Rachel v. Troutt ( 2016 )


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  •                                                                         FILED
    United States Court of Appeals
    PUBLISH                             Tenth Circuit
    UNITED STATES COURT OF APPEALS                     April 26, 2016
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                        Clerk of Court
    _________________________________
    ARCHIE RACHEL,
    Plaintiff-Appellant,
    v.                                                  No. 15-6104
    JEFFREY TROUTT, D.O., in his
    official and individual capacity as
    the facility doctor; KATRYNA
    FRECH, R.N., in her official and
    individual capacity; JANET
    DOWLING, Warden, in her official
    and individual capacity; FELICIA
    HARRIS, Law Librarian, in her
    official and individual capacity,
    Defendants-Appellees.
    _________________________________
    Appeal from the United States District Court
    For the Western District of Oklahoma
    (D.C. No. 5:14-CV-00655-R) *
    _________________________________
    Archie Rachel, Pro Se, Plaintiff-Appellant.
    Stefanie Erin Lawson, Office of the Attorney General for the State of
    Oklahoma, Oklahoma City, Oklahoma, for Defendants-Appellees.
    _________________________________
    *
    Mr. Rachel requests oral argument, but it would not materially aid
    our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir.
    R. 34.1(G). Thus, we have decided the appeal based on the briefs.
    Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
    _________________________________
    BACHARACH, Circuit Judge.
    _________________________________
    The Federal Rules of Civil Procedure permit a party to request an
    extension of time based on good cause. The plaintiff, Mr. Archie Rachel, is
    a state prisoner who was given 21 days to seek discovery, obtain and
    review responses that were not even due within the 21-day period, and
    respond to the defendants’ motion for dismissal or summary judgment. All
    the while, Mr. Rachel had access to a prison law library for only a few
    hours per week. Given these circumstances, Mr. Rachel asked for
    additional time to respond to the defendants’ dispositive motion. The
    district court did not rule on the request for additional time; thus, Mr.
    Rachel had no choice but to respond without the benefit of the requested
    discovery.
    In this appeal, we ask: Should the district court have found good
    cause for an extension of time? We conclude the court should have granted
    an extension of time. Accordingly, we reverse and remand.
    I.    The Underlying Suit
    Mr. Rachel is a 71-year-old state prisoner who suffers from various
    medical conditions. In this suit, he alleges that (1) he routinely had to wait
    outdoors in adverse conditions to receive his medications, (2) he received
    2
    inadequate care from the prison’s medical staff, and (3) the prison=s
    grievance procedure was unfair.
    Based on these allegations, Mr. Rachel invoked 42 U.S.C. ' 1983,
    suing a prison doctor, a prison nurse and health services administrator, the
    warden, and a prison law librarian. In screening the complaint, the district
    court stayed discovery and ordered prison officials to prepare an
    investigative Martinez report. 1 According to Mr. Rachel, the report
    contained lies and omitted pertinent policies, medical documents, and
    administrative submissions. Nonetheless, the district court relied on the
    Martinez report in granting summary judgment to the defendants. This
    appeal followed.
    II.   The district court should have granted an extension of time
    before ruling on the defendants= dispositive motion.
    On February 2, 2015, the defendants filed both the dispositive motion
    and the prison officials’ Martinez report. With the filing of the Martinez
    report, Mr. Rachel obtained an opportunity to conduct discovery for the
    first time. He quickly took advantage of this opportunity, serving each
    1
    Under federal law, the district court had to screen Mr. Rachel’s suit
    for frivolousness, failure to state a valid claim, and immunity. Prison
    Litigation Reform Act, 28 U.S.C. '' 1915(e)(2)(B), 1915A(a)-(b). To
    facilitate this screening process, our circuit authorizes district courts to
    order prison officials to investigate an inmate’s allegations to determine
    whether they have any factual or legal basis. See Hall v. Bellmon, 
    935 F.2d 1106
    , 1109 (10th Cir. 1991). Because this authorization stems from
    Martinez v. Aaron, 
    570 F.2d 317
    (10th Cir. 1978), courts frequently refer
    to the resulting investigative report as a “Martinez report.”
