Camp et al v. Correctional Medical Services, Inc. et al

Filing 49

MEMORANDUM OPINION AND ORDER that 33 Motion to Compel and 42 Motion for Protective Order are GRANTED in part and DENIED in part as further set out; and that 33 Motion for Sanctions is DENIED. Signed by Honorable Charles S. Coody on 12/9/2008. (cb, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION DR. LARRY CAMP and SABRINA M A R T IN D A L E , Plaintiffs, v. CORRECTIONAL MEDICAL SERVICES, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

CIVIL ACT. NO. 2:08cv227-WKW (WO)

M E M O R A N D U M OPINION and ORDER N o w pending before the court is the plaintiffs' motion to compel and motion for s a n c tio n s (doc. # 33) and the defendants' motion for a protective order (doc. # 42). The p la in tif f s assert that they are entitled to discovery regarding applications, resumes, and p e rs o n n e l files of employees at Limestone Correctional Facility ("Limestone") as well as in f o rm a tio n regarding complaints about dental services at Limestone. In response to the m o tio n to compel, the defendants filed a motion for a protective order arguing that the p la in tif f s are seeking "irrelevant, frivolous, annoying and harassing discovery." (Doc. # 42 a t 1). Aside from all the hyperbolic rhetoric, the parties' disagreement is about the scope of d is c o v e ry that should be permitted in this case. The court heard oral argument on the m o tio n s on December 2, 2008. After careful review of the motion to compel and motion for a protective order, the briefs filed in support of and in opposition to the motions, and the arg u m en t of counsel, the court concludes that the motion to compel and motion for a

p ro tec tiv e order are due to be granted in part and denied in part. I n this § 1983 action, the plaintiffs complain that the defendants retaliated against th e m for "engaging in speech on matters of public concern, including the abuse and m is tre a tm e n t of Alabama prisoners, in violation of the First and Fourteenth Amendments." (A m e n d e d Compl. at 23, ¶ 93). The plaintiffs name as defendants Correctional Medical S e rv ic e s, Inc. ("CMS"), the Commissioner of the Alabama Department of Corrections (" A D O C " ) Richard Allen ("Allen"), Alabama Associate Commissioner Ruth Naglich (" N a g lic h " ), and ADOC Medical Systems Administrator Laura Ferrell ("Ferrell"). Some factual background is necessary for full understanding of the court's resolution o f the discovery issues.1 In 2003, while working as a dentist for Prison Health Services (" P H S " ) at Limestone, plaintiffs Larry Camp ("Camp") and Sabrina Martindale (" M a rtin d a le " ) reported to PHS misconduct by their supervisor who was also the Director o f Dental Services for the ADOC, Dr. David Michael West ("West"). Defendant Ferrell w h o was employed by PHS as a regional vice-president, received a copy of the plaintiffs' re p o rt against West as did the ADOC Commissioner. Camp also reported West to the A la b a m a Board of Dental Examiners. Shortly thereafter, Camp was terminated by PHS, and M a rtin d a le was fired after she testified against West before the Dental Board. In 2006, Ferrell left PHS and began work as the ADOC's Medical Systems A d m in istra to r. In 2007, the ADOC entered into a medical and dental services contract with
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In reciting the facts, the court makes no findings and takes the facts as set forth in the plaintiffs'

filings.

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C M S . The contract requires CMS to employ a dentist and dental assistant at Limestone. In O c to b e r, 2007, Camp applied for a staff dentist position at Limestone. CMS's Director of D e n ta l Services, Dr. King, contacted the employment recruiter to request that Camp be hired a t a salary of $75.00 per hour. The recruiter contacted Larry Linton, CMS's Regional ViceP r e sid e n t, to request permission to hire Camp. Linton in turn emailed Naglich, Ferrell and B ra n d o n Kinard at the ADOC asking for guidance regarding hiring Camp.2 Ferrell

