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Abdul-Jabbar v. West

February 28, 2008

SAMUEL ABDUL-JABBAR, PLAINTIFF,
v.
SUPERINTENDENT CALVIN E. WEST, ELMIRA CORRECTIONAL FACILITY, (CONSENT) MARY J. HOPKINS, NURSE ADMINISTRATION, M.D. WESLEY K. CANFIELD, AND JEFFREY FLETCHER, FSA # 2, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

On July 26, 2006, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1) to proceed before the undersigned. The matter is presently before the court on Plaintiff's Motion for Witnesses and Expert Witnesses filed July 23, 2007 (Doc. No. 46).

BACKGROUND and FACTS*fn1

Plaintiff Samuel Abdul-Jabbar ("Plaintiff"), proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on May 26, 2005, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment while incarcerated at Elmira Correctional Facility ("Elmira" or "the correctional facility"). In particular, Plaintiff claims that Defendants, including Elmira Nurse Administrator Mary J. Hopkins ("Hopkins"), and Wesley K. Canfield, M.D. ("Dr. Canfield"), both members of the correctional facility's medical staff, failed to treat physical injuries sustained on February 28, 2005, when Plaintiff, while pushing a mess hall garbage wagon to the correctional facility's dumpster, fell on his back, and twisted his foot and knee. On May 26, 2005, Plaintiff moved for leave to proceed in forma pauperis (Doc. No. 2), and that motion was granted on March 24, 2006 (Doc. No. 6). Defendant Hopkins, who was served with the summons and Complaint on April 3, 2006, filed an answer on April 14, 2006 (Doc. No. 8).

A Scheduling Order filed November 16, 2006 (Doc. No. 30) ("the Scheduling Order"), established July 31, 2007 as the deadline for Plaintiff to identify any expert witnesses. By order filed March 6, 2007 (Doc. No. 38), the undersigned found good cause to extend the time in which to serve the summons and Complaint upon Dr. Canfield and, summons was reissued for Dr. Canfield on March 7, 2007. Dr. Canfield was served on May 3, 2007, and filed an answer on May 18, 2007 (Doc. No. 45).

On July 23, 2007, Plaintiff filed the instant motion (Doc. No. 46) ("Plaintiff's motion") requesting an order directing the U.S. Marshal to serve subpoenas on nine individuals, all employees of New York's Department of Correctional Services ("DOCS"), whom Plaintiff describes as either a "witness" or an "expert witness." Plaintiff's motion is supported by the attached Affidavit of Plaintiff in Support of Motion for Witness [sic], and Expert Witness for the Plaintiff ("Plaintiff's Affidavit"). In particular, those Plaintiff seeks to have subpoenaed to testify on his behalf at trial include Defendants Dr. Canfield and Hopkins, as well as W. Kelly, M.D. ("Dr. Kelly"), A.Graceffo, M.D. ("Dr. Gracefffo"), Nurse John ("John"), Officer Kring ("Kring"), Sergeant Ever ("Sgt. Ever"), Mr. Green, M.D. ("Dr. Green"), and Steven W. Winter, M.D. ("Dr. Winter").

In opposition to Plaintiff's motion, Defendants filed on August 10, 2007, the Declaration of Assistant Attorney General Ann C. Williams in Response to Plaintiff's Motion for Witnesses and Expert Witnesses (Doc. No. 48) ("Defendants' Response"). In further support of Plaintiff's motion, Plaintiff filed on August 30, 2007 a Notice of Motion in Opposition to Defendants' Response to Plaintiff's Motion for Expert Witnesses and Witnesses (Doc. No. 49) ("Plaintiff's Reply"). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's motion is DENIED in part and DISMISSED as premature in part.

DISCUSSION

Preliminarily, Defendants assert that

[i]t is unclear from a review of the instant motion whether Plaintiff is seeking an order from the court directing the individuals identified in the Motion to testify on Plaintiff's behalf as expert witnesses, or whether the Plaintiff is seeking an Order from the Court directing the Marshal to serve subpoenas on each of the individuals identified in the Motion.

Defendants' Response ¶ 5.

Defendants also contend that "Plaintiff has identified 9 individuals as expert witnesses in the Motion, including the Defendants," Defendants' Response ¶ 6, and that Plaintiff's motion should be denied because Plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 26(a)(2)(A), (B) and (C) that a party seeking to present expert testimony must disclose, in addition to the identity of each expert witness, "a written report prepared and signed by the expert witness, at a time and in the sequence directed by the court or at least 90 days before trial date." Id. ¶ 8. According to Defendants, because Plaintiff has failed to disclose such reports by the July 31, 2007 expert disclosure deadline established by the Scheduling Order, Plaintiff is now precluded from calling at expert witnesses at trial any of the nine individuals identified as such in Plaintiff's motion. Id. ¶¶ 9-10. According to Defendants, although Plaintiff has been granted in forma pauperis status, nothing within ...


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