IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 31, 2003

JOHN ALLEN HESSMER, ET AL. v. FERNANDO MIRANDA, ET AL.

 Appeal from the Circuit Court for Davidson County

No. 01C-2012 Walter C. Kurtz, Judge

No. M2001-02056-COA-R3-CV - Filed May 12, 2003

This appeal involves a state prisoner’s efforts to pursue medical malpractice and wrongful death

claims arising from the death of his mother. The prisoner filed a pro se complaint in the Circuit

Court for Davidson County against his mother’s treating physician and a nurse. The defendants filed

a joint motion for summary judgment supported by their own affidavits. The trial court granted the

prisoner additional time to obtain opposing affidavits and then dismissed the prisoner’s complaint

after he was unable to do so. The prisoner complains on appeal that his incarceration prevented him

from obtaining the opposing affidavits and asserts that the trial court erred by declining to appoint

a “special master” to aid him in the discovery process. We have determined that the prisoner was

not entitled to the assistance of a special master and that the trial court properly dismissed the

prisoner’s complaint because he failed to demonstrate the existence of a material factual dispute that

would warrant a trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

John Allen Hessmer, Nashville, Tennessee, Pro Se.

Robert E. Parker, Nashville, Tennessee, for the appellees, Fernando Miranda and Barbara Cardin.

OPINION

I.

John Allen Hessmer is currently serving sentences for aggravated burglary, vandalism,

possession of drugs for resale, and violating parole. On July 6, 2001, while he was incarcerated at

the South Central Correctional Center in Clifton, he filed a medical malpractice and wrongful death

action in the Circuit Court for Davidson County against the oncologist and a nurse who had treated

his mother for advanced stage lung cancer. Mr. Hessmer alleged that his mother had died on July

27, 2000 because the defendants had failed to provide her with proper chemotherapy treatment.
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On August 13, 2001, the oncologist and the nurse filed a joint motion for summary judgment,

supported by their own affidavits stating that their treatment of the prisoner’s mother had conformed

to the applicable standard of care and had not caused the death of the prisoner’s mother. Mr.

Hessmer responded with his own personal affidavit and also requested the trial court to appoint a

special master pursuant to Tenn. R. Civ. P. 53 to assist him with the case. The trial court continued

the hearing on the summary judgment motion for sixty days to give Mr. Hessmer additional time to

obtain and file affidavits opposing those filed by the oncologist and the nurse in support of their

motion for summary judgment. The trial court set December 10, 2001 as the deadline for filing these

opposing affidavits. When Mr. Hessmer failed to file the affidavits, the trial court filed an order on

December 12, 2001, granting the summary judgment and dismissing the complaint. Mr. Hessmer

has appealed.

II.

We first address the obligation of incarcerated prisoners who file civil suits to comply with

generally applicable substantive and procedural rules. In an opinion filed contemporaneously with

this one involving another of Mr. Hessmer’s lawsuits, we recognized that prisoners have a qualified

right to institute and prosecute civil actions in Tennessee’s courts. However, we also pointed out

that prisoners, like other pro se litigants, must comply with the same substantive and procedural rules

that represented parties are expected to observe. Hessmer v. Hessmer, No. M2002-01024-COA-R3-

CV, 2003 WL _____, at *___ (Tenn. Ct. App. May 12, 2003). 

Medical malpractice claims have strict substantive and procedural requirements. Subject to

the “common knowledge” exception that is inapplicable here, plaintiffs filing medical malpractice

actions cannot recover unless they produce competent expert evidence establishing each of the three

statutory ingredients of their claim. Tenn. Code Ann. § 29-26-115(a) (Supp. 2002); Seavers v.

Methodist Med. Ctr., 9 S.W.3d 86, 92 (Tenn. 1999). Mr. Hessmer is not somehow immune from

this substantive requirement simply because he is incarcerated.

 It is now commonplace for defendants in medical malpractice cases to file motions for

summary judgment to test the strength of their adversary’s case. These motions are generally

supported by the defendant’s own affidavit stating that, in their professional opinion, their actions

neither violated the applicable standard of professional practice nor caused the complained-of injury.

Affidavits of this sort effectively negate the allegations of negligence in the plaintiff’s complaint and

force the plaintiff to demonstrate the existence of a genuine, material factual dispute that warrants

a trial. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 438 (Tenn. 1998); Dunham v. Stones

River Hosp., Inc., 40 S.W.3d 47, 51 (Tenn. Ct. App. 2000).

