     Case: 12-10903       Document: 00512332126         Page: 1     Date Filed: 08/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 5, 2013

                                       No. 12-10903                        Lyle W. Cayce
                                                                                Clerk

LINDA BORDEN

                                                  Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:11-CV-00200-A


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Linda Borden filed this action for medical malpractice against the
Government pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b)(1), 2674. Proceeding pro se, she appeals from the summary judgment
granted to the Government, contending primarily that the district court erred
in denying her motions to extend the deadline for designating an expert witness.
She also asserts the district court erred in denying her motions for appointment



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-10903

of counsel, denying her access to the courts, and not appointing an expert for her.
AFFIRMED.
                     FACTS AND PROCEDURAL HISTORY
      “In reviewing a district court’s grant of summary judgment, we are
required to consider the evidence presented in the light most favorable to the
party opposing the motion.” McPherson v. Rankin, 736 F.2d 175, 177-78 (5th Cir.
1984). Mindful of this rule, we summarize the facts as alleged by Borden.
      According to Borden, while in the custody of the Bureau of Prisons, she fell
in May 2008 and injured her hand and foot. Prison medical staff initially
refused to perform x-rays; when they were finally ordered four days after she
was injured, the x-rays revealed broken bones in Borden’s hand. She was
scheduled to have the bones set and a cast placed on her hand a week later, but
prison staff refused to take her to the appointment. Three weeks after the fall,
she finally received treatment. By then it was too late for her bones to heal
properly, and her affected hand is still severely disabled.
      Meanwhile, Borden’s foot injury steadily worsened. Prison medical staff
gave her conflicting reports regarding the diagnosis, with some telling her x-rays
had revealed broken bones and others telling her the foot was not broken. As
her condition deteriorated, prison doctors and nurses ignored her foot until she
was finally seen by an outside orthopedist one month after her fall. The
orthopedist informed Borden that her foot was “shattered,” and that she needed
physical therapy for her hand. Prison staff allegedly again ignored the urgency
of her medical situation. She did not receive necessary surgery on her foot until
October 2008. The five-month delay in treatment caused her injuries to worsen
such that her foot did not properly heal. She remains unable to use the foot.
      Borden filed suit on March 28, 2011. On the same date, she filed a motion
for appointment of counsel.        The district court denied the motion for
appointment of counsel on July 22 of that year. The court later denied two

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motions to submit supplemental information supporting appointment of counsel,
which the court construed as motions to reconsider its previous denial.
      On October 14, 2011, the district court entered a pretrial scheduling order.
It set a deadline of 120 days prior to the October 22, 2012 trial date for the
parties to designate expert witnesses. On May 15, 2012, the Government moved
for a 30-day extension of time to designate its expert witness, on the basis that
it could not know exactly what sort of expert it would need, if any, until Borden
had designated her expert. The court granted the Government’s motion one
week later.
      On June 6, 2012, which was two and a half weeks before the deadline to
designate her expert, Borden moved for a 120-day continuance on the trial date.
She indicated that her incarceration without access to Internet resources or to
medical experts would end on July 19, and she would be on home confinement
in Florida until December 25.      An extension of the trial date would have
extended the expert-designation deadline, as expert designations were due 120
days prior to the trial.    The court determined no special circumstances
warranted moving the trial date, and denied the motion. It denied a subsequent
motion to extend the expert-designation deadline, which Borden filed after the
deadline had passed. On August 22, 2012, the district court granted the
Government’s motion for summary judgment and entered final judgment against
Borden. Borden timely appealed.
                                 DISCUSSION
1. Denial of motions for extension of time
      Summary judgment is reviewed de novo, and, as stated, we consider the
evidence in the light most favorable to the nonmovant. McPherson, 736 F.2d at
177-78. Summary judgment is appropriate where “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.” FED. R. CIV. P. 56(a).           A district court’s

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                                  No. 12-10903

enforcement of its scheduling order is reviewed for abuse of discretion.
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). The trial court is
entitled to “broad discretion to preserve the integrity and purpose of the pretrial
order,” and its decision to do so “must not be disturbed absent a clear abuse of
discretion.” Id. (internal quotation marks omitted).
      In determining whether the district court abused its discretion in denying
Borden’s motions to amend the scheduling order, either by extending the expert-
designation deadline or delaying the trial, we consider four factors: “(1) the
explanation for the failure to [submit a complete report on time]; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony;
(4) the availability of a continuance to cure such prejudice.” Reliance Ins. Co. v.
La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997) (quoting
Geiserman, 893 F.2d at 791) (alteration in original).
      First, Borden’s explanation for her failure to meet the designation deadline
is that she was incarcerated for much of the period leading up to the deadline,
and therefore lacked access to sufficient communication tools to seek out and
hire an expert. Many plaintiffs in FTCA actions are not only incarcerated
during part of discovery, as Borden was, but remain so through their trial dates
and beyond. E.g., Hannah v. United States, 523 F.3d 597 (5th Cir. 2008). No
precedent indicates the fact of incarceration alone is a sufficient explanation to
require the district court to modify a scheduling order.
      Second, the expert testimony for which Borden sought an extension is vital
to her cause. “State law controls liability for medical malpractice under the
FTCA.” Id. at 601. As a threshold issue, Texas law requires a plaintiff suing for
medical malpractice to establish the standard of care. Id. If the standard of care
is not “a matter of common knowledge or [] within the experience of the layman,”
plaintiff must provide expert testimony to meet her burden. Id. (internal
quotation marks omitted). The proper mode of treatment for broken bones is

