United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge.
Lee Anderson, II, a Virginia inmate proceeding pro
se, commenced this civil action pursuant to 42 U.S.C. §
1983. Plaintiff complains about the dental treatment provided
by Dr. Philip H. Witherspoon, the former dentist at the
Augusta Correctional Center ("ACC"). Currently pending
before the court are the parties' cross motions for
summary judgment (ECF Nos. 54 & 61), which were referred
to United States Magistrate Judge Joel C. Hoppe for a report
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
See ECF No. 52. Following an evidentiary hearing on
December 14, 2016, the magistrate judge issued a report,
recommending that defendant Philip H. Witherspoori's
motion be granted, Anderson's motion be denied, and this
matter be dismissed (ECF No. 92). Anderson has filed
objections to the magistrate judge's report (ECF No. 93).
For the reasons set forth below, the court will overrule
Anderson's objections and adopt the magistrate
judge's report in its entirety.
overarching objection to the magistrate judge's report is
that he was denied a fair hearing in violation of his Fifth
and Fourteenth Amendment rights. Anderson claims that his
constitutional rights were violated because the magistrate
judge refused to subpoena his "key witnesses, " he
was not allowed to appear in person at the evidentiary
hearing, and he was not appointed counsel.
court referred this matter to the magistrate judge to hold an
evidentiary hearing on Anderson's
allegations-specifically, his allegations of extreme pain
leading him to extract a tooth himself using fingernail
clippers, spoons, pens and string, which allegations had not
been addressed in Dr. Witherspoon's previously-filed
motion for summary judgment. See Mem. Op., ECF No.
50, at 5-7. The magistrate judge held such a hearing on
December 14, 2016. At that hearing, which was held on the
record and lasted a total of four and a half hours, Anderson
and his witness George Nelson appeared via videoconference to
testify on behalf of the plaintiff; Dr. Witherspoon and his
dental assistant, Tammy Lynn Coyner, appeared in person and
testified on behalf of the defendant. See Minute Entry, ECF
No. 86. There is nothing aside from Anderson's baseless
allegations to suggest that this evidentiary hearing was
conducted in a manner that violated Anderson's due
Anderson complains that his constitutional rights were
violated because he was not permitted to call his "key
witnesses" at the December 14 hearing. It is unclear
from his objections who these "key witnesses" are,
although he does mention by name Ms. Wilson, a dental
hygienist. Pl.'s Obj., ECF No. 93, at 4. Prior to the
evidentiary hearing, Anderson filed several motions
concerning witness subpoenas, see, e.g., ECF Nos.
74, 76, 83, and the magistrate judge denied his requests for
issuance of subpoenas to non-inmate witnessesbecause he had not
prepaid the required fees, see ECF No. 75. The magistrate
judge did, however, arrange for inmate George Nelson to
testify on Anderson's behalf at the hearing via video
contends that his "key witnesses" were not allowed
to testify at the evidentiary hearing due to his in forma
pauperis status, and he claims he is entitled to have
these witness subpoenas served by the court pursuant to 28
U.S.C. § 1915(d), Federal Rule of Civil Procedure
4(c)(3), and Federal Rule of Criminal Procedure 17(b).
Anderson's reliance on Rule 17(b) is improper, as this is
a civil-not a criminal-proceeding. Flis reliance on 28 U.S.C.
§ 1915(d) and Federal Rule of Civil Procedure 4(c)(3) is
also misplaced. Section 1915(d) provides that officers of the
court (e.g., a United States marshal or deputy
marshal if ordered by the court, see Fed.R.Civ.P. 4(c)(3)),
"shall issue and serve all process, and perform all
duties in such cases" brought by an indigent plaintiff.
It specifically provides that "[w]itnesses shall attend
as in other cases, and the same remedies shall be available
as are provided for by law in other cases." 28 U.S.C.
§ 1915(d). However, "[a] district court generally
has no duty to subpoena witnesses for an indigent litigant
who cannot pay the witness fees in civil, non-habeas
cases." Nance v. King. 888 F.2d 1386 (4th Cir.
1989) (unpublished table decision); Burris v. Ware.