    3
    defendant with separate discovery requests within six days of the opening
    of the discovery period. 2 But Mr. Rachel faced a dilemma: He needed to
    respond to the defendants’ dispositive motion by February 23, 2015, even
    though the defendants had until March 9, 2015 or later to respond to Mr.
    Rachel’s discovery requests.
    Mr. Rachel tried to avoid this dilemma by seeking an extension,
    explaining that he needed additional time to conduct discovery and to use
    the prison=s law library, where his use was limited to a few hours per week.
    The court did not rule on the extension requests by February 23, 2015,
    when Mr. Rachel=s response to the dispositive motion was due. So Mr.
    Rachel filed his response and planned to supplement it when he obtained
    the discovery responses. But he never obtained any responsive
    information. 3
    Without any opportunity for Mr. Rachel to conduct discovery, the
    magistrate judge recommended that the district judge deny an extension
    and grant summary judgment to the defendants, reasoning in part that Mr.
    Rachel had failed to furnish evidence of (1) deficiencies in his medical
    2
    R., Supp. Vol. 1 at 23, Reply to Defendants= Response (Mar. 9, 2015)
    (Doc. 46) (Mr. Rachel=s statement that he served the warden with discovery
    requests on February 5, 2015, and served the prison doctor and nurse with
    discovery requests on February 8, 2015).
    3
    See R., Supp. Vol. 1 at 21-24, Reply to Defendants’ Response (Mar.
    9, 2015) (Doc. 46) (stating more than a month after service of the
    discovery requests that responsive information had not yet been provided).
    4
    care or (2) the prison officials’ deliberate indifference. R., Vol. 1 at 624-
    27. These recommended rulings were adopted by the district judge. 
    Id. at 652-63.
    In our view, however, the district court should have granted Mr.
    Rachel additional time to respond to the defendants= dispositive motion.
    We review the denial of an extension of time for an abuse of
    discretion. Ellis v. Univ. of Kan. Med. Ctr., 
    163 F.3d 1186
    , 1193 (10th Cir.
    1999). Under this standard, we consider the rule and the facts before the
    district court.
    In district court, the governing rule allows an extension of time “for
    good cause.” Fed. R. Civ. P. 6(b)(1). This rule should be liberally
    construed to advance the goal of trying each case on the merits. See
    Hanson v. City of Okla. City, No. 94-6089, 
    1994 WL 551336
    , at *2 (10th
    Cir. Oct. 11, 1994) (recognizing that “courts often review Rule 6(b)(1)
    motions ‘liberally’” (citation omitted)); accord Ahanchian v. Xenon
    Pictures, Inc., 
    624 F.3d 1253
    , 1258-59 (9th Cir. 2010) (stating that Rule
    6(b) must be “‘liberally construed to effectuate the general purpose of
    seeing that cases are tried on the merits’” (citation omitted)); see also Fed.
    R. Civ. P. 1 (“[The Federal Rules] should be construed, administered, and
    employed . . . to secure the just, speedy, and inexpensive determination of
    every action and proceeding.”). A leading treatise similarly suggests that
    district courts should normally grant extension requests, made before the
    deadline, in the absence of bad faith by the requesting party or prejudice to
    5
    another party. 4B Charles Alan Wright, Arthur R. Miller & Adam N.
    Steinman, Federal Practice and Procedure ' 1165, at 605-08 (2015).
    To overcome the summary judgment motion, Mr. Rachel had to
    present evidence of an objectively serious medical need and prison
    officials’ deliberate indifference to this need. Mata v. Saiz, 
    427 F.3d 745
    ,
    752 (10th Cir. 2005). “Each step of this inquiry is fact-intensive.”
    Hartsfield v. Colburn, 
    491 F.3d 394
    , 397 (8th Cir. 2007); see also Leamer
    v. Fauver, 
    288 F.3d 532
    , 547 (3d Cir. 2002) (stating that claim involving
    deliberate indifference to an inmate’s treatment needs was “fact-intensive”
    and “require[d] further development of the record”). Because the issue is
    fact-intensive, “discovery may be important.” Bethune Plaza, Inc. v.
