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Albert Spotted Wolf v. Leann Bertsch

July 31, 2012

ALBERT SPOTTED WOLF, PLAINTIFF,
v.
LEANN BERTSCH, ROBYN SCHMALENBERGER,
KATHY BACHMEIER, AND JOHN J. HAGAN, DEFENDANTS.



The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge

Order re Plaintiff's "Motion to Amend Defendant," "Request to Defendant's for Further Discovery," "Motion for Order Compelling Discovery," and "Motion to Stay Defendant's Motion for Summary Judgment"

On March 20, 2012, the plaintiff, Albert Spotted Wolf ("Spotted Wolf") filed a "Motion to Amend Defendant," a "Request to Defendant's for Further Discovery Materials Not Disclosed by Defendants," and a "Motion to Stay Defendant's Motion for Summary Judgment," which were filed by Albert Spotted Wolf ("Spotted Wolf"). On May 1, 2012, he filed a "Motion for Order Compelling Discovery."

I. BACKGROUND

Spotted Wolf is a double amputee presently incarcerated at the North Dakota State Penitentiary (NDSP). He is suing the defendants in both their individual and official capacities for failing to provide him with prosthetic legs. He alleges violations of the Eighth Amendment, the ADA, and the Rehabilitation Act. He seeks injunctive relief along with $5,000,0000 in monetary damages. (Doc. Nos. 17, 17-1).

On August 4, 2011, the court issued a scheduling and discovery order. In relevant part, the order provided the following deadlines: September 15, 2011, for Rule 26(a)(1) disclosures; February 1, 2012, for fact discovery; and December 1, 2012, for motions to amend the pleadings and to join additional parties. (Doc. No. 12).

On February 24, 2012, defendants filed a Motion for Summary Judgment asserting a number of defenses, including that Spotted Wolf's disabilities have been properly accommodated and that there has been no violation of the Eighth Amendment. (Doc. No. 19).

Thereafter, Spotted Wolf filed the motions now before the court.

II. DISCUSSION

A. Motion to add an additional party defendant.

Spotted Wolf received a copy of a nursing note as one of the exhibits supporting the defendants' summary judgment motion. The note read as follows:

12/30/11

Memo to medical payments Committee Albert requests bilateral leg prosthesis; we had purchased prosthesis for this inmate during his last incarceration, and he lost the prosthesis at a party. The cost of such item is between $6000-$7000. Albert is doing fine with activities of daily living, and uses the wheelchair to get around. Refer to Dr. Hagan's soap notes regarding this request if necessary. Please advise. Beth Taghon, RN, NDSP Director of Nursing. (Doc. Nos. 20-11, 21).

Spotted Wolf disputes the veracity of nurse Taghon's note. Believing that defendants' decision to deny his request for prostheses was based in part on the note, he filed a motion on March 20, 2012, seeking leave to join Taghon as a defendant.

Defendants acknowledge that Taghon's note is inaccurate. They have filed an affidavit in support of their Motion for Summary Judgment wherein defendant Bachmeier attests that, contrary to Taghon's note, the Department of Corrections and Rehabilitation ("NDDOCR") had not provided Spotted Wolf with prosthetics during his prior incarceration. See Docket No. 20-2 ΒΆ 7. Defendants nevertheless oppose ...


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