Wilborn v. Trant

          MEMORANDUM OPINION ^[1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Don Mitchell Wilborn (“Wilborn”), a prisoner proceeding pro se, brings this legal malpractice action against Defendants Douglas A. Trant (“Trant”) and Whitt, Cooper, Trant & Hendrick, PA. (the “Firm”). (Doc. 1). Defendants have moved for summary judgment on the basis Wilborn has not provided expert testimony in support of his claim, as required by Alabama law.^[2] (Doc. 158). Wilborn has responded in opposition, (doc. 182), and Defendants have filed a reply, (doc. 188). For the reasons stated below, the motion is GRANTED.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         IT. Background^[3]

         Wilborn, who is a federal prisoner incarcerated in the Federal Correctional Institution in Estill, South Carolina (“FCI Estill”), filed the complaint in this action on November 16, 2015, ^[4]alleging Defendants, an attorney and a law firm, committed legal malpractice in representing him in his federal postconviction proceeding under 28 U.S.C. § 2255.^[5] (Doc. 1). Wilborn failed to pay the filing fee or file a motion for leave to proceed in forma pauperis, and the undersigned ordered him to correct this deficiency. (Doc. 2). On December 10, 2015, Wilborn filed a motion for leave to proceed in forma pauperis and an amended complaint. (Docs. 3 & 4). The undersigned granted the motion for leave to proceed in forma pauperis and ordered service of the amended complaint on Defendants. (Docs. 5 & 8). Defendants answered the amended complaint on February 29, 2016. (Doc. 15). On April 8, 2016, the undersigned entered a scheduling order setting the deadline for Wilborn's expert disclosures at August 8, 2016, and the dispositive motion deadline at November 8, 2016. (Doc. 23).

         A. Initial Discovery Issues

         On April 8, 2016, at Wilborn's request, the Clerk of Court issued a subpoena directing nonparty Laura Hodge (“Hodge”), an Assistant United States Attorney for the Northern District of Alabama, to produce “All discovery materials in United States v. Wilborn, 4:11-cr-00470-VEH-HGD-1, including but not limited to, audio recordings, video surveillance, statements of codefendants (Form 302s): to be provided in CD/DVD format, accessible in Quick View Plus software, where available.” (Doc. 48 at 4).

         On June 9, 2016, Wilborn filed motions to compel production by nonparties Cullman County Sheriff Matt Gentry (“Gentry”) and Assistant United States Attorney Laura Hodge (“Hodge”). (Docs. 47, 48 & 49). The undersigned entered separate orders to show cause for each of these motions. (Docs. 51, 52 & 53). On June 17, 2016, the Cullman County Sheriff's Office filed a motion to quash the subpoena directed to Gentry. (Doc. 54).

         On June 14, 2016, Wilborn filed a motion to extend the deadlines in the scheduling order. (Doc. 55). The motion was received by the court on June 20, 2016. (See id.). Wilborn's motion specifically requested sixty to ninety days of additional time, and particularly noted his looming expert witness disclosure deadline. (Id. at 6). Because of the pending motions to compel and quash, the undersigned suspended all deadlines during those motions' pendency. (Doc. 57).

         On June 27, 2016, the undersigned denied the motion to compel directed to Hodge without prejudice, as it appeared that Wilborn had not complied with the Department of Justice's regulations in requesting material. (Doc. 60). The other motions remained pending.

         On August 23, 2016, the undersigned held a telephone conference to discuss the pending motions. At that conference, Defendants suggested that, because this legal malpractice action requires Wilborn to offer expert testimony on the standard of care, it would be appropriate to defer ruling on the pending motions until there was some indication that Wilborn would actually be able to retain an expert witness and offer that testimony. The undersigned agreed. Therefore, on August 24, 2016, the undersigned ordered Wilborn to designate an expert on the applicable legal standard of care by September 23, 2016, or show cause why he had not done so. (Doc. 75). The undersigned deferred ruling on the pending discovery motions until Wilborn made this designation. (Id.).

         B. Wilborn's Expert Designation

         Wilborn responded to this order on August 31, 2016, arguing the order was ineffective because all deadlines in the case had been suspended by previous order, and that he could not reasonably submit an expert report without the discovery that was the subject of these motions to compel. (Doc. 77). On September 15, 2016, in an order on several additional discovery motions, the undersigned informed Wilborn he need not submit an expert report, only designate an expert; the undersigned reminded Wilborn the September 23, 2016 deadline was still in effect. (Doc. 84 at 3-4).