    Lumpkin, 
    863 F.2d 525
    , 533 (7th Cir. 1988).
    But Mr. Rachel had no opportunity to conduct discovery and obtain
    evidence before responding to the defendants’ dispositive motion. Until the
    defendants filed that motion, discovery had been stayed. R., Vol. 1 at 53.
    Thus, Mr. Rachel had only 21 days to request discovery and obtain answers
    before responding to the dispositive motion. 
    Id. at 54.
    This timing
    presented a dilemma for Mr. Rachel because the federal rules permit 30
    days to respond to discovery requests. Fed. R. Civ. P. 33(b)(2),
    34(b)(2)(A), 36(a)(3).
    The dilemma was compounded by Mr. Rachel’s limited access to the
    prison law library. The defendants’ dispositive motion included citations to
    6
    over 40 cases, along with various rules and statutes. In the 21 days Mr.
    Rachel had to respond, he not only had to draft and serve discovery
    requests, but also to respond to the defendants’ legal analysisCwhile able
    to use a law library for only a few hours per week. Meanwhile, Mr. Rachel
    was 71 years old, physically handicapped, experiencing health problems,
    and taking a variety of medications.
    An extension of time for Mr. Rachel would not have resulted in any
    prejudice to the defendants. They insisted that Mr. Rachel did not need
    discovery in light of the medical records furnished with the Martinez
    report. But Mr. Rachel argued that this report was missing material
    medical records and policies addressing medical treatment, and the
    defendants conceded that the report did not include all of the requested
    discovery. 4
    Seeking to avoid this one-sided set of information before the district
    court, Mr. Rachel filed a request for additional time 14 days before his
    response deadline was to expire. Because the motion was timely, he needed
    4
    See, e.g., R., Supp. Vol. 1 at 18, Response to Plaintiff’s Motion for
    Extension to Complete Discovery (Mar. 3, 2015) (Doc. 44) (stating that the
    Martinez report includes “the bulk of the discovery Plaintiff seeks”); 
    id. at 19
    (stating that the report “contains many of the documents and
    information Plaintiff is seeking in his discovery requests”); 
    id. (promising to
    provide “discovery responses relevant to any remaining claims” after the
    court’s ruling on the dispositive motion).
    7
    only to show good cause for the extension request. Fed. R. Civ. P. 6(b)(1). 5
    He did, and no one has questioned the presence of good cause for an
    extension of time. Mr. Rachel had no opportunity to pursue any discovery
    and had only a few hours per week to use the prison’s law library. But the
    magistrate judge did not address Mr. Rachel’s motion for an extension of
    time until the filing of the report and recommendation nearly two months
    after the response deadline.
    In these circumstances, we conclude that the denial of an extension
    constituted an abuse of discretion. Cf. Patty Precision v. Brown & Sharpe
    Mfg. Co., 
    742 F.2d 1260
    , 1265 (10th Cir. 1984) (“Because of the
    uncertainty created by the court’s failure to exercise its discretion, the
    likelihood of prejudice to the plaintiff and the current status of this case,
    5
    We need not, and do not, decide whether the result might have been
    different if Mr. Rachel had tried to forestall a ruling on summary judgment
    by filing an affidavit under Fed. R. Civ. P. 56(d). Mr. Rachel moved for an
    extension of time under Fed. R. Civ. P. 6(b)(1) because of the unique
    procedural circumstances of this case and his limited access to the law
    library. Such a motion does not require the filing of an affidavit. The
    defendants did not object to the motion on Rule 56(d) grounds, and the
    district court did not consider Rule 56(d) in denying the motion. Under
    these circumstances, we will not reach the discretionary Rule 56(d)
    question in the first instance. See Ashby v. McKenna, 
    331 F.3d 1148
    , 1151
    (10th Cir. 2003) (“[W]ith respect to a matter committed to the district
    court’s discretion, we cannot invoke an alternative basis to affirm unless
    we can say as a matter of law that it would have been an abuse of
    discretion for the trial court to rule otherwise.” (internal quotation marks
    omitted)).
