United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
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. (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
Standard of Review
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
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).
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, 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. (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).
Initial Discovery Issues
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
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).
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.
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.
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.
Wilborn's Expert Designation
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).
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).
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.
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).
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).
Subsequent Discovery Issues and Appeal
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).
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.).
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).
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).
Wilborn's Response to the Motion for Summary
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).
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. (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.
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.” (Id. at 1).
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).
26, 2018, the undersigned set a final deadline for Wilborn to
refile his ...