Powell v. Bartlett Med. Clinic & Wellness Ctr.

• Decision Date: 25 January 2021
• Docket Number: Civil Action 2:20-cv-02118
• Parties: ADAM POWELL, Plaintiff, v. THE BARTLETT MEDICAL CLINIC AND WELLNESS CENTER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

ADAM POWELL, Plaintiff,
v.
THE BARTLETT MEDICAL CLINIC
AND WELLNESS CENTER, et al., Defendants.

Civil Action 2:20-cv-02118

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

January 25, 2021

Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

Plaintiff, Adam Powell, an Ohio resident proceeding here pro se, brings this action asserting claims under the Title III of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101 et seq., against Columbus Medical Enterprises, LLC d/b/a The Bartlett Medical Clinic and Wellness Center ("the Clinic") and Heather K. Bartlett, M.D. ("Dr. Bartlett") (collectively, "Defendants"). With the consent of the parties (ECF No. 26), pursuant to 28 U.S.C. § 636(c), this matter is before the Court for consideration of Plaintiff's Motion for Leave to File a Second Amended Complaint (ECF No. 30), Defendants' Motion to Dismiss (ECF No 24), Plaintiff's motion for appointment of counsel (ECF No. 29 as supplemented by ECF No. 33), Plaintiff's Motion Requesting Review by the Attorney General or Designee (ECF No. 34), and Plaintiff's motion for a protective order (ECF No. 35). For the following reasons, the Motion to Dismiss (ECF No. 24) is GRANTED. Further, the Court resolves the remaining motions as follows.

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I. BACKGROUND

Plaintiff initiated this case on April 27, 2020, when he moved for leave to proceed in. forma pauperis. (ECF No. 1.) Following an initial screen by the Court, the Complaint was filed on May 4, 2020. (ECF No. 4.) On July 30, 2020, Plaintiff filed an Amended Complaint. (ECF No. 16.)¹

In his Amended Complaint, Plaintiff alleges the following. In May 2017, Plaintiff began seeing Dr. Bartlett in her capacity as a general practitioner. (ECF No. 16 at ¶ 17.) He primarily sought her care for maintenance of his ADHD medications. (Id. at ¶ 18.) On March 23, 2018, Plaintiff received an email setting forth new clinic policies regarding the treatment of ADHD. (Id. at ¶ 19.) Plaintiff was alarmed by this email and found it disparaging to his condition but concluded the policies were "mostly inapplicable to him." (Id. at ¶ 20.)

In July 2019, after treating with Dr. Bartlett for a little over two years, Plaintiff requested to resume treatment with a previous ADHD medication and dosage that had been prescribed by multiple psychiatrists and that he had taken for years with good results. This request led to significant problems. (Id. at ¶ 21.) After months of struggling, Plaintiff sent an email to Dr. Bartlett describing the difficulties he was experiencing and voicing his frustration with the situation. (Id. at ¶ 25.) Dr. Bartlett responded via email, expressing concern about the "odd

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wording and sentiment" expressed in Plaintiff's email and, according to Plaintiff, suggested a drug test by way of a "veiled threat." (Id. at ¶ 26.) Eventually, the physician-patient relationship was terminated in March 2020. (Id.)

After the termination of the physician-patient relationship, Plaintiff also was terminated from enrollment in the monthly-subscription service and ran out of medication. (Id. at ¶ 27.) He spent the next month once again struggling with the symptoms he has struggled with all his life without appropriate treatment. (Id. at ¶ 28.). At the time the original complaint was filed, ADD/ADHD was the only condition for which Dr. Bartlett set forth a specific policy on her website. (Id. at ¶¶ 22, 23.)

Plaintiff seeks an injunction prohibiting the Defendants from engaging in further discriminatory practices against people with disabilities, and any other relief permitted under the ADA. (ECF No. 16 at 11.) Further, he seeks unspecified monetary damages as well, citing Ohio Revised Code § 4112.99. (Id.)

I. PRELIMINARY MOTIONS

Plaintiff has moved for leave to file a Second Amended Complaint. He has framed this motion, in part, as contingent upon his requests for appointment of counsel. Accordingly, the Court will address the issue of the appointment of counsel briefly at the outset.

A. Motions for Appointment of Counsel

Plaintiff has moved for appointment of counsel under various theories. For example, Plaintiff suggests that his request could be viewed as a request for an accommodation under the ADA. See ECF No. 29 at ¶ 5. To the extent that this may be so, Plaintiff has not established a need for counsel based on his alleged disability.

