United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
an inmate at the Tecumseh State Correctional Institution
(“TSCI”), brings this 42 U.S.C. § 1983
action against Defendants for allegedly subjecting him to
cruel and unusual punishment by being deliberately
indifferent to his serious medical needs-that is, refusing to
replace Plaintiff's poorly fitting dentures with dental
implants. After initial review, the court allowed
Plaintiff's Eighth and Fourteenth Amendment claim for
prospective injunctive relief (the only type of relief
requested) to proceed against the Nebraska Department of
Correctional Services, Correct Care Solutions, and Scott
Frakes, Randy T. Kohl, Ronald Ogden, and Lisa Mathews in
their individual and official capacities. (Filing No. 12;
Filing No. 16.)
parties have filed several miscellaneous motions:
Plaintiff's Motion for Appointment of Counsel (Filing No.
38); Plaintiff's Motion for an Order to Produce Plaintiff
for an Examination by an Outside Oral Surgeon (Filing No.
40); Defendants' Motion to Dismiss Dr. Ronald Ogden and
Correct Care Solutions, LLC (Filing No. 43); Plaintiff's
Motion for Permission to Amend Complaint to Add Nominal,
Compensatory, and Punitive Money Damages (Filing No. 50);
Plaintiff's Motion to Compel (Filing No. 52); and
Plaintiff's Motion for Leave to Amend or File
Supplemental Pleadings (Filing No. 54).
for Appointment of Counsel
Plaintiff was previously advised (Filing No. 12; Filing No.
20), it is not clear that Plaintiff and the court will
benefit from the appointment of counsel at this point.
Through his filing of multiple pleadings, motions, responses,
objections, and letters to the court, Plaintiff has
demonstrated his ability to competently present his claims to
the court and manage his litigation without assistance. Thus,
Plaintiff's request for the appointment of counsel will
once again be denied without prejudice. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006)
(there is no constitutional or statutory right to appointed
counsel in civil cases, and 28 U.S.C. § 1915(e) says
court “may” appoint counsel; “relevant
criteria for determining whether counsel should be appointed
include the factual complexity of the issues, the ability of
the indigent person to investigate the facts, the existence
of conflicting testimony, the ability of the indigent person
to present the claims, and the complexity of the legal
arguments”); Trotter v. Lawson, 636 F.
App'x 371, 373 (8th Cir. 2016) (unpublished) (appointed
counsel may not be warranted early in proceedings and when it
is not clear that plaintiff has difficulty in obtaining and
presenting admissible evidence and lacks skills to present
case to jury); Davis v. Scott, 94 F.3d 444, 447 (8th
Cir. 1996) (“Indigent civil litigants do not have a
constitutional or statutory right to appointed counsel. The
trial court has broad discretion to decide whether both the
plaintiff and the court will benefit from the appointment of
counsel[.]” (internal citation and quotation marks
to Produce Plaintiff for Examination
Fed.R.Civ.P. 35, Plaintiff moves to “be examined by an
outside oral surgeon to determine the success of dental
implant surgery in Plaintiff's case” and to have
that surgeon prepare a written report setting forth the
surgeon's findings. (Filing No. 40.) Plaintiff's
motion will be denied because Rule 35 does not grant the
court authority to appoint an expert to examine a party who
wants a medical examination of himself. Brown v. United
States, 74 F. App'x 611, 614 (7th Cir. 2003)
(unpublished) (Fed. R. Civ. P. 35 “does not vest the
court with authority to appoint an expert to examine a party
wishing an examination of himself”; rather, it allows
“the court to order a party to submit to a physical
examination at the request of an opposing party”);
Smith v. Carroll, 602 F.Supp.2d 521, 526 (D. Del.
2009) (denying plaintiff prisoner's request for
appointment of expert to evaluate prisoner's medical
condition in § 1983 deliberate-indifference case because
Fed. R. Civ. P. 35 “does not vest the court
with authority to appoint an expert to examine a party
wishing an examination of himself. Instead, under appropriate
circumstances, it allows the court to order a party to submit
to a physical examination at the request of an opposing
party. . . . no civil litigant, even an indigent one, has a
legal right to such aid”); Sherrod v. Ryan,
No. CV-15-00296, 2016 WL 5219449, at *1 (D. Ariz. Sept. 20,
2016) (same); Foster v. Lombardi, No. 1:12-CV-00116,
2013 WL 3820718, at *1 (E.D. Mo. July 23, 2013)
(“Rule 35 does not vest the court with authority to
appoint an expert to examine a party on his own
motion.”); Grace v. Hakala, No. 1:11CV81, 2012
WL 2190902, at *3 (E.D. Mo. June 14, 2012) (same);
Cabrera v. Williams, 2007 WL 2682163 at *2 (D. Neb.