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neither a matter of common knowledge nor in the average lay person’s
experience; therefore, without expert testimony, Borden has no claim. Indeed,
Borden’s inability to meet her threshold burden of proving the standard of care
with expert testimony was the basis for the district court’s summary judgment
for the Government. This second factor weighs in Borden’s favor.
      The third factor does not strongly favor either party. The Government
would likely not have faced significant prejudice had Borden’s motion for an
extension on the expert-designation deadline been granted, as very little
discovery had been conducted and, as such, the Government would not have had
to change a course charted by earlier discovery. On the other hand, Borden did
not file the motion for an extension of the deadline (as opposed to her initial
scheduling-order motion for a continuance) until well after the deadline had
passed. If the district court had granted this late motion, the Government would
have had a significantly reduced period of time in which to prepare for trial in
light of Borden’s expert’s testimony.
      Finally, the availability of a continuance favors Borden. The Government
did not object to a continuance of the trial date when Borden initially requested
it. In turn, this availability weakens the Government’s position when it comes
to the third factor; i.e., had the district court granted Borden’s unopposed motion
for a continuance, then the Government would have had ample time to prepare
for trial in light of Borden’s expert designation.
      Taken as a whole, the four factors may slightly favor granting Borden’s
requested extensions. Nonetheless, they do not tip the scales heavily enough in
her favor to overcome the deferential standard of review. See Geiserman, 893
F.2d at 790. The trial court exercised its broad discretion to enforce its pretrial




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order, and we cannot say it abused that discretion. Whether we would have
reached the same conclusion is immaterial.1
       This result is further supported by Borden’s failure to request any
extension until two weeks prior to the expert-designation deadline. She did not
make a specific request for an extension of the expert-designation deadline until
after the deadline had passed. Her ability to file several other motions in the
preceding 15 months supports that she was able to file relevant motions, and
could have moved more promptly to modify the scheduling order. Good cause to
modify a scheduling order is said to exist only where the schedule “cannot
reasonably be met despite the diligence of the party seeking the extension.” FED.
R. CIV. P. 16(b) advisory committee’s note (1983).
       Despite the leniency traditionally afforded pro se litigants, Borden’s late
request to modify the scheduling order, despite filing numerous motions on other
matters, vitiates any claim of diligence as to the expert.
       Because the district court did not abuse its discretion in denying Borden’s
motions for extension of time, and because Borden failed to designate a medical
expert to establish the threshold standard-of-care issue, the court properly
granted summary judgment for the Government on her medical-malpractice
claim. Hannah, 523 F.3d at 602.
2. Borden’s other claims
       Borden presents three additional arguments on appeal.                     First, she
maintains the district court erred in denying her motion for appointment of
counsel. “We will overturn a decision of the district court on the appointment of
counsel only if a clear abuse of discretion is shown.” Cupit v. Jones, 835 F.2d 82,



       1
         It may have been preferable for the district court to apply the four Reliance factors
in its own analysis. See Anzures v. Prologis Texas I LLC, 886 F. Supp. 2d 555, 561 (W.D. Tex.
2012) (applying four factors in ruling on motion to amend scheduling order). However, no
authority requires the trial court to do so.

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86 (5th Cir. 1987). As the district court stated, a civil litigant should receive
appointed counsel only in exceptional circumstances. E.g., Williams v. Ballard,
466 F.3d 330, 335 (5th Cir. 2006). The court examined Borden’s medical records
and determined she had not demonstrated the existence of such exceptional
circumstances. Considering that Borden filed several motions in the district
court and continues to represent herself on appeal, the district court did not
abuse its discretion in concluding she was capable of litigating her claims
without appointed counsel.
      Next, Borden contends the district court’s denial of her motions for
appointment of counsel and extension of time to designate an expert constituted
a denial of her access to the courts. This contention is conclusory and meritless.
No authority need be cited for the notion that the right of access to courts does
not require success on every motion.
      Finally, Borden asserts the court should have appointed an expert witness
for her, given her indigent and pro se statuses. No statute or court rule provides
for the court to appoint an expert to assist in a litigant’s case. Federal Rule of
Evidence 706 allows the court to appoint an expert to assist in its own
understanding of the issues, but not for the sole benefit of a party. Similarly, 28
U.S.C. § 1915, which governs proceedings involving indigent parties, “does not
provide for the appointment of expert witnesses to aid an indigent litigant.”
Hannah, 523 F.3d at 601.
      AFFIRMED.




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