* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. 

### REVISED March 11, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10258

RICHARD FUJITA, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CV-126-Y

Before SMITH, WIENER, and OWEN, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

Richard Fujita appealsa summaryjudgment that resulted from his failure to designate an expert to support his medical malpractice claim. We affirm, beUnited States Court of Appeals

Fifth Circuit 

### F I L E D March 2, 2011 Lyle W. Cayce ClerkNo. 10-10258

1 The FTCA authorizescivil actionsfor damagesagainst the United Statesfor the negligent acts ofits employees where private individuals would be liable under the lawofthe state in which the acts occurred. See 28 U.S.C. § 1346(b).

2 Fujita dated the request January 29 but certified that it was served on January 27. 2 cause the district court gave Fujita ample opportunity to designate and did not abuse its discretion in enforcing its deadline. Absent designation of an expert, there is no genuine issue of material fact on the standard of care to support Fujita’s claims.

I. Fujita is a federal inmate. In February 2008, he sued under the Federal Tort Claims Act (“FTCA”), alleging that, for his asthma, he received negligent medical care from the Bureau ofPrisons (“BoP”) and that he is entitled to recover damages under Texas law. 1 Specifically, he claims that the BoP provided dangerously high doses of Prednisone against the advice oftwo asthma specialists, causing him to develop Type-II steroid-induced diabetes mellitus. The scheduling order set a deadline of November 28, 2008, for Fujita to provideexpertwitnessdisclosures under Federal Rule of Civil Procedure 26(a)(2) and a deadline of March 31, 2009, to complete discovery. Several weeks later, the government moved for an extension of time, and the court extended the expert-disclosure deadline to January 28, 2009, and the discovery deadline to June 1, 2009. Fujita took no action until January 27, 2009, when he served the government with his first request for production ofdocuments, including a request for his medical records. 2 The government responded by noting that Fujita could request his medical records directly from the BoP. When Fujita objected that doing so would take too long, the government produced 942 pages of medical records and 960pages ofhealth-service materials. Fujita objected by letter that heNo. 10-10258

3 could not locate his prescription-drug history among the produced documents, but the government refused to produce more documents or to identify the location o f the requested materials, again reminding Fujita that he could request them directly from the BoP. On April 21, Fujita moved to compel the government to produce the requested documents. Instead of responding, the government moved for summary judgment on April 30, then on May 7 moved to stay discovery, pending a ruling
on the summaryjudgment motion, arguing that Fujita could not prove his claim without a medical expert and that he had not timely designated one. Also on May 7, Fujita served a request for admissions. Fujita answered the summaryjudgment motion on May 28with a Federal Rule ofCivil Procedure 56(f) motion for continuance until he could complete further discovery, reasoning that he could not designate a medical expert until the government complied with his first discovery request and released all his medical records. On June 5, the government filed a motion for a protective order. Fujita on June 9 filed a second motion to compel production ofthe medical records and for discovery sanctions. The court resolved these matters in an order ofJune 25. It granted Fujita until August 10 to designate an expert and thus avoid summary judgment, but it stayed all discovery in the interim and deferred ruling on Fujita’s motions tocompel. Later the court extended that deadline until August 24. On September 2, Fujita notified the court that he could not meet that deadline, protesting that an expert who had expressed interest in his casewould not sign on until the expert had evaluated the medical records that the government had declined to release. The court refused to allow more time, instead granting the motion for summary judgment and dismissing the action. Fujita appeals the summary judgment.No. 10-10258

3 See Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404, 435-36 (5th Cir. 1990); see also 6 J AMES W. MOORE ET AL ., MOORE ’S F EDERAL PRACTICE § 26.105[3][c] (3d ed. 2010).

4 SeeBrandleyv. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384 (2007).

5 The deadlines in the scheduling order werejustified and routine. Courts must set the deadline for expert disclosures well before the close of discovery to ensure that the other side has an opportunity to depose the expert. 3 MOORE ET AL ., supra, § 16.13[2][b][iii]. 4 II. The district court has “broad discretion and inherent power tostay discovery until preliminary questions that may dispose of the case are determined.” Petrusv. Bowen, 833 F.2d 582, 583 (5th Cir. 1987). For example, under Federal Rule ofCivil Procedure 26(c), the court may stay discovery for “good cause,” such
as a finding that further discovery will impose undue burden or expensewithout aiding the resolution of the dispositive motions. 3 We review the grant ofa motion to stay discovery for abuse of discretion. 4 The court had good cause to stay discovery. The pending summary judgment motion was dispositive and turned solely on whether Fujita could appoint
a medical expert. Fujita asserted that he could not obtain an expert without further discovery, but the court rejected that contention. That decision was correct for at least three reasons. First, the lack of medical records was not the most significant reason for Fujita’s delay in securing an expert. He knew the initial deadline for submitting expert disclosureswasJanuary 28, but he did not request his records until January 27. Had the lack of records really thwarted his efforts to obtain an expert, he should have sought toobtain them well before the expert deadline. His delay in doing so suggests that his argument is a pretext disguising an initial lack of diligence in finding an expert. 5 Second, the government repeatedly and accurately informed Fujita thatNo. 10-10258

