Mario Reyes v. Thomas J. Dart, et al
Filing
Filed opinion of the court by Judge Posner. We VACATE and the case is REMANDED for further proceedings consistent with the opinion. The first order of business for the judge on remand should be to rule on the plaintiff's motion for recruitment of counsel. The second should be to remind the defenants' counsel that the civil rule applicable to his demand for medical records is not Rule 41(b) but Rule 37. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6693080-1] [6693080] [14-3441]
Case: 14-3441
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3441
MARIO REYES,
Plaintiff‐Appellant,
v.
THOMAS J. DART, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 5009 — James B. Zagel, Judge.
____________________
SUBMITTED SEPTEMBER 2, 2015 — DECIDED SEPTEMBER 16, 2015
____________________
Before WOOD, Chief Judge, and POSNER and ROVNER, Cir‐
cuit Judges.
POSNER, Circuit Judge. The plaintiff, a pretrial detainee at
Cook County Jail, brought suit against the Cook County
Sheriff, Thomas Dart, who oversees the jail, and two of the
jail officials, claiming that the defendants had failed to pro‐
tect him from an attack by other prisoners. The district judge
dismissed the suit, with prejudice, in response to a motion
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by the defendants accusing the plaintiff of failing to prose‐
cute his suit.
According to the complaint—the factual allegations of
which have yet to be contested—the plaintiff was stabbed in
the course of the attack and just before losing consciousness
cried out for help but was ignored by an unidentified guard
standing ten to fifteen feet from him. The plaintiff regained
consciousness three days later in a hospital, having suffered
in the attack nerve damage and also a fracture of an eye
socket that may eventually cause blindness in that eye. He
contends that the defendants have culpably failed to create
or enforce policies necessary to protect prisoners from at‐
tacks by fellow prisoners.
After answering the complaint a lawyer for the defend‐
ants sent the plaintiff, over the course of six months in 2014,
five letters, each demanding that he sign a release enclosed
with the letter that would give the defendants’ counsel ac‐
cess to “protected health information” maintained by
“Cermak Health Services/Cermak Hospital/John H. Stroger
Jr. Hospital.” The access sought was not limited to medical
records relating to the plaintiff’s injuries. The release that the
lawyer wanted the plaintiff to sign would have extended to
all his medical records, including records—of no apparent
relevance to this case—relating to “venereal disease, sexually
transmitted diseases, acquire[d] immunodeficiency syn‐
drome (AIDS), human immunodeficiency virus (HIV), or
ARC [AIDS‐related complex].” Nor would the records to be
released be limited to a particular period; the release would
embrace all of the plaintiff’s medical records since his birth
in 1977, nearly forty years ago. Nor would any limitations be
imposed on whom the defendants could disclose the records
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to; they could be disclosed to persons or institutions having
nothing to do with the attack on the plaintiff and the injuries
and medical treatment resulting therefrom.
The letter “advised [the plaintiff] that it is entirely your
decision to sign the release or not,” but continued: “Howev‐
er, I must advise you that failure to sign the release may be
grounds for dismissal of your action in light of the fact that
you are bringing claims for physical injuries. In short, should
you fail to sign and return the release, I will advise the Court
of this failure to do so and request that the matter be dis‐
missed for want of prosecution. The likelihood of dismissal
of your claims for that reason would be significant.”
The plaintiff (who has no lawyer) replied to the third of
the five letters. He explained that he had been treated not at
Stroger Hospital but at Mount Sinai Hospital, and that the
attack against him had occurred back in 2011 and this should
be indicated in any release that he signed. In response the
defendants’ lawyer added Mount Sinai Hospital to the list of
hospitals that the plaintiff would be authorizing to release
his records to the defendants’ counsel, but refused to remove
Stroger Hospital from the list “because it is a county hospital
that often treats Cook County Jail inmates.” Nor would he
rescind his demand for access to medical records dating
from the plaintiff’s birth. Instead, after the fifth letter was
sent and not replied to, he moved the district court to dis‐
miss the complaint under Fed. R. Civ. P. 41(b) (dismissal for
failure to prosecute one’s suit), because the plaintiff hadn’t
signed the release.
Without waiting for a reply from the plaintiff and with‐
out any explanation for its action, the district court issued a
minute order dismissing the suit with prejudice and denying
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the plaintiff’s motion for recruitment of counsel as moot in
light of the dismissal. (The motion had been pending for two
months without action by the judge.) The plaintiff moved for
reconsideration of the dismissal order, but the judge denied
the motion on the ground that the defendants’ counsel had
warned the plaintiff that counsel would move to dismiss the
suit unless the plaintiff signed the release.
The judge erred. Rule 41(b) authorizes dismissal of a suit
if the “plaintiff fails to prosecute [it] or to comply with these
rules or a court order.” There was no failure to comply with
any rule or any court order. Nor in refusing to sign the re‐
lease was the plaintiff failing to prosecute his suit—he was
prosecuting it in part by challenging the defendants’ de‐
mand for unlimited access to and unlimited use of his medi‐
cal records (albeit only such records as counsel might find in
the files of the enumerated medical institutions). The de‐
mand for so comprehensive a release was improper, and the
plaintiff should not have been criticized—let alone thrown
out of court under inapplicable Rule 41(b)—for challenging
it.
The defense counsel’s dispute with the plaintiff over the
latter’s records was, as he failed to acknowledge, merely a
discovery dispute. Counsel wanted a release that would
cover all the records, and when the plaintiff refused, coun‐
sel’s proper recourse would have been to file a motion to
compel under Fed. R. Civ. P. 37. He might also or instead
have moved for an order requiring the plaintiff to submit to
a physical examination by a qualified examiner, pursuant to
Fed. R. Civ. P. 35. He did neither.
A final twist is that the release form that defense counsel
wanted the plaintiff to sign expressly authorizes the signer
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to revoke at any time his authorization to release his medical
records. This would seem to have empowered the plaintiff to
refuse to sign the release in the first place without being
punished for that refusal by dismissal of his suit.
The dismissal, a miscarriage of justice, is vacated and the
case remanded for further proceedings consistent with this
opinion. The first order of business for the judge on remand
should be to rule on the plaintiff’s motion for recruitment of
counsel. The second should be to remind the defendants’
counsel that the civil rule applicable to his demand for med‐
ical records is not Rule 41(b) but Rule 37.
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