    8
    we reverse the court’s grant of summary judgment and remand for the trial
    court to expressly consider plaintiff’s Rule 56(f) affidavit.”).
    The district judge interpreted Mr. Rachel’s request for more time to
    involve a complaint about the defendants’ refusal to answer discovery
    requests. Based on this interpretation, the judge concluded that Mr. Rachel
    should have filed a motion to compel months earlier. We respectfully
    disagree with the district judge’s interpretation of Mr. Rachel’s motion for
    an extension of time. 6 In his motion, Mr. Rachel was simply explaining
    why he needed more than 21 days to respond to the dispositive motion. At
    that time, he was not complaining about the defendants’ refusal to provide
    discovery within the 21-day period. Indeed, he could not have done so
    because the defendants had 30 days to respond to the discovery requests.
    By the time Mr. Rachel filed a reply in support of his motion for an
    extension, however, the defendants’ time to provide discovery responses
    had expired. Thus, in that reply, Mr. Rachel requested an order compelling
    the discovery responses so that he could supplement his response to the
    dispositive motion as needed.
    It would have been better, of course, for Mr. Rachel to file a separate
    motion to compel rather than ask for additional relief in his reply brief.
    Ultimately, however, Mr. Rachel filed his initial motion to obtain an
    6
    We do not fault the district judge. We realize that we have the luxury
    of 20-20 hindsight, which was not available to the district judge.
    9
    extension of time both because of the limitations on his use of the prison’s
    law library and the earlier prohibition on discovery. In our view, the
    district court should have granted that request. Cf. CenTra, Inc. v. Estrin,
    
    538 F.3d 402
    , 420 (6th Cir. 2008) (“Typically, when the parties have no
    opportunity for discovery, denying the Rule 56(f) motion and ruling on a
    summary judgment motion is likely to be an abuse of discretion.”).
    In light of this conclusion, we must reverse and remand for further
    proceedings on the defendants’ dispositive motion.
    III.   Mr. Rachel’s Other Appeal Points
    Mr. Rachel has also raised other appeal points. We address these
    points below because of the likelihood that they will recur on remand.
    A.   The district court did not err in failing to take corrective
    action with regard to deficiencies in the Martinez report.
    Mr. Rachel complains about deficiencies in the Martinez report. For
    example, he says that the report contained lies and omitted pertinent
    documents. These complaints led Mr. Rachel to object to the report in
    district court. The district court declined to rule on the objection and
    ultimately relied on the report when granting summary judgment to the
    defendants. According to Mr. Rachel, the district court should have
    required the prison officials to furnish documents incorrectly omitted from
    the Martinez report.
    10
    We disagree. Courts order the Martinez report not to provide
    discovery, but to aid in screening the complaint. See Gee v. Estes, 
    829 F.2d 1005
    , 1007 (10th Cir. 1987) (“The purpose of the Martinez report is to
    ascertain whether there is a factual as well as a legal basis for the
    prisoner=s claims.”).
    Mr. Rachel complains that the prison officials failed to submit all of
    the relevant documents. This omission was allegedly material and might
    have affected the district court=s screening. But on screening the
    complaint, the district court allowed Mr. Rachel to proceed with all of his
    claims. And on remand, Mr. Rachel can seek the missing documents
    through discovery. We have no need, at this stage, to address Mr. Rachel’s
    complaints about the district court’s failure to order supplementation of the
    Martinez report.
    B.    The district court did not err in declining to appoint
    counsel.
    Mr. Rachel moved for appointment of counsel and the district court
    denied the motion. This ruling did not constitute error.
