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CAUSE N0.07-l4-00397-CV
MARCUS EVERETTE HARPER v § COURT OF APPEALS Plaintiff
V; § SEVENTH DISTRICT OF
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE §POTTER COUNTY,TEXAS U Defendant's ET,.AL gm §§ x
l
MoTIoN FOR AMEND JAN 23 2015 !/ ky
AU
TO ‘ "?"Y'VEN\T_H grown 0:'~' wm ` 5 `}"C`? " ' O. -: ~,"= c;»: INTERLOCUTORY APPEAL NC~
Comes now Marcus E.Harper, hereafter referred to as Plaintiff would like to Amend this request for apointment of counsel, and medical negligence, negligence, or gross negligence, also this cause
No. O7-l4-OO397-CV to his motion that was filed on November 14,2014.
On 12-31-08 Plaintiff filed this suit because he was serverely burnded and disfigured for life; also the medical doctor, and staff on Bill Clements Unit failed to follow medical care instruction that cause his leg to get infected so further medical care was need- ed to contain the infection. He was rushed back to the medical Burn Center in lubbuck where skin graft was needed to contain the infec-
tion. Under medical negligence, malpractice, and gross negligence.
On 30th dat of Oct, 2014 Honorable Judge Ana Estevez dismissed this portion malpractice in error claiming that TX.Civ.Prac.and Remedies Code 74.351 expert report requirement was not met by me.
I filed a motion to object under article 74.352 Discovery sanc- tion if the defendants do not come with the discovery within forty five days I can file sanctions from the judge.(R.l/p.8-9)
The defendants stated that I had to Hire an expert report(R.l p.9:15-22). '
I The rule provide that responses and objection to requests for production of documents are to be served within 30_days of the re~ quest unless Court grants a shorter or longer time. Rule 34,Fed.R. Civ. P. the defendants however, wiated almost 4 years before respond- ing, with obtaining or even seeking permission from the court or
agreement from the Plaintiff,for this delay.
II
The allegation of denial of medical care amount to "intentionally
interfering with the treatment once prescribed," which the supreme Court has specifically cited as an example of unconstitional deli- berate indiference to prisoner'medical needs Estelle v.Gamble 429 U.S.97 105,97 S,ct. 285 (l976)
~Medical need; Some Courts have held that a serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even alay person would easily recog- nize the necessity for a doctors attention. Hill v.Dekalb Regil Youth Det.Ctr . 40 F.3d ll76,1187 (llth Cir.l994) Courts usually agree that the medical nedd must be"one that if left unattended, poses a sud- stantial risk of serious harm." Taylor v. Adams, 22l F.3d.1254,1258 (llth Cir.200). to overcome qualified immunity (l) your rights were violated: (2) the right that was violated was clearly established; and (3) the defendant was personally responsible for the violation of your rights.
Under Texas Case Law,the fact that an action for on intentional Tort is barred, does not prevent an injured Party from pursuing a
claim for simple negligence arising out of the same fact Hucher v.
City of Beaumont E.D. TeX.ZOOl, 144 F.Supp. 2d.696 at 708. There is no impediment to a proper characterization of negligence see Huong 96l F.Supp at 1008. where the fact may show that duty improperly or negligently use tangible personal property during care that resulting
in an injury. III
‘Plaintiff request appointment of counsel for an indigent liti-
gant," the factual complexity of the case,the ability of the indi- `gent to investigate facts, existence if conflicting testimony, to present his claim" Abdullah V.Gunter,949 F.2d 1032, 1035 (8th cir. l99l). In adition Court have suggested that most important factor is whether the case appears to have merit, Carmona v. U.S. BUreall of Prisons 243 F.3d.629, 632 (2d Cir.2001) n
.Plaintiff has infirmed to trial Court that this is also, Medical care claim; it will need medical expert witness and to cross-examine medical witness (see motion 12-3l-08). The presence of medical or other issues requiring expert testimony supports the appointment of counsel Mantqomerv v} Pinchak 294 F.3d.492,503-O4 (3rd Cir.2002); Moore v.Madus, 976 F2d 268, 272 (5th CIR.l992), Jackson v.CountV of Mclean 953 F.2d.lO70,lO73 (7th Cir.l992)
Plaintiff is incarcerated and has no ability to investgate the
' 2
facts. For example, he is unable to identify,locate,and interview inmates and medical witness who were at the seen of incident. see Parham v.Johnson 126 F.3d 454,459 (3d Cir.l997) (holding counsel should have been oppointed because prisoner's lack of legal exper- iense and the complex discovery rules clearly put him at a dis ad- vantage in countering the defendant's discovery tactics... This discovery rule prevented him from hiring an expert report., but however there is a doctor physician repdg that clearly states med- ical staff failed to follow wedical instruction that cause my in- fection. the existence of these credibility issues supports the a- appointment of counsel Steele v.Shan 87 F.3d 1266, 1271 (llth.Cir. 1996).
