Jones v. Anderson

Full title: HARVEY JONES ADC #88202, Plaintiff v. DR. ROLAND ANDERSON, and JOHN DOES…

Court: United States District Court, E.D. Arkansas, Pine Bluff Division

Date published: Feb 3, 2006

5:05CV00220 JTR (E.D. Ark. Feb. 3, 2006)

Opinion

5:05CV00220 JTR.

February 3, 2006

ORDER

J. RAY, Magistrate Judge

Plaintiff, who is currently incarcerated at the Cummins Unit of the Arkansas Department of Correction ("ADC"), has commenced this pro se § 1983 action alleging that Defendants Dr. Anderson¹ and John Does, who are unknown medical providers for Correctional Medical Services, Inc. ("CMS"), have failed to provide him with adequate care for his right eardrum which was injured during an altercation with prison guards on October 18, 2004.² See docket entries #2 and #42.

1 As will be explained herein, Plaintiff did not specify the first name of that individual.

2 On November 3, 2005, the Court dismissed Plaintiff's excessive force claim against those prison guards pursuant to the three-strikes rule set forth in 28 U.S.C. § 1915(g). See docket entry #40.

Separate Defendant Dr. Roland Anderson has filed a Motion to Dismiss and a Supporting Brief, to which Plaintiff has filed a Response. See docket entries #47, #48, and #52. Additionally, Plaintiff has filed a Motion to Voluntarily Dismiss Dr. Roland Anderson. See docket entry #54. For the reasons set forth herein, the Court will grant Defendant's and Plaintiff's Motions to Dismiss Dr. Roland Anderson, and order service upon Dr. Donald Anderson.³

3 On October 31, 2005, the parties consented to proceed before a United States Magistrate Judge. See docket entry #30.

II. Motions to Dismiss

In his Amended Complaint, Plaintiff named "Dr. Anderson" as a Defendant, without specifying a first name for that individual. See docket entry #42. Specifically, Plaintiff alleges that, on or about March 16, 2005, a Dr. Anderson examined him at the Cummins Unit and rendered inadequate medical care for his ruptured and/or infected right eardrum. Id.

On November 28, 2005, counsel for CMS accepted service on behalf of "Dr. Anderson," because she believed that he was Dr.Roland Anderson, who was the only CMS physician employed in March of 2005.⁴ See docket entry #43. However, in his Motion to Dismiss, Defendant Dr. Roland Anderson explains that ADC records demonstrate that Plaintiff was actually seen at the Cummins Unit on March 16, 2005, by Dr. Donald Anderson, who at that time, was not a CMS employee. See docket entry #27, Exhibit D at 10; docket entry #47, attachment. Additionally, counsel has orally informed a member of the Court's staff that, in March of 2005, Dr. Donald Anderson was an independent contractor working for CMS on a temporary basis and that, during that time period, he maintained his own insurance. Accordingly, counsel asserts that it does not have authority to accept service on behalf of Dr. Donald Anderson, and she has provided the Court with his last known private mailing address.

4 A few days later, on December 4, 2005, counsel also entered an appearance on behalf of "Defendant Anderson." See docket entry #44.

Importantly, Plaintiff agrees that Dr. Roland Anderson is the wrong Defendant in this action. See docket entries #52 and #54. Accordingly, he asks the Court to voluntarily dismiss Dr.Roland Anderson and, instead, to order service upon Dr. Donald Anderson. Id.

The Court finds the parties mutual requests to dismiss Dr. Roland Anderson to be proper. Further, the Court will grant Plaintiff's request to add Dr. Donald Anderson as a Defendant and order service upon him at the private mailing address that is attached to this Order in a SEALED exhibit.⁵

5 The Court does not, at this time, render any ruling as to whether Dr. Donald Anderson is/was a "state actor" amenable to suit in this § 1983 action.

III. John Doe Defendants

Finally, the Court notes that the John Doe Defendants are currently the only other Defendants named in this action. On November 3, 2005, the Court entered an Order giving Plaintiff until March 3, 2006, to provide the Court with the full names and service addresses for each of the John Doe Defendants, all of whom appear to have provided allegedly inadequate medical care for Plaintiff's injury to his right eardrum. See docket entry #40; see also Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (explaining that it is the responsibility of a prisoner proceeding pro se and in forma pauperis in a § 1983 action to provide the court and the U.S. Marshals with a proper service address for the defendants).

The Court has been advised, in a different § 1983 action, that the ADC has a written policy allowing inmates to physically review their medical records in preparation for litigation. See Rowe v. Anderson, 5:05CV00113, docket entry #41, Exhibit 2. Accordingly, the Court will order the Warden of the Cummins Unit to provide Plaintiff with access to his medical records so that he may try to determine the identities of the John Doe Defendants who allegedly provided him with inadequate medical care for the October 2004 injury to his right eardrum. Specifically, the Warden shall, from the date of this Order until February 20, 2006, provide Plaintiff with at least four hours of access to his medical records. That should give Plaintiff ample time to determine the identities of the John Doe Defendants and file an appropriate Motion with the Court before the March 3, 2006 deadline.

III. Conclusion

IT IS THEREFORE ORDERED THAT:

1. Defendant's Motion to Dismiss (docket entry #47) and Plaintiff's Motion to Voluntarily Dismiss (docket entry #54) are GRANTED, and Defendant Dr. Roland Anderson is DISMISSED, WITH PREJUDICE, from this action.

2. The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3),⁶ that an in forma pauperis appeal from this Order would not be taken in good faith.

6 28 U.S.C. § 1915(a)(3) provides that: "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

3. The Clerk is directed to prepare a Summons for Dr. Donald Anderson at the address provided in the SEALED exhibit which is attached to this Order, and the U.S. Marshal is directed to serve the summons, the Complaint (docket entry #2), the Amended Complaint (docket entry #42), and this Order upon him without prepayment of fees and costs or security therefor. Importantly, any return of service should be filed with the private address redacted.

4. The Clerk shall mail a copy of this Order to the Warden of the Cummins Unit, at P.O. Box 500, Grady, Arkansas 71644-0500.

5. The Warden of the Cummins Unit shall immediately provide Plaintiff with access to his medical records, as specified in this Order.