    Courts are not authorized to appoint counsel in ' 1983 cases; instead,
    courts can only “request” an attorney to take the case. Prison Litigation
    Reform Act, 28 U.S.C. ' 1915(e)(1); see Mills v. Fischer, 
    645 F.3d 176
    ,
    177 n.3 (2d Cir. 2011) (“A district court is empowered only to ‘request’ an
    attorney to represent an [in forma pauperis] plaintiff, § 1915(e)(1), but
    11
    case law commonly refers to the arrangement as ‘appointed’ counsel.”); see
    generally Mallard v. U.S. Dist. Court, 
    490 U.S. 296
    , 309 (1989)
    (interpreting similar statutory language, in an earlier version of the statute,
    to prohibit “coercive appointments of counsel”). 7
    We review the district court’s denial of Mr. Rachel’s request for an
    attorney only for an abuse of discretion. Toevs v. Reid, 
    685 F.3d 903
    , 916
    (10th Cir. 2012). In considering whether the court acted within its
    discretion, we consider the merits of the claims, the nature of the claims,
    Mr. Rachel’s ability to present the claims, and the complexity of the
    issues. Rucks v. Boergermann, 
    57 F.3d 978
    , 979 (10th Cir. 1995). The
    court considered these factors and declined to request counsel for Mr.
    Rachel.
    This decision was reasonable. Each year, the district court receives
    hundreds of requests for legal representation and only a small number of
    attorneys are available to accept these requests. Accordingly, the district
    court must use discretion in deciding which cases warrant a request for
    counsel. To do otherwise would deprive clearly deserving litigants of an
    7
    Attorneys sometimes agree to accept these requests and sometimes
    decline. The difficulty often lies in the court’s inability to pay the attorney
    for his or her time or even to offer reimbursement for expenses. In the
    Western District of Oklahoma, for example, the court provides a limited
    fund with a general cap of $2,400 for the attorney’s out-of-pocket
    expenses. In re Expense Reimbursements in Civil Rights Cases, General
    Order at 2, No. 12-7 (Order Authorizing Reimbursement of Expenses from
    the Non-Appropriated Fund) (W.D. Okla. Dec. 4, 2012).
    12
    opportunity to obtain legal representation. The dilemma is unfortunate for
    litigants like Mr. Rachel. But the dilemma was not the district court’s
    fault; it was the product of the court’s lack of authority to compel legal
    representation or to reimburse attorneys for their time.
    As a result, we conclude that the district court did not abuse its
    discretion by denying Mr. Rachel’s motion for appointment of counsel.
    C.    The district court did not err in denying Mr. Rachel’s
    motion for appointment of a medical expert.
    After the defendants filed their dispositive motion, Mr. Rachel
    moved for appointment of a medical expert under Federal Rule of Evidence
    706(a). The district court denied his motion.
    Our review is confined to the abuse-of-discretion standard. See
    United States v. Sloan, 
    65 F.3d 861
    , 864 (10th Cir. 1995) (“A decision to
    deny, or grant, an application for expert services is a matter committed to
    the sound discretion of the district court and will not be disturbed on
    appeal absent a showing of prejudice.”); Duckett v. Mullin, 
    306 F.3d 982
    ,
    999 (10th Cir. 2002) (stating that the abuse-of-discretion standard applies
    to denial of a motion for appointment of an expert). In our view, the
    district court did not abuse its discretion in declining to appoint a medical
    expert.
    Though Federal Rule of Evidence 706(a) permits the district court to
    appoint a medical expert, courts rarely exercise this power. See 4 Jack B.
    13
    Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
    & 706.02[1], at 706-3 to -4 (2d ed. 2016) (stating that in practice, courts
    rarely appoint experts under Rule 706); 29 Charles Alan Wright & Victor
    James Gold, Federal Practice and Procedure ' 6304, at 469 (1997) (“[T]he
    exercise of Rule 706 powers is rare under virtually any circumstances.”).
    Some 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.” Reilly v. United States, 
    863 F.2d 149
    ,
    156 (1st Cir. 1988).
    When appointing medical experts, the court is to allocate payment
    between the parties. Fed. R. Evid. 706(c)(2). Mr. Rachel did not identify
    an independent expert and was unable to pay the district court’s filing fee.