Hendricks v.Coughlin, 114 F.3d 390,394 (2d Cir.l997) (holding complexity of supervisory liability supported appointment of counsel In adition, the plaintiff has asked for a jury trial,which requires mush greater legal skill than the plaintiff has or can develop. Solis v. County of Los Angeles, 514 F.3d.946,958 (9th Cir.2008) (prisoner with eighth grade education and no legal trianing is "ill~suited" to conduct a jury trial.
Plain language statute requiring submission of expert report at outset of (Health Care Provider Liability)Claim contamplates that the expert's opinions may be Amended or supplemented as discovery is completed in the lawsuit.Schmidt v.Dobose 259 S.W.3d 214 (App.
9th Dist.2008). Plaintiff requested counsel to assist him in pre paring and
filing an expert re port in support of his health care liability action against prison. Unlike in Banknead v.Spence 314 S.W.3d 464 he did not request counsel until the eve of the statutory deadline meaning any lack of meaningful time laid solely at inmate's feet
befcause of his delay in requesting the appointment of counsel.
IV Discovery 74.351 NOTE: 74 In a Health Care Liability claim oral depositions of parties are barred and only two oral deposition are allowed before the expert report is serve In Re Lumsden 291 S.W.3d 456 (App.14 dist. 2009)
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SE\/ENTH COUFI'E OF APPEALS `vf§\/§.'~\N LONG, CE-E.RK
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CAUSE N0.07-l4-00397-CV
MARCUS EVERETTE HARPER v § COURT OF APPEALS Plaintiff
V; § SEVENTH DISTRICT OF
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE §POTTER COUNTY,TEXAS U Defendant's ET,.AL gm §§ x
l
MoTIoN FOR AMEND JAN 23 2015 !/ ky
AU
TO ‘ "?"Y'VEN\T_H grown 0:'~' wm ` 5 `}"C`? " ' O. -: ~,"= c;»: INTERLOCUTORY APPEAL NC~
Comes now Marcus E.Harper, hereafter referred to as Plaintiff would like to Amend this request for apointment of counsel, and medical negligence, negligence, or gross negligence, also this cause
No. O7-l4-OO397-CV to his motion that was filed on November 14,2014.
On 12-31-08 Plaintiff filed this suit because he was serverely burnded and disfigured for life; also the medical doctor, and staff on Bill Clements Unit failed to follow medical care instruction that cause his leg to get infected so further medical care was need- ed to contain the infection. He was rushed back to the medical Burn Center in lubbuck where skin graft was needed to contain the infec-
tion. Under medical negligence, malpractice, and gross negligence.
On 30th dat of Oct, 2014 Honorable Judge Ana Estevez dismissed this portion malpractice in error claiming that TX.Civ.Prac.and Remedies Code 74.351 expert report requirement was not met by me.
I filed a motion to object under article 74.352 Discovery sanc- tion if the defendants do not come with the discovery within forty five days I can file sanctions from the judge.(R.l/p.8-9)
The defendants stated that I had to Hire an expert report(R.l p.9:15-22). '
I The rule provide that responses and objection to requests for production of documents are to be served within 30_days of the re~ quest unless Court grants a shorter or longer time. Rule 34,Fed.R. Civ. P. the defendants however, wiated almost 4 years before respond- ing, with obtaining or even seeking permission from the court or
agreement from the Plaintiff,for this delay.
II
The allegation of denial of medical care amount to "intentionally
interfering with the treatment once prescribed," which the supreme Court has specifically cited as an example of unconstitional deli- berate indiference to prisoner'medical needs Estelle v.Gamble 429 U.S.97 105,97 S,ct. 285 (l976)
~Medical need; Some Courts have held that a serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even alay person would easily recog- nize the necessity for a doctors attention. Hill v.Dekalb Regil Youth Det.Ctr . 40 F.3d ll76,1187 (llth Cir.l994) Courts usually agree that the medical nedd must be"one that if left unattended, poses a sud- stantial risk of serious harm." Taylor v. Adams, 22l F.3d.1254,1258 (llth Cir.200). to overcome qualified immunity (l) your rights were violated: (2) the right that was violated was clearly established; and (3) the defendant was personally responsible for the violation of your rights.
Under Texas Case Law,the fact that an action for on intentional Tort is barred, does not prevent an injured Party from pursuing a
claim for simple negligence arising out of the same fact Hucher v.