Plaintiffs confronted by these summary judgment motions have several options. Frequently,

since most of these motions are filed before much discovery has occurred, the only practical option

is to file an expert affidavit contradicting the assertions in the defendant’s affidavit. Plaintiffs who

are unable to produce their own opposing expert affidavit face almost certain dismissal of their

complaint because the defendant has effectively negated an essential element of their case. Without

an opposing expert affidavit, the plaintiff cannot demonstrate the existence of a genuine factual

dispute regarding whether the defendant breached the applicable standard of professional practice.

Mabon v. Jackson-Madison County Gen. Hosp., 968 S.W.2d 826, 831 (Tenn. Ct. App. 1997).
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In this case, the oncologist and nurse filed a joint summary judgment motion supported by

their own affidavits stating that their conduct was consistent with the applicable standards of

professional practice and that their treatment of Mr. Hessmer’s mother did not cause her death. Once

these affidavits were filed, Mr. Hessmer, like any other plaintiff in a medical malpractice case, could

not rest on the allegations in his complaint. Tenn. R. Civ. P. 56.06. He was required to come

forward with affidavits by competent medical experts contradicting the assertions in the oncologist’s

and nurse’s affidavits. He was not somehow exempted from this procedural requirement simply

because he was incarcerated.

III.

Mr. Hessmer asserts that the trial court should have appointed a “special master” to assist him

with his case. As he describes it, the role of this special master would have been “specifically to

preform (sic) such tasks that an imprisoned person is incapable for performing.” There are two

fundamental problems with Mr. Hessmer’s request. First, special masters appointed pursuant to

Tenn. R. Civ. P. 53 do not perform the functions Mr. Hessmer says he needs. Second, incarcerated

prisoners have no right to court-appointed assistance with their civil litigation.

Pro se litigants, including pro se prisoners, have a right to fair and equal treatment by the

courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Paehler v. Union

Planter Nat’l Bank, 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). However, the courts may not

prejudice the rights of other parties in order to be “fair” to parties who decide to represent

themselves. Hodges v. Attorney General, 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000). Thus, the

courts should not allow pro se litigants, including incarcerated prisoners, to shift the burden of the

litigation to the courts or to their adversaries.

Indigent civil litigants, unlike indigent criminal defendants, possess neither a constitutional

nor statutory right to court-appointed assistance. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.

2002); Foggie ex rel. Geronimo v. Commissioner of Social Sec., 243 F. Supp. 2d 2, 4 (S.D.N.Y.

2003); Phillips v. Shamshad, No. W2001-02508-COA-R3-CV, 2002 WL 1905310, at *5 (Tenn. Ct.

App. Aug. 16, 2002) (No Tenn. R. App. P. 11 application filed). While trial courts may very well

have the inherent prerogative in exceptional circumstances to request appointed counsel to assist

indigent civil litigants, this authority is discretionary. The appointment of counsel is not appropriate

when the pro se litigant’s claims are frivolous or when the chances of success are extremely thin.

Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).

Based on this record, it is reasonable to conclude that Mr. Hessmer’s chances of succeeding

with this lawsuit are extremely thin. The appointment of a “special master,” as he calls it, or a

lawyer, would not necessarily have enabled him to effectively oppose the summary judgment motion

filed by the oncologist and nurse. Even with this assistance, Mr. Hessmer would still need

competent experts who would opine that the chemotherapy his mother received fell below the

applicable standard of professional conduct and caused her death. Because Mr. Hessmer has no

colorable right to appointed medical experts, he would be required to find medical experts who

would be willing to donate their time and expertise to his cause. The chances of this are, as a

practical matter, slim. Accordingly, we have determined that the trial court did not err by declining

to appoint a “special master” to assist Mr. Hessmer with his lawsuit.
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IV.

We affirm the judgment dismissing Mr. Hessmer’s complaint and remand the case to the trial

court for whatever further proceedings may be required. We tax the costs of this appeal to John

Allen Hessmer for which execution, if necessary, may issue. We also have determined that this

appeal is frivolous in accordance with Tenn. Code Ann. § 41-21-807(c) (Supp. 2001) and Tenn.

Code Ann. § 41-21- 816 (a)(1) (1997). 

_____________________________ 

WILLIAM C. KOCH, JR., JUDGE