United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Bradley Price Barber, a state prisoner appearing pro se and
appearing in forma pauperis, has filed three
nondispositive motions. These motions (Doc. Nos. 128, 133,
135) are denied without prejudice for the reasons outlined
Motion to Modify the Scheduling Order
this motion, Plaintiff asks the Court to “issue a[n]
order telling Defendants to take [Plaintiff's] late
discovery request.” Pl.'s Third Mot. to Mod. Sched.
Order (Doc. No. 135) at 1. On December 22, 2016, the Court
issued a Scheduling Order instructing the parties to complete
discovery by March 22, 2017. Sched. Order (Doc. No. 106) at
1-2. Plaintiff's pending motion, filed on July 21, 2017,
is the first in which Plaintiff has specifically asked the
Court to modify the final discovery deadline. See
Order of Feb. 10, 2017 (Doc. No. 111) at 1-2; Order of Mar.
17, 2017 (Doc. No. 115) at 1-3 (denying Plaintiff's
request to “restart” his deadline to produce
initial disclosures and “to order a stay” of all
unexpired deadlines). Plaintiff has already responded to
Defendants' pending motion for summary judgment, and he
did not file his own motion for summary judgment before the
March 8, 2017 deadline expired. See Pl.'s Resp.
(Doc. No. 122) at 1-4.
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). “Demonstrating good cause under th[is] rule
requires the moving party to show that it has been diligent
in attempting to meet the deadlines, which means it must
provide an adequate explanation for any delay.”
Strope v. Collins, 315 F. App'x 57, 61 (10th
Cir. 2009) (internal quotation marks omitted). Additionally,
because Plaintiff filed his pending motion after the deadline
to complete discovery expired, “he must also
demonstrate excusable neglect for the delay” in
requesting a modification. Maddox v. Venezio, No.
09-CV-01000, 2010 WL 2363555, at *1 (D. Colo. June 10, 2010)
(citing Fed.R.Civ.P. 6(b)(1)(B), 16(b)(4)); accord Carver
v. KIA Motors Corp., No. 10-CV-642, 2012 WL 90090, at *3
(N.D. Okla. Jan. 11, 2012) (same). Excusable neglect
“is an ‘equitable' standard” that takes
into account all of the relevant circumstances and probable
consequences of the party's failure to act before time
expired. See Utah Republican Party v. Herbert, 678
F. App'x 697, 701 n.2 (10th Cir. 2017) (quoting
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993)).
states that “he has been unable to perfect discovery
due to reasons beyond his control, lock down most of the time
at CCF, or unable to get approved to visit the law library or
even consult with persons knowledgeable in the discovery
process.” Pl.'s Third Mot. to Mod. Sched. Order at
1. Plaintiff does not provide any details about these
circumstances or explain what specific steps, if any, he took
to prepare discovery requests before the deadline expired in
late March 2017. Id. at 1-2.
Court has twice rejected requests by Plaintiff to
“restart” or “stay” deadlines set out
in the Scheduling Order. Order of Mar. 17, 2017, at 1-3;
Order of Apr. 21, 2017 (Doc. No. 123) at 1-2; see
also Order of Feb. 10, 2017, at 1-2. As the Court
explained in those Orders, Plaintiff has filed one amended
complaint, multiple response briefs or objections, hundreds
of pages of exhibits, and more than two dozen substantive or
procedural motions since he filed this action in January
2015, all despite the fact that Plaintiff is an incarcerated
person proceeding pro se. Order of Mar. 17, 2017, at 3; Order
of Apr. 21, 2017, at 1. The circumstances Plaintiff describes
in his third motion do not constitute excusable neglect for
missing the expired discovery deadline or good cause for
modifying the Scheduling Order generally. See, e.g.,
United States v. Williams, 179 F. App'x 522, 525
(10th Cir. 2006) (noting that a prisoner's “pro se
status does not excuse the obligation” to comply with
filing deadlines). Accordingly, Plaintiff's Third Motion
to Modify the Scheduling Order (Doc. No. 135) is DENIED
without prejudice. Defendants are not required to respond to
Plaintiff's late discovery requests. See Fed. R.
Civ. P. 56(d).