City of Beaumont E.D. TeX.ZOOl, 144 F.Supp. 2d.696 at 708. There is no impediment to a proper characterization of negligence see Huong 96l F.Supp at 1008. where the fact may show that duty improperly or negligently use tangible personal property during care that resulting
in an injury. III
‘Plaintiff request appointment of counsel for an indigent liti-
gant," the factual complexity of the case,the ability of the indi- `gent to investigate facts, existence if conflicting testimony, to present his claim" Abdullah V.Gunter,949 F.2d 1032, 1035 (8th cir. l99l). In adition Court have suggested that most important factor is whether the case appears to have merit, Carmona v. U.S. BUreall of Prisons 243 F.3d.629, 632 (2d Cir.2001) n
.Plaintiff has infirmed to trial Court that this is also, Medical care claim; it will need medical expert witness and to cross-examine medical witness (see motion 12-3l-08). The presence of medical or other issues requiring expert testimony supports the appointment of counsel Mantqomerv v} Pinchak 294 F.3d.492,503-O4 (3rd Cir.2002); Moore v.Madus, 976 F2d 268, 272 (5th CIR.l992), Jackson v.CountV of Mclean 953 F.2d.lO70,lO73 (7th Cir.l992)
Plaintiff is incarcerated and has no ability to investgate the
' 2
facts. For example, he is unable to identify,locate,and interview inmates and medical witness who were at the seen of incident. see Parham v.Johnson 126 F.3d 454,459 (3d Cir.l997) (holding counsel should have been oppointed because prisoner's lack of legal exper- iense and the complex discovery rules clearly put him at a dis ad- vantage in countering the defendant's discovery tactics... This discovery rule prevented him from hiring an expert report., but however there is a doctor physician repdg that clearly states med- ical staff failed to follow wedical instruction that cause my in- fection. the existence of these credibility issues supports the a- appointment of counsel Steele v.Shan 87 F.3d 1266, 1271 (llth.Cir. 1996).
Hendricks v.Coughlin, 114 F.3d 390,394 (2d Cir.l997) (holding complexity of supervisory liability supported appointment of counsel In adition, the plaintiff has asked for a jury trial,which requires mush greater legal skill than the plaintiff has or can develop. Solis v. County of Los Angeles, 514 F.3d.946,958 (9th Cir.2008) (prisoner with eighth grade education and no legal trianing is "ill~suited" to conduct a jury trial.
Plain language statute requiring submission of expert report at outset of (Health Care Provider Liability)Claim contamplates that the expert's opinions may be Amended or supplemented as discovery is completed in the lawsuit.Schmidt v.Dobose 259 S.W.3d 214 (App.
9th Dist.2008). Plaintiff requested counsel to assist him in pre paring and
filing an expert re port in support of his health care liability action against prison. Unlike in Banknead v.Spence 314 S.W.3d 464 he did not request counsel until the eve of the statutory deadline meaning any lack of meaningful time laid solely at inmate's feet
befcause of his delay in requesting the appointment of counsel.
IV Discovery 74.351 NOTE: 74 In a Health Care Liability claim oral depositions of parties are barred and only two oral deposition are allowed before the expert report is serve In Re Lumsden 291 S.W.3d 456 (App.14 dist. 2009)
Stay of discovery in heath care liability claims imposed by the Texas Medical Liability Act (TMLA) Rule allowing depositions before suits. In Re Allan (App.lZ Dist.2006) 191 S.W.3d 483,at 487,249 S.W 3d 416 Granted.
Stay of discovery under the (TMLA) pending Plaintiff filing of expert report extended to pretrial depositions of emergency care physicians, despite Plaintiff's contention that while deviation from the stanard of ordinary care may be gleaned from medical re- cords, the wilful and wanton negligence standard for emergency care under the statute required depositions. InRe Memorial Hermann Hosp. System (App.14 Dist 2006)209 S.W.3d 835. Pretrial Procedure 62.
Under rule 74.351 (s) (l) written discovery Until a claimant has served the expert report and curriculum vitae as requied all dis- covery in a health care liability claim is stayed except for the acquisition by the claimat of information, including medical or hospital records or other documents or tangible things, related to the petien's health care throgh discovery depositions at 840. Sec~ tion 74.351 `oes not stay other, less costly form of covery Chapter 74 requires health care defendants to comply with the discovery procedures setout in the legislation. See Ann 74.352 Tex.Civ.Prac.
& Rem.Code once a clim is filed. at84l.
CONCLUTION Plaintiff request that the Defendant's be reinstated under neg- ligence that they were uncostitional deliberate indiference to plaintiff medical needs (See dicovery 070). _ The defendant's failed to comply with discovery 74.352 within the time frame allowed (see volume l p.l-18).
Also request counsel to serve expert report under 74.351(s) that two depositions may be taken before expert report is served. PRAYER For all the above reasons stated plaintiff request that this cause
be reversed and the defendant's be made to answer.
CERTIFICATE OF SERVICE I,do hereby certify that a true and correct copy of this document was served upon the defendant's by placement of it in the William Clements U.S. mail drop box postage Pre-paid, addressed to the state of Texas attorney General P.O.box 12548 Austin Texas 78711~ 2548 , also to trial Court District clerk Caroline Woodburn Potter
County P.O.Box 9570 Amarillo Tx,79105-9570
All of the above is true and correct to the best of the Plain~ tiff' s knowledge and recollection,sworn under penalty of perjury this 19 day January 2015. Marcus Harper #692332, Bill Clem s Unit, 9601 spur 591, Amarilio Tx 79107. . , , ' , j
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