         Wilborn submitted two documents on September 23, 2016. The first of these was a status update indicating Wilborn had consulted with two experts and attempted to contact another, but neither of them were able to review materials and provide a report by the deadline; consequently, he requested an additional thirty to forty-five days to make his designation. (Doc. 86). The second was a purported expert designation, which was a list of experts Wilborn designated “subject to their review of all discovery materials and approval, and subject to revision and/or substitution of this designation, ” as well as “any other expert witness identified after this filing.” (Doc. 87). On October 7, 2016, finding the latter document “so non-committal that it cannot reasonably be considered a designation, ” the undersigned struck it. (Doc. 89 at 2). In the same order, the undersigned granted Wilborn an additional thirty days to designate his expert, notwithstanding it did not appear Wilborn had been diligent in seeking out an expert. (Id. at 2-3).

         On November 4, 2016, Wilborn provided another status update. (Doc. 97). In that update, Wilborn submitted a number of attempts to communicate with attorneys, none successfully securing one as an expert witness. (Id.). Wilborn requested an additional thirty days to designate his expert. (Id.). The undersigned granted that request. (Doc. 99).

         On December 16, 2016, Wilborn designated Dennis W. Hartley (“Hartley”) as an expert witness. (Doc. 100). Wilborn also designated Mark I. Harrison and Scott Harwell, but acknowledged neither had been retained; Harrison could not be retained until Wilborn secured counsel, and Harwell could not be retained until his fee was paid. (Id.). Wilborn attached a letter from Hartley in which Hartley stated he had agreed to provide an expert report. (Doc. 100-1). Wilborn also filed a supplement to his designation on December 21, 2016, in which he attached an additional letter from Hartley dated prior to Wilborn's expert designation deadline and confirming Hartley's agreement to review the discovery concerning Wilborn's former counsel's performance. (Doc. 101).

         On March 6, 2017, in an omnibus order, the undersigned denied Defendants' motion to strike Wilborn's expert designation, (doc. 102). (Doc. 108 at 11-12). In the same order, the undersigned disposed of the pending motions to compel and quash. (Id. at 1-10).

         C. Subsequent Discovery Issues and Appeal

         On March 17, 2017, Wilborn renewed his motion to compel production by Hodge. (Doc. 109). Hodge responded with a motion to quash. (Doc. 115). After briefing on the motion, (docs. 117, 118, 119, 120, 121 & 122), and a telephone conference, the undersigned denied Wilborn's motion to compel on June 12, 2017. (Doc. 125). In that order, the undersigned found, pursuant to the limited review available under the “exceedingly deferential” standard under which a district court must review a federal agency's refusal to produce material in response to a third-party subpoena, see Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009), that the U.S. Attorney's Office had not abused its discretion under Department of Justice regulations by declining to produce much of the material Wilborn had requested. (Doc. 125 at 6-7). Rejecting Wilborn's request for a protective order to alleviate the U.S. Attorney's Office's concerns in producing the material, the undersigned noted that, although Wilborn had premised his need for the information he sought (i.e., the discovery in his criminal case) on his inability to submit an expert report without it, he had never explained in any way the material's relevance to the allegations in this case, which is premised on postconviction representation by different counsel. (Id. at 9-10).

         Following this order, the undersigned entered a new scheduling order. (Doc. 127). After Wilborn requested on August 7, 2017, the scheduling order be modified due to his inability to review discovery material due to FCI Estill policies, his inability to communicate with his expert due to issues with the facility's copy machine, and closures to the law library and word processing equipment, (see doc. 130), the undersigned modified that scheduling order on October 5, 2017. (Doc. 133). As a result, Wilborn's expert reports under Fed.R.Civ.P. 26(a)(2)(B) were due by December 8, 2017, and the dispositive motion deadline was extended to February 8, 2018. (Id.).

         On December 11, 2017, this court received a notice of interlocutory appeal, ostensibly filed by Wilborn on August 9, 2017. (Doc. 142). The notice, which Wilborn had filed in the Eleventh Circuit, was stamped “December 1, 2017.” (Id.). The subject of Wilborn's appeal was the undersigned's June 12, 2017, denial of his motion to compel, (doc. 125).

