed a motion requesting appointment of an expert medical witness regarding his claims that certain prison officials and employees were deliberately indifferent to his medical needs. Under Fed.R.Evid. 706, appointment of an expert "rests solely in the Court's discretion and is to be informed by such factors as the complexity of the matters to be determined and the Court's need for a neutral, expert view." Pabon v. Goord, No. 99CIV5869, 2001 WL 856601, at *1 (S.D.N.Y. July 30, 2001). Further, courts may appoint an expert "if scientific, technical. or other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a fact in issue." Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997); see also Fed.R.Evid. 702.
In the case at bar, the issue is whether certain prison officials and employees were deliberately indifferent to Mr. Stanley's medical needs. At this stage of' the pleadings, the Court is without sufficient evidence by which to determine whether appointment of an expert is necessary. Therefore, Mr. Stanley' s motion for appointment of an expert medical witness will be denied without prejudice.
E. Amendment to Join Additional Defendants
On August 16, 2002, Mr. Stanley filed a motion to amend his complaint to add Dr. Bruce A. Martin and Dr. Herbert Estis, Jr. as defendants to the action. On September 6, 2002, defendants filed a response opposing Mr. Stanley's motion to amend asserting that Mr. Stanley has failed to state a claim against Dr. Martin and Dr. Estis.
Motions for leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). As a pro se plaintiff, Mr. Stanley's claims are to be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Mr. Stanley asserts that Dr. Martin was the acting Chief Medical Director for the ODRC and that Dr. Estis was the acting Medical Director for the ODRC for the time periods relevant to Mr. Stanley's complaint. Mr. Stanley further asserts that both had final authority to authorize or deny a prisoner's request for surgeries, medical procedures, or prescription drug treatments. Mr. Stanley's claim regarding defendants' deliberate indifference to his medical needs conceivably could implicate Dr. Martin and Dr. Estis. In light of the requirement of liberal construction of a pro se plaintiff's claims, the Court concludes that Mr. Stanley has at least an arguable claim against the doctors. Therefore, the Court will grant Mr. Stanley's motion for leave to amend his complaint to add Dr. Martin and Dr. Estis as defendants to this action.
F. Leave to Amend, Supplement or Respond
Finally, on several occasions, Mr. Stanley has requested leave to amend or supplement his pleadings. Fed.R.Civ.P. 15 directs that leave to do so "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Mr. Stanley has also requested leave to respond to defendants' responses to his various motions. Since the Court is disposing of all pending motions, that leave is unnecessary. The Court will grant Mr. Stanley leave to amend or supplement his pleadings provided that he consolidates such amendment or supplementation into a single pleading.
III.
Based on the foregoing, Mr. Stanley's motion for extension of time to serve defendants (file doc. #5), motion for leave to serve additional interrogatories (file docs. #31, 41), motion to amend his complaint to add additional defendants (file doc. #40), and motions for leave to amend, supplement, or respond (file does. #13, 43, 44, 47, 48) are GRANTED. Mr. Stanley's motion for initial disclosures (file docs. #6, 12) is DENIED. Mr. Stanley's motion requesting a court appointed expert medical witness (file doc. 47) is DENIED WITHOUT PREJUDICE. Defendants' motion to dismiss defendants who have not been properly served (file doc. #49) is DENIED. The unserved defendants shall be served within 60 days, and Mr. Stanley may file a single consolidated pleading adding new defendants and supplementing his earlier pleadings within 30 days.