re sp o n d e d "Absolutely not," and then informed Linton that Camp was the dentist "who had u s all before the State Dental Board [regarding] Dr. Mike West." (Ex. E. attached to Compl.) L in to n directed the recruiter to stop pursuing Dr. Camp. (Id.) Martindale also applied for employment with CMS. After an interview, Martindale w a s offered a dental assistant position by Debbie Hunt, CMS's Health Services A d m in is tra to r. Thereafter, according to the plaintiffs, Naglich requested that Linton rescind C M S ' s offer of employment to Martindale, allegedly because Martindale had falsified her tim e records while employed by PHS. (Amended Compl. at 15, ¶ 60-61). Because Camp a n d Martindale were not hired, inmates at Limestone were without dental care for a period o f time. T h e plaintiffs contend that they were not hired by CMS in retaliation for exercising their First Amendment constitutional right to free speech on matters of public concern re g a rd in g West and the dental care at Limestone in 2003. The defendants assert that Camp
The email reads as follows. "I heard Dr. Camp, dentist, has a history in Alabama. He wants to work for us at Limestone ­ any guidance?" (Ex. E. attached to Compl.).
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a n d Martindale were not hired by CMS because they falsified time records during their e m p lo ym e n t with PHS, and not because they reported misconduct by West. F ED.R .C IV.P . 26(b)(1) provides that "[p]arties may obtain discovery regarding any n o n p riv ile g e d matter that is relevant to any party's claim or defense . . . " The Committee C o m m e n t s to FED.R.CYIV.P. 26 confirm that requiring relevance to a claim or defense " sig n a ls to the court that it has the authority to confine discovery to the claims and defenses asse rted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings." GAP R e p o rt of Advisory Committee to 2000 amendments to Rule 26. In determining what discovery to allow, the court is likewise guided by some other f u n d a m e n ta l principles. "Relevant information need not be admissible at the trial if the d is c o v e ry appears reasonably calculated to lead to the discovery of admissible evidence." F ED.R .C IV.P . 26(b)(1). [D ]istrict courts have broad discretion in fashioning discovery rulings, they are b o u n d to adhere "to the liberal spirit of the [Federal] Rules." Burns v. Thiokol C h e m . Corp., 483 F.2d 300, 305 (5th Cir. 1973). The Federal Rules do not g iv e district courts "blanket authorization . . . to prohibit disclosure of in f o rm a tio n whenever it deems it advisable to do so, but is rather a grant of p o w e r to impose conditions on discovery in order to prevent injury, h a r a s s m e n t, or abuse of the court's processes." Williams v. City of Dothan, A la ., 745 F.2d 1406, 1416 (11 th Cir. 1984) (quoting Bridge C.A.T. Scan Assocs. v . Technicare Corp., 710 F.2d 940, 944-45 (2nd Cir. 1983)). Adkins v. Christie, 488 F.3d 1324, 1331 (11 th Cir. 2007). " R u le 26 . . . [(b)(1)] is highly flexible, having been designed to accommodate all

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re le v a n t interests as they arise . . . " U. S. v. Microsoft Corp., 165 F.3d 952, 959-60 (D.C. C ir. 1999). In particular, considerations of the public interest, the need for confidentiality, a n d privacy interests are relevant factors to be balanced. See, e.g., Seattle Times Co. v. R h i n e h a r t, 467 U.S. 20, 35 n. 21 (1984) ("Although ... Rule [26(c)] contains no specific re f e re n ce to privacy or to other rights or interests that may be implicated, such matters are im p licit in the broad purpose and language of the Rule."). A t issue in this case are six requests for production of documents and four topics d u r in g the deposition of CMS's FED. R. CIV. P. 30(b)(6) corporate representative. Document re q u e sts # 2, 3, 7, 8, and 9 all relate to personnel files of applicants and employees at L im e sto n e . Document request # 2 asks for "[a]ll employment applications and/or resumes r e c e iv e d by CMS since January 1, 2007 for dentists, dental assistant or dental hygienist p o s itio n s at (or covering) Limestone Correctional Facility." Document request # 3 seeks " [ t]h e complete personnel file of all dentists, dental assistants, and dental hygienists e m p lo ye d by CMS and responsible for the provisions of medical or dental services at L im e sto n e Correctional Facility." Document requests # 7, 8 and 9 seek the same information f o r three CMS employees, Alicia Davis, a CMS dental assistant/hygienist, Debra Hunt, C M S 's Health Services Administrator, and Dr. Mark King, a CMS dentist, respectively. T o the extent not already produced in response to Request No. 3, . . . complete p e r s o n n e l files to include any and all applications for employment, resumes, e m p l o ym e n t files, records of all positions held, job descriptions of positions a p p lie d for and/or received, requests for reference information, requests for c r e d e n t ia lin g information, background checks, payroll records, W-2 forms, 1 0 9 9 forms and W-4 forms, performance evaluations and reports, disciplinary