Motion to Appoint an Expert Witness
In this motion, Plaintiff asks the Court “to provide
[Plaintiff] a doctor to examine him along with all his
records and to testify.” Pl.'s Mot. to Appt. Expert
Witness (Doc. No. 128) at 1. “Plaintiff feels it is
incumbent upon this Court to do this due to [Plaintiff] being
incarcerated and unable to afford one and the Plaintiff
believes it is imperative to his case due to the technical
aspects and being unable to refute the other side[']s
testimony.” Id. (internal brackets omitted).
The Court construes Plaintiff's motion as a request to
appoint an expert witness under Rule 706 of the Federal Rules
a party's motion or on its own, the court may order the
parties to show cause why expert witnesses should not be
appointed” in a particular case and “may appoint
any expert that the parties agree on and any of its own
choosing.” Fed.R.Evid. 706(a). The Tenth Circuit
recently noted in a published decision that “courts
rarely exercise the[ir] power” to appoint medical
experts. Rachel v. Troutt, 820 F.3d 390, 397 (10th
Cir. 2016). Indeed, “[s]ome courts treat this power as
‘the exception and not the rule, ' limiting
appointment of experts to the ‘truly extraordinary
cases where the introduction of outside skills and expertise,
not possessed by the judge, will hasten the just adjudication
of a dispute without dislodging the delicate balance of the
juristic role.'” Id. at 397-98 (quoting
Reilly v. United States, 863 F.2d 149, 156 (1st Cir.
following Eighth Amendment deliberate-indifference claims
remain for disposition in this § 1983 action: (1)
Plaintiff's individual-capacity claims alleging that
Defendants Donald Sutmiller, Beth Wagener, and Jody Jones
prevented Plaintiff from receiving prescribed treatment for
his diagnosed hepatitis C viral (“HCV”) infection
on or after January 26, 2013; and (2) Plaintiff's
official-capacity claim seeking prospective injunctive relief
against Defendant Joel McCurdy. See R. & R. of
Mar. 9, 2017 (Doc. No. 113) at 1. Defendants have moved for
summary judgment on several grounds, and Plaintiff has
responded to that motion. See generally Defs.'
Mot. Summ. J. (Doc. No. 112) at 7-24; Pl.'s Resp. at 1-4.
Plaintiff's deliberate-indifference claims are not so
complex that they require an independent medical expert
before the Court resolves Defendants' motion for summary
judgment. See Rachel, 820 F.3d at 397 (citing
Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir.
1997)). Accordingly, Plaintiff's Motion to Appoint an
Expert Witness (Doc. No. 128) is DENIED without prejudice.
Second Motion to Appoint Counsel
motion, Plaintiff asks the Court to “make his case
available to be represented by an attorney . . . due to the
multifa[c]eted issues that must be properly litigated to
[e]nsure following of our great constitution now and into the
future.” Pl.'s Second Mot. to Appt. Counsel (Doc.
No. 133) at 1. Generally, the Court may only “request,
” not “appoint, ” legal representation for
a civil litigant, and such request is initially based on the
litigant's indigent status. See 28 U.S.C. §
1915(e)(1). Before the Court will make such a request,
“[t]he burden is upon the applicant to convince the
court that there is sufficient merit to his claim to warrant
the appointment of counsel.” McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). In
determining whether the appointment of counsel for an
indigent prisoner is warranted, the court considers
“the merits of a prisoner's claims, the nature and
complexity of the factual and legal issues, and the
prisoner's ability to investigate the facts and present
his claims.” Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1115 (10th Cir. 2004).
Plaintiff explains that he “is exhausted by trying to
explain to the Court what[']s happened” in his
case, that he “is no attorney and does not have the
time to play these learn or die tactics, ” and that he
“does not know how to conduct a proper
discovery.” Pl.'s Second Mot. to Appt. Counsel at
1, 4. The Court understands Plaintiff's concerns and
frustrations as a lay prisoner representing himself. As the
Court has already noted, however, Plaintiff has shown that he
is sufficiently capable of litigating his Eighth Amendment
claims at this stage of the litigation. See Order of
Mar. 17, 2017, at 3; Order of Apr. 21, 2017, at 1. Moreover,
the time for Plaintiff to conduct discovery in this matter is
presumptively closed. Sched. Order at 1-2; see Fed.
R. Civ. P. 56(d). At this point, the Court ...