### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J anuary

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 prisone r’s effort s to pursue medical malprac tice and wrongf ul death cl aims arising from the death of his mother. The prisoner f iled a pro se complaint in the Circu i t Courtfor Davidson County ag ainst his mother’s treating physician and a nur se. The defendants filed a joint motion for summary judgment supported by their own af fidavits. The trial court granted the prisoner additiona l time to obt

ain opposing affidavits and then dismissed the prisoner’s complaint after he was unable to do so. The prisoner complains on appeal t hat his inc arcer

ation pre vented 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 notentitled to the assistance of a spec ial maste r 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 war

rant a tr ial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W IL LI AM C. K OCH , J R ., J., delivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. John Allen Hessmer, Nashville, Tennessee, Pro Se. Robert E. Parker, Nashville, Tennessee, for the a ppellees, Fernando Miranda and B arbara Cardin.

OPINION
I.
John Allen He ssmer is c urre ntly serving sentenc es for a

ggra vated bur glary , vandali sm, possession of drugs for resale, and violating parole. On July 6, 2001, while he was incarc erated at the South Central Correctional Center in Clifton, he filed a medica l malpractice and

wrongf ul death action in the Circuit Court for Davidson County aga inst the oncologist and a nurse who had treated his mother for

advanced stage lung c ancer. Mr. Hessm er alleg ed that hi s mother h ad died on July 27, 2000 because th

e defen dants had

failed to provide h

er with pr oper che mothera py t reatmen t.-2-

On August 13, 2001, the oncologist and the nurse filed a jo int motion f

or summar

y ju dgment, supported by their own af

fidavits stating that their treatment of the prisoner’s mother had c onformed to the a pplicable standard of care and had not c aused 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 pu

rsuant to Tenn. R. Ci v. P. 53 to a ssist him withthe case. The trial court continued the hearing on

the summary

judgmen t motion for

sixty d ay s to give

Mr. Hessm

er addit ional time to o btain and f

ile affi davits opp osing tho se filed b y the oncolog ist and the

nurse in s upport of

their motion for summary judgment. The trial court set December 10, 2001 as the de adline f or filing these opposing affida

vits. When M

r. Hessme r failed to file the a

ffidavit s, 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 oblig ation of in carce rated pr isoners w ho file c ivil suits to

comply with gener ally applicable substantive and procedural rules. In a

n opinion f

iled cont emporaneously

with this one involv

ing ano ther of M

r. Hessme r’s laws uits, we recognized that prisoners have a qualified right to ins titut e and prosecute civil actions in Tennessee’s cour ts. However, we also pointed out that prisoner s, like other pro se litigant s, must comp ly

with the same substantive andprocedural 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 malprac tice cla

ims have str

ict substa ntive and procedu ral req uiremen ts. 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) ; S eavers v. Methodis t

Me d. Ct r. , 9 S.W.3d 86, 92 (Tenn. 1999). Mr. Hessmer is not somehow immune from this substantive requirement simply beca use he is incarcerated. It is now commonplace for def endants in medical malpractice cases to f ile motion s for summary judgment to test the strength of their adversar y’s case

. These m otions ar e gene rally supported by the def

endant’s own affidavit stating that, in their professional opinion, their actions neither violated the applicable standard of profession al pr ac ti ce no r c au se d t he co mp la in ed -o f i nj ur y. Affidav its 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 factua l dispute th at warr

ants a trial. Finister v. Humboldt Gen. Hosp., Inc. , 970 S.W.2d 43 5, 438 (Te nn. 1998) ; Dunham v. Stones River Hosp., Inc. , 40 S.W.3d 47, 51 (Tenn. Ct. App. 2000).
Plaintiffs confronted by

these summary

judgment mo ti on s h av e s ev er al op ti on s. Fr eq ue nt ly, 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 def endant’s affidavit. Plaintiffs who are unable to produce their own opposing expert affidavit fa c e almost c ertain d

ismissal of

their complaint because the defendant has effectively negated an essential element of their c ase. Without an opposing expert affidavit, the plaintiff ca nnot 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).-3-