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w a rn in g s or notices, statements and reports of fellow employees, attendance r e c o rd s and files. (D o c. # 33, Ex. C). It is undisputed that the defendants produced the requested personnel files. However, w a g e , licensing, and arrest history information were redacted from the files. Consequently, th e parties' dispute centers around these discrete areas of inquiry. The plaintiffs contend that the wage information is "directly related" to their damages. ( D o c . # 33 at 14). As noted, FED. R. CIV. P. 26(b)(1) permits the discovery of any matter w h ic h is relevant to a claim or defense. However, FED. R. CIV. P. 26(c)(1) also permits the c o u rt to limit discovery or prescribe a different method of discovery. Id. While the court a g re e s that the plaintiffs are entitled to some wage information, their requests to scour c o m p l e te personnel files for this information are overbroad and due to be narrowed. Thus, th e court concludes that the defendants should produce, without reference to the individual e m p l o ye e s , the rates of pay and a full description of benefits for dentists, dental hygienists, a n d dental assistants at Limestone. The plaintiffs also argue that the arrest histories and "licensing information" of other C M S employees is necessary to challenge the defendants' reasons for not hiring Camp and M a rtin d a le . According to the plaintiffs, this information goes to the truthfulness of the d e f en d a n ts ' explanations for not hiring Camp and Martindale and is necessary to attack the d ef en d an ts ' reasons as pretextual. While the plaintiffs again seek broad discovery, the court c a n n o t say that some information regarding criminal convictions or employment misconduct,

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ev en if inadmissible at trial, will not lead to discoverable information. Accordingly, the court w ill require the defendants to produce information about criminal convictions or employment m is c o n d u c t of any dentist, dental assistant, dental hygienist or other CMS employee in the m e d ica l or medical related field who is employed at Limestone. In addition, the court will re q u ire the defendants to produce licensing information about any CMS dentist, dental assistan t, dental hygienist and other employee in the medical or medical related field who are e m p lo ye d at Limestone and have had their license suspended, revoked or limited for any re a so n in any state. W ith respect to document request # 23, the plaintiffs seek "[a]ll documents reflecting o r evidencing any complaint, charge or grievance by a person assigned to Limestone C o rre c tio n a l Facility (including inmates) concerning the provision (or lack thereof) of dental se rv ice s since January 1, 2002.3 (Doc. # 33, Ex. C). According to the plaintiffs, this in f o rm a tio n "may support an award of punitive damages against the Defendants" because the d ef en d an ts ' failure to hire Camp and Martindale "appears to have caused the prisonerp a tie n ts at Limestone to suffer needlessly." (Doc. # 33 at 14-15). While the court agrees that f a ilu re to provide constitutionally adequate dental care to prisoners is unacceptable, the p la in tif f s cannot improve their damage claim based on harms or injuries to others. Finally, we can find no authority supporting the use of punitive damages a w a rd s for the purpose of punishing a defendant for harming others. We have s a id that it may be appropriate to consider the reasonableness of a punitive d a m a g e s award in light of the potential harm the defendant's conduct could
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The plaintiffs have since limited this request to November 1, 2007.

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h av e caused. But we have made clear that the potential harm at issue was harm p o te n tia lly caused the plaintiff. See State Farm, supra, at 424, 123 S.Ct. 1513 (" [ W ]e have been reluctant to identify concrete constitutional limits on the ra tio between harm, or potential harm, to the plaintiff and the punitive damages a w a rd " (emphasis added)). See also TXO, 509 U.S., at 460-462, 113 S.Ct. 2 7 1 1 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term "errorf re e " (in BMW) to describe a lower court punitive damages calculation that lik e ly included harm to others in the equation. 517 U.S., at 568, n. 11, 116 S .C t. 1589. But context makes clear that the term "error-free" in the BMW f o o tn o te referred to errors relevant to the case at hand. Although elsewhere in B M W we noted that there was no suggestion that the plaintiff "or any other B M W purchaser was threatened with any additional potential harm" by the d e f e n d a n t's conduct, we did not purport to decide the question of harm to o th e rs . Id., at 582, 116 S.Ct. 1589. Rather, the opinion appears to have left the q u e stio n open. P h ilip Morris USA v. Williams, 127 S.Ct. 1057, 1063 -1064 (2007). T h e evidence appears to be undisputed that CMS did not hire another dentist or dental a s s i s ta n t/d e n ta l hygienist for some period of time after it declined to hire Camp and M artin d ale. Absent other evidence, a reasonable person and certainly a reasonable jury w o u ld know that during that time inmates did not receive dental care. The plaintiffs seek to u se the inmate grievances and complaints merely to quantify the magnitude of harm allegedly c a u se d the inmates. However, it is difficult to understand how an inmate's grievance could r e a so n a b l y quantify either the inmate's harm or Camp and Martindale's damages. A c c o rd in g ly, the plaintiff's motion to compel a response to document request # 23 will be d e n ie d and the defendants' motion for a protective order regarding request # 23 will be g r a n te d . N e x t, the plaintiffs seek to compel the defendants to designate a "knowledgeable