Sept.7, 2007) (same).
to Dismiss Dr. Ronald Ogden & Correct Care Solutions,
Dr. Ronald Ogden and Correct Care Solutions, LLC,
(“CCS”) move (Filing No. 43) to dismiss
Plaintiff's claims for injunctive relief against them
under Fed.R.Civ.P. 12(b)(1) because these Defendants no
longer provide services to inmates at TSCI, where Plaintiff
is incarcerated, and therefore do not have the ability or
authority to provide the injunctive relief Plaintiff is
seeking. (Filing No. 44-1, Dec. W. Colton Cline ¶ 6
(“July 24, 2017 was the last day CCS provided services
at TSCI. CCS is no longer under contract with the State of
Nebraska and is no longer providing services at
TSCI.”); Filing No. 44-2, Decl. Ronald Ogden, DDS
¶ 4 (“Because CCS terminated its contract to
provide medical services at TSCI, my contract with CCS to
perform dental services at TSCI also terminated. My last day
working at TSCI was July 24, 2017.”).)
as Plaintiff's claim for injunctive relief is concerned,
I shall grant the motion to dismiss Defendants Ogden and CCS
in part because the actions that would be required by an
injunction would be impossible for these Defendants to
execute since they are no longer employed by TSCI, making
Plaintiff's claim for injunctive relief moot.
Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir.
2001) (when actions required by injunction would be
impossible for correctional-center defendants to execute
because plaintiff was moved to another institution,
plaintiff's claims for injunctive relief against
defendants were moot); Beck v. Mo. State High Sch.
Activities Ass'n, 18 F.3d 604, 605 (8th Cir. 1994)
(per curiam) (noting that a case is moot when circumstances
change to such a degree that “a federal court can no
longer grant effective relief”); Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (concluding
that claim for injunctive relief against warden was moot
because prisoner was transferred to another prison). However,
these Defendants shall remain parties as to Plaintiff's
forthcoming Second Amended Complaint, which shall contain a
request for monetary damages (see discussion below).
to Amend Complaint to Add Money Damages
days after Defendants Ogden and CCS moved to dismiss
Plaintiff's claims for injunctive relief against them,
Plaintiff filed a Motion for Permission to Amend Complaint to
Add Nominal, Compensatory, and Punitive Money Damages (Filing
No. 50) and, later, a Motion for Leave to Amend or
File Supplemental Pleadings (Filing No. 54). Plaintiff
requests money damages for the “pain &
suffering” he has experienced from ill-fitting dentures
and for damage to his healthy lower front teeth, which
Defendant Ogden and CCS allegedly “ground off . . . to
make Plaintiff[']s upper denture fit, knowing that by
grinding down healthy teeth it would leave nerves exposed . .
. .” (Filing No. 50 at CM/ECF p. 1.)
order to amend a pleading to which a responsive pleading is
required, Fed.R.Civ.P. 15(a) requires the opposing
party's written consent or the court's leave to amend
when a party requests permission to amend more than 21 days
after service of a responsive pleading or filing of a motion
under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.
Here, Defendants Frakes, Kohl, Mathews, and NDCS filed an
Answer on June 30, 2017 (Filing No. 34), and Defendants Ogden
and CCS filed an Answer on July 3, 2017 (Filing No. 35).
Plaintiff's motions for leave to amend were not filed
until August 10, 2017 (Filing No. 50), and September 11, 2017
(Filing No. 54). Therefore, in order to amend his
Complaint (Filing No. 1) and Amended Complaint (Filing No.
14), Plaintiff must receive “the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
Defendants have neither responded to Plaintiff's motions
to amend nor indicated their consent to Plaintiff's
motions to amend; therefore, Plaintiff may amend his
Complaints only with “the court's leave, ”
which should be ...