6 See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (“‘Rule 16(b) of the Federal Rules ofCivil Procedure authorizes the district court to control and expedite pretrial discovery through a scheduling order. Consistent with the authority vested in the trial court by rule 16, our court gives the trial court ‘broad discretion to preserve the integrity and purpose of the pretrial order.’” (quoting H odges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979))); seealso 3 MOORE ET AL ., supra, § 16.14[1][a] (noting that the enforcement ofscheduling orders is an “essential mechanism for cases becoming trial-ready in an efficient, just and certain manner” (quoting Rouse v. Farmers State Bank of Jewell, Iowa, 866 F. Supp. 1 191, 1198 (N.D. Iowa 1994))). 5 he could get all his medical records from the BoP. See Bureau of Prisons Program Statement 6090.02, at 15 (Oct. 13, 2008). There is no indication in the record that Fujita made such a request. Third, Fujita had already obtained 942 pages of his medical records. Although he may be correct that those pages left out the relevant prescription history, those records, combined with Fujita’s own recollectionsofthe drugs hewas taking, provided some basis to consult with an expert. Fujita’s difficulties deserve some solicitude because of “this court’s traditional disposition ofleniency toward prose litigants.” Spotvillev. Cain, 149 F.3d 374, 377 (5th Cir. 1998). The district court was lenient enough, however. Its initial deadline for expert disclosures was November 28, 2008, but it gave an extended deadline toJanuary 28, 2009. Fujita let that deadline pass without designating an expert or explaining his failure to do so. In fact, he gave no indication that he even wanted to designate an expert until his May 28 motion to continue. The court would have been justified in enforcing the deadline. 6 Instead, it extended the deadline by over six months, giving Fujita until August 10 

### SS and then until August 24

### SStofind an expert. Moreover, the court did not require Fujita to have an expert report prepared by that time, so long as he had secured a commitment from an expert totestify. The district court by no means abused its discretion in its management of discovery.No. 10-10258

7 SeeHannah v. United States, 523 F.3d 597, 601-02 (5th Cir. 2008) (holding that expert testimony is required to establish that the defendant breached the standard ofcare in a Texas medical malpractice case unless “‘the mode or form oftreatment is a matter ofcommon knowledge or is within the experience of the layman’” (quoting H ood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977))).

8 Fujita argues that the date ofservice should be calculated from the date that he handed the request for admissions tothe prison guards under the “prisoner mailbox rule.” SeeStoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009). That rule applies to calculate the date a prisoner files a document, not the date he serves it on another party. Seeid. (“Under the prison mailbox rule, a prisoner’s pleading is deemed to have been filed on the date that the pro se prisoner submits the pleading to prison authorities for mailing.”). Service is complete when the document was mailed. See F ED

. R. C IV

. P. 5(b)(2)(C). 6 III. “We review [a] summaryjudgment de novo.” D unn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 2011 U.S. App. LEXIS 461, at *10 (5th Cir. Jan. 7, 2011) (citing Croft v. Governor ofTex., 562 F.3d 735, 742 (5th Cir. 2009)). Summaryjudgment is appropriate ifthere “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED
. R. C IV
. P. 56(a). The district court correctly concluded that the government is entitled to summaryjudgment if Fujita cannot designate an expert witness to establish that the government breached the standard ofcare, an essential element ofthe medical-malpracticeclaim. 7 Fujita does not dispute that maxim but argues that summaryjudgment is disfavored where relevant evidence remains to be discovered and that the court should have given him more time to find an expert. As we have explained, however, the court gave Fujita ample time, and it was reasonable to conclude that granting yet more time would not make a difference. Finally, Fujita maintains that there is a genuine dispute as to a material fact, because the government did not timely respond to his request for admissions, so all of them should be deemed admitted. See F ED
. R. C IV
. P. 36(a)(3). Fujita served the request on April 30. 8 The thirtieth day was Saturday, May 30,No. 10-10258

7 F ED
. R. C IV
. P. 6(a)(1)(C), so the period ran until the next business day, June 1. The government had three additional days to respond under Rule 6(d), because Fujita mailed the documents. The deadline to respond was therefore June 4. The government timely responded by serving its objections and motion for a protective order that day. Thus, there were no deemed admissions. For the reasons stated, the summary judgment is AFFIRMED.