         With the appeal pending, Defendants filed the instant motion for summary judgment, premised on Wilborn's failure to come forward with expert testimony, on February 6, 2018. (Doc. 158). The undersigned set a briefing schedule on the motion, with Wilborn's response due by February 27, 2018. (Doc. 159). On February 12, 2018, citing the appeal, Wilborn moved to suspend all deadlines. (Doc. 160). Wilborn also stated he had not received a copy of the motion for summary judgment. (Id.). Although the undersigned noted that the appeal was likely frivolous because the Eleventh Circuit lacked jurisdiction over it and that the appeal only questionably related to the motion for summary judgment, on February 21, 2018, the undersigned granted Wilborn's motion to the extent Wilborn's response deadline was suspended during the pendency of the appeal. (Doc. 162). Two days later, on February 23, 2018, the Eleventh Circuit sua sponte dismissed Wilborn's appeal for lack of jurisdiction. (Doc. 163).

         D. Wilborn's Response to the Motion for Summary Judgment

         On February 28, 2018, the court received a motion for an extension of time to respond to the motion for summary judgment filed by Wilborn on February 22, 2018, prior to receiving either the order suspending the response deadline or the Eleventh Circuit's order. (Doc. 164). In that motion, Wilborn again stated he had not received a copy of the motion for summary judgment. (Id.). On March 5, 2018, the undersigned received correspondence from counsel for Defendants to Wilborn, enclosing another copy of the motion for summary judgment; that correspondence was made a part of the record. (Docs. 165 & 165-1). The undersigned then set a telephone conference to discuss Wilborn's issues receiving mail from the court and from Defendants, as well as a deadline to respond to the motion for summary judgment. (Doc. 166).

         Prior to the telephone conference, on March 13, 2018, Wilborn moved again to stay all deadlines in this case, citing the fact he had filed a motion to reconsider in the Eleventh Circuit and arguing he should be permitted a stay until at least the expiration of time to petition the United States Supreme Court for a writ of certiorari.^[6] (Doc. 167). At the March 21, 2018, telephone conference, Wilborn informed the court he had finally received a copy of the motion for summary judgment. Wilborn requested twenty-one additional days to respond to the motion for summary judgment. The same day, the undersigned denied the motion to stay but granted Wilborn thirty days - nine more than he had requested - to oppose the motion for summary judgment; this made Wilborn's response due by April 20, 2018. (Doc. 168 at 1). To address Wilborn's alleged difficulties receiving mail from the court, and consistent with Wilborn's representations and the representations of the Bureau of Prisons (“BOP”) for how mail is to be designated as legal mail, the undersigned directed the Clerk to designate the order “Legal Mail - Open only in the presence of the inmate.” (Id. at 2). No. opposition to the motion for summary judgment was timely received by the court.

         On May 18, 2018, the undersigned received an email from counsel for the BOP regarding Wilborn's attempts to schedule depositions, which was made a part of the record. (Docs. 171 & 171-1). Wilborn moved for leave to respond to the email on May 22, 2016, and in that motion stated he had not received a copy of Defendants' reply to his response in opposition to their motion for summary judgment, which he stated was “currently before the Court.” (Doc. 173 at 2-3). Noting that the court had not received a copy of Wilborn's response and that it was not before the court, the undersigned provided Wilborn until June 13, 2018 to refile his response. (Doc. 174). Again, this order was marked “Special Mail - Open only in the presence of the inmate.”^[7] (Id. at 1).

         Rather than refiling his response, on June 12, 2018, Wilborn filed a “Supplemental Response in Opposition to Motion for Summary Judgment.” (Doc. 175). That supplemental response stated: “Mr. Wilborn does not wish to waive, or forfeit, any argument that the Defendants have waived, or forfeited, their right to respond by failing to timely file a reply to Mr. Wilborn's response in opposition to motion for summary judgment.” (Id. at 1-2) (emphasis in original). Wilborn further purported to “incorporate by reference herewith his response in opposition to motion for summary judgment, (ECF No. [unk.]), and simply supplements his all-inclusive response in opposition to summary judgment, pages 23-24, related to his inability to conduct video depositions.” (Id. at 2). The remainder of the supplemental response addressed only Wilborn's difficulties in obtaining video depositions. (See Id. at 2-5).

         On June 26, 2018, the undersigned set a final deadline for Wilborn to refile his ...