    Thus, the court could appoint an expert only by identifying one on its own
    and directing the defendants to bear all of the costs. See Rowe v. Gibson,
    
    798 F.3d 622
    , 631-32 (7th Cir. 2015) (advising the district court to
    consider appointing a medical expert in a § 1983 case brought by an
    indigent prisoner while recognizing that “district courts don=t have budgets
    for paying expert witnesses” and “[m]ost prisons are strapped for cash”).
    The district court did not abuse its discretion because the nature of
    Mr. Rachel’s underlying claim is not sufficiently complicated to require an
    14
    independent medical expert. See Ledford v. Sullivan, 
    105 F.3d 354
    , 359
    (7th Cir. 1997) (upholding the denial of a medical expert for an
    inmate-plaintiff’s claim of deliberate indifference to serious medical needs
    because the determination of deliberate indifference was not sufficiently
    complicated to require a medical expert).
    Mr. Rachel also argues that he needed expert testimony to rebut the
    defendants’ arguments about the alleged adequacy of his medical
    treatment. “[B]ut it cannot follow that a court must therefore appoint an
    expert under Rule 706 whenever there are allegations of medical
    malpractice.” Gaviria v. Reynolds, 
    476 F.3d 940
    , 945 (D.C. Cir. 2007).
    As a result, we conclude that the district court did not abuse its
    discretion in denying Mr. Rachel’s motion for appointment of a medical
    expert.
    D.    The district court did not err in granting summary
    judgment to the defendants on the due process claim
    involving the grievance procedure.
    Mr. Rachel also appeals the grant of summary judgment on his claim
    involving the failure to provide a fair grievance procedure. In district
    court, Mr. Rachel clarified that he was bringing this claim under state law
    rather than under the federal constitution. The district judge interpreted the
    claim accordingly, holding that state law did not mandate any particular
    type of grievance procedure.
    15
    On appeal, Mr. Rachel does not address this rationale. Instead, he
    argues that state law creates a liberty interest. The existence of a liberty
    interest would be significant only if Mr. Rachel were claiming a
    deprivation of due process under the state or federal constitution. But Mr.
    Rachel did not allege a due process violation in federal district court. It is
    too late for him to do so on appeal for the first time. See Gorman v.
    Carpenters’ & Millwrights’ Health Benefit Tr. Fund, 
    410 F.3d 1194
    , 1202
    (10th Cir. 2005) (“[S]ound policy supports the proposition that an
    appellate court will not consider an issue raised for the first time on
    appeal.”).
    E.     On remand, the district court should revisit its ruling on the
    petition for an emergency injunction.
    Mr. Rachel filed a petition for an emergency injunction, asking for
    an order requiring prison officials to (1) send him to an outside medical
    specialist for gastrointestinal problems and (2) follow that specialist’s
    recommendations for medications and treatment. R., Vol. 1 at 56-59. The
    magistrate judge denied the petition as moot based on the award of
    summary judgment, and the district judge adopted that recommendation
    without further analysis. Because we have reversed the summary judgment
    ruling, Mr. Rachel’s petition should be examined upon remand.
    16
    F.    On remand, the district court should also revisit its ruling
    on the claims against the prison nurse.
    One of the defendants is a prison nurse and administrator, who
    allegedly contributed to the deficiencies in Mr. Rachel’s medical care and
    to the prison’s extended pill lines. The nurse was not served until April 1,
    2015, and she did not enter an appearance. See R., Supp. Vol. 1 at 26. But
    claims against her were dismissed on screening based on the award of
    summary judgment to the other defendants. Because we have reversed the
    summary judgment ruling, the claims against the prison nurse should be
    revisited on remand.
    IV.   The Court grants the motion for leave to proceed in forma
    pauperis.
    With the appeal, Mr. Rachel seeks leave to proceed in forma
    pauperis. He is unable to pay the filing fee, and this appeal is not
    frivolous. Accordingly, we grant Mr. Rachel’s request. But we remind Mr.
    Rachel that this status eliminates only the need for prepayment of the
    filing fee. Mr. Rachel remains obligated to pay the filing fee in monthly
    installments. See Prison Litigation Reform Act, 28 U.S.C. ' 1915(b).
    17