In this case, the oncolog ist and nurse filed a joint summary judgment motion supported by their own aff idavits sta

ting tha t their co nduct wa s consi stent wi th the applicable standards of professional practice and

that their treatment of Mr. Hessmer’s mother did not cause her de ath. Once these affidavits were filed, Mr. Hessmer, like any other plaintiff in a

medical malpractice

case, c ould notrest on the allegations in his com plaint. Te nn. R. Civ. P. 56.06. He was req uired to c ome forward with aff idavits by compete nt medica l experts c ontradic ting the assertio ns in the oncologist’s and nurse’s affidavits. He was not someho w exempted f rom this pr

ocedura l require ment simply because he was incarcer

ated.
III.
Mr. Hessmer

asserts t hat the tr ial cour t should ha

ve appoin ted a “sp ecial ma ster” to a ssist him with his case. As he describes it, the role of this special master would ha ve been “speci fi ca ll y t o preform (sic) such tasks that an imprisoned pers on is inc apable for performing.” The re are two fundam enta l problems with Mr. H essmer’ s reques t. First, special masters a

ppointed p

ursuant t o Tenn. R. Civ. P. 53 do not perform the functions Mr. Hessmer say s he needs. Second, incarcerated prisoners have no right to court-appointed assistance with their civil litigation.
Pro se litigants, including pro se prisoner s, have a right to fair and equal treatment by the courts. Whitaker v. W

hirlpool Corp. , 32 S.W.3d 22 2, 227 (Te nn. 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 othe r partie s in order

to be “fa

ir” to pa rties who decid e to represent themselve s. Hodges v. Attorney General , 43 S.W.3d 9 18, 920 (Tenn. Ct. App. 2000). Thus, the courts should

not allow pro se litigants, including incarcerate d prisoners, to shift the burden of the litigati on to the c ourts or to their ad versar ies. Indigent civil litig ants, unlike indigent criminal defendants, possess neither a constitutional nor statutory right to cour

t-appointed assistance. Montgomery v. Pinchak , 294 F.3d 492, 498 (3d Cir. 2002); Foggie ex rel. G eronimo 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 1905 310, 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 circumstanc es to request appointed counsel to assist indigent civil litig ants, this authority is discretionary . The appointme nt of coun sel is not a

ppropria te when the pro se litigant’s claims are frivolous or when the c hances of success are ex tremely thin. Lavado v. Keohane , 992 F.2d 601, 606 (6th Cir. 1993).
Based on this re cord, it

is reasonable to conclude that Mr. Hessmer’s chances of succee ding withthis lawsu

it are extr emely thin. The a

ppointme nt of a “special master,” as he calls it, or a lawyer, would not necessa rily have enabled him to effectively oppose the summary judgment motion filed by the oncolog ist 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 applica ble standard of professional conduct and caused he r d ea th. Because Mr. Hessmer has no colorab le right to a

ppoin ted medical experts, he would be required to find medical experts who would be will ing to don ate their time and e

xpertise to

his cause . The cha

nces of t his are, as a practical matter, slim. Accordingly , we have determined that the trial court did not err by declining to appoint

a “spec ial maste

r” to ass ist Mr. He ssmer with his lawsuit.-4- IV.
We affirm the judgment dismissing Mr. Hessmer’s complaint and re mand the case to the trial co urt for whatever further proceedings may be required. We tax the costs of this appeal to Joh n Allen Hessmer for which execution, if necessary , may issue. We al so have det ermined that this appeal is frivol ous in accordance with Tenn. Code Ann. § 41-21-807(c ) (Supp. 2001) and Tenn. Code Ann. § 41-21- 816 (a)(1) (1997).

_____________________________ WILL IAM C. KOCH, JR., JUDGE