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The ADA "does not carry with it, for claims brought thereunder, any inherent or absolute right to counsel." Stone v. Town of Westport, No. 3:04CV18 (JBA), 2007 WL 9754412, at *1 (D. Conn. Feb. 23, 2007). To the extent Plaintiff is seeking an accommodation for his alleged condition, in the form of appointed counsel, to enable him full access to the courts,² even assuming that the ADA provides for such accommodation in the form of appointed counsel in this civil case, and that he qualifies for ADA protection, Plaintiff's motion under this theory is not well-taken. Despite Plaintiff's explanations throughout the record of the difficulties presented by his alleged condition, Plaintiff has managed his litigation of this case quite effectively, asserting his requests for relief clearly, responding in appropriate form to the motion to dismiss, and meeting deadlines. This indicates to the Court that Plaintiff is in the same position as any person proceeding pro se and without any legal education. In short, the Court is not convinced that the appointment of counsel would accommodate Plaintiff's alleged disability more than it simply would accommodate "his "'unrepresentedness' and lack of legal education." Id. Accordingly, Plaintiff's motion for the appointment of counsel as an accommodation under the ADA is DENIED.

Plaintiff also appears to seek the appointment of counsel pursuant to 28 C.F.R. § 36.501³ through his motion for review by the Attorney General. That Regulation provides that the Court,

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in its discretion, may "permit the Attorney General to intervene in the civil action if the Attorney General or his or her designee certifies that the case is of general public importance." The Attorney General has not sought to intervene in this case, making this Regulation inapplicable here. Accordingly, Plaintiff's motion for appointment of counsel under this theory also is DENIED.

Finally, and more generally, Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915(e). Although this Court has statutory authority under that statutory provision to appoint counsel in a civil case, appointment of counsel is not a constitutional right. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (citation omitted). Rather, "[i]t is a privilege that is justified only by exceptional circumstances." Id. at 606. The Court has evaluated whether such exceptional circumstances exist in this case and, for the reasons more fully explained below, determines that the appointment of counsel is not warranted. Accordingly, Plaintiff's motions for appointment of counsel by virtue of his indigent status are DENIED.

B. Motion for Leave to File a Second Amended Complaint

1. Legal Standard

Pursuant to Rule 15(a), the Court should freely grant a party leave to amend his or her pleadings when justice so requires. Fed. R. Civ. P. 15(a). Rule 15(a) sets forth "a liberal policy of permitting amendments to ensure the determination of claims on their merits." Oleson v. United States, 27 F. App'x 566, 569 (6th Cir. 2001) (internal quotations omitted). As the United States

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Court of Appeals for the Sixth Circuit has noted, "[f]actors that may affect [a Rule 15(a)] determination include undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendment, undue prejudice to the opposing party, and futility of the amendment." Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008).

A court may deny a motion for leave to amend for futility if the amendment could not withstand a motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010); Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758, 767 (6th Cir. 2005). In addition, when considering the issue of prejudice, a court must ask whether allowing amendment would "require the opponent to expend significant additional resources to conduct discovery or prepare for trial" or cause considerable delay in resolving the dispute. Phelps v. McClennan, 30 F.3d 658, 662-63 (6th Cir. 1994).

2. Analysis

In seeking leave to amend, Plaintiff explains that, as this case has evolved, he has learned that certain matters raised in his earlier filings are "unlikely to succeed and only serve to 'muddy the waters' of the case." (ECF No. 30 at ¶ 2.) He notes that he has requested the appointment of counsel⁴ and explains that, given the deadline for motions to amend, his intention is to "reserve the right to amend the Complaint again" whether such amendment ultimately is undertaken on his own or by counsel. (Id. at 1, ¶ 7.) He states that he "does not anticipate the addition of any parties, or the

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addition of any new Questions of Law and instead assumes that the Second Amended Complaint will be more concise, focusing on the actual questions of law relevant to the case at Bar (the ADA and the O.R.C. anti-discrimination statutes)." (Id. at ¶ 8.) He anticipates being able to file a Second Amended Complaint no later than January 2021. Defendants oppose Plaintiff's motion on grounds of futility.

As indicated, Plaintiff's motion for leave to amend is, in part, a motion for an extension of the amendment deadline based on his request for the appointment of counsel. In that sense, it is more aptly described as a placeholder rather than a substantive motion seeking leave to amend. Because Plaintiff's request for counsel has been denied, it is not a basis upon which to grant such an extension.

To the extent that Plaintiff is making a more substantive request, he has not attached a...