No. 2:13-699-GRA-SVH, 2013 WL 4823269, at *3 (D.S.C. Sept. 9,
2013); see generally 28 U.S.C. § 1821 (witness
per diem and mileage fees); Fed.R.Civ.P. 45(b)(1) (service of
subpoenas); c£ 28 U.S.C. § 1915(c) (providing for
payment by the United States of certain expenses, including
printing and transcript fees, under certain circumstances,
but not witness fees); 28 U.S.C. § 1825 (providing for
payment of witness fees by the government in certain types of
cases involving the United States, including habeas cases).
The magistrate judge properly denied Anderson's request
to issue subpoenas to non-inmate witnesses because he had not
tendered prepayment of the appropriate witness and mileage
also contends that his constitutional rights were violated
because he was not permitted to appear in person at the
evidentiary hearing. While incarcerated plaintiffs have a
right of access to the courts, Bounds v. Smith. 430
U.S. 817 (1977), Anderson does not have a constitutional
right to be physically present at pretrial proceedings in
this civil action. Price v. Johnston. 334 U.S. 266,
284-86 (1948), overruled on other grounds by McCleskey v.
Zant. 499 U.S. 467 (1991); see Kirk v. United
States. 589 F.Supp. 808, 809 (E.D. Va. 1984)
("Plaintiff has no right to be transported at
taxpayer's expense for the trial of the [civil] case. The
matter is discretionary within the trial court."
(internal citation omitted)); see also Fed.R.Civ.P.
43 (providing for the taking of testimony in open court by
contemporaneous transmission from a different location with
does Anderson have a right to appointment of counsel in this
civil rights action, as the magistrate judge previously
ruled. ECF No. 71; see Mallard v. United States District
Court. 490 U.S. 296, 309 (1989) (holding 28 U.S.C.
§ 1915(d) does not authorize coercive appointments of
has not established any denial of his due process rights in
connection with the December 14, 2016 evidentiary hearing.
His objections will therefore be overruled.
remainder of Anderson's objections concern the magistrate
judge's recitation of the facts on page 3 and 8 of the
report. It is clear that Anderson simply disagrees with Dr.
Witherspoon's medical findings and characterization of
the series of events giving rise to this lawsuit. For
instance, Anderson takes issue with the sentence on page 3 of
the magistrate judge's report, which states: "Dr.
Witherspoon noted in his record that tooth #4 was missing,
tooth #5 had an intact distal-occlusal amalgam filling, and
tooth #6 was worn but had no restoration or decay.
Witherspoon Aff. ¶ 3; ECF No. 72-1, at 7."
Pl.'s Obj., ECF No. 93, at 5. Anderson asserts in his
objections: "Reply: First #5 tooth had absolutely [sic]
'no filling' it had fallen out around the first of
the 2014 year." IcL This is the same argument Anderson
has raised all along in this case. See Veney v.
Astrue. 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008)
(objections that simply reiterate arguments raised before the
magistrate judge are considered general objections to the
report and recommendation and do not require de novo
review). The magistrate judge had the opportunity to hear
testimony from both Anderson and Dr. Witherspoon, and he
credited Dr. Witherspoon's version of events, which are
grounded in his treatment notes. Indeed, this particular
statement of fact set forth on page 3 of the magistrate
judge's report is supported by Dr. Witherspoon's May
22, 2014 treatment note and his affidavit filed in support of
summary judgment. See ECF Nos. 55-1, 55-3. Dr.
Witherspoon's treatment note from this date further
reflects that he gave Anderson a large hand mirror in an
attempt to explain these medical findings, but Anderson
"continued to be argumentative" and was escorted
out. In his objections, Anderson continues to argue with Dr.
Witherspoon's medical findings, insisting he is a
pathological liar. Anderson's remaining
"objections" to the facts set forth on page 8 of
the magistrate judge's report follow a similar pattern.
court has reviewed the magistrate judge's thorough
report, as well as Anderson's objections to die report,
and finds no error in the magistrate judge's finding that
Dr. Witherspoon is entitled to summary judgment. In
particular, with respect to Anderson's allegations that
his extreme pain and Dr. Witherspoon's deliberate
indifference led him to extract a tooth himself-the claim
that had not been addressed in Dr. Witherspoon's previous
motion for summary judgment and the reason this case was
referred for evidentiary ...