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c o rp o ra te representation to testify on four different topics set forth in the Rule 30(b)(6) d e p o sitio n notice, Topics 28, 31-32 and 36." (Doc. # 33 at 15). The topics at issue are as f o l lo w s : T o p ic 28: T h e reasons, if any, CMS has denied any person's application to w o r k at an Alabama prison or correctional facility in the last tw e lv e months. T h e identity of all CMS employees with knowledge of either P la in tif f 's (sic) or complaints regarding Dr. David Michael W e st. The identity of each prisoner incarcerated at Limestone that has f ile d a charge, grievance, or complaint about the medical or d en tal services provided by CMS, the nature of each prisoner's c h a rg e , grievance or complaint, and the current status or d is p o s itio n of the same. T h e identity of all CMS employees or contractors working or w h o have worked in Alabama since November 1, 2007 who (1) h a v e had their medical or dental license revoked or suspended; (2 ) have been sanctioned by a licensing board; and/or (3) had an e x p ire d medical or dental license at the time he or she performed d e n ta l or medical services on prisoners in Alabama.

T o p ic 31:

T o p ic 32:

T o p ic 36:

(D o c . # 33 at 12). A Rule 30(b)(6) deposition is simply not the appropriate discovery mechanism to se c u re the type of information covered by these broad topic designations. The court is d o u b tf u l a single corporate representative could provide to the plaintiffs the information they s e e k .4 Accordingly, with respect to designation of a corporate representative to testify

To the extent that the plaintiffs require the defendants to designate the "most knowledgeable" person, the defendants are only required to designate a person to "testify about information known or reasonably available to the organization." . FED. R. CIV. P. 30(b)(6). Nothing in the Rule mandates the

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re g a rd in g topics 28, 31, 32 and 36, the plaintiffs' motion to compel will be denied and the d e f e n d a n ts ' motion for a protective order will be granted. Finally, the plaintiffs seek to have the defendants sanctioned for willfully failing to d e sig n a te an appropriate representative to answer questions on the topics designated. For the s im p le reason that the level of generality of the topics would make it virtually impossible for a single representative to be able to adequately respond to the topics of inquiry, the court d e c lin e s to sanction the defendants. The plaintiffs' motion for sanctions will be denied. A c c o rd in g ly, for the reasons as stated, it is O R D E R E D as follows: 1. T h a t the plaintiffs' motion to compel wage information be and is hereby G R A N T E D to the extent that the defendants shall produce, without reference to the individual employees, the rates of pay for dentists, dental hygienists, and d e n ta l assistants at Limestone. In all other respects, the defendants' motion for a protective order regarding wage information be and is hereby GRANTED. 2. T h a t the plaintiffs' motion to compel arrest histories be and is hereby G R A N T E D to the extent that the defendants shall produce information about c rim in a l convictions or employment misconduct of any CMS dentist, dental a ss is ta n t, dental hygienist or other employee in the medical or medical related f ie ld who is employed at Limestone. In all other respects, the defendants'

defendants put up "their most knowledgeable" person.

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m o tio n for a protective order regarding arrest information be and is hereby G RA N TED . 3. That the plaintiffs' motion to compel licensing information be and is hereby G R A N T E D to the extent that the defendants shall produce information about lic e n s in g information about any CMS dentist, dental assistant, dental hygienist o r other employee in the medical or medical related field who is employed at L im e sto n e and had their license revoked, suspended or limited for any reason in any state. In all other respects, the defendants' motion for a protective order re g a rd in g licensing information be and is hereby GRANTED. 4. T h e plaintiffs' motion to compel a response to document request # 23 be and is hereby DENIED. The defendants' motion for a protective order regarding re q u e s t # 23 be and is hereby GRANTED. 5. T h e plaintiffs' motion to compel the defendants to designate a knowledgeable c o rp o ra te representative be and is hereby DENIED. The defendants' motion f o r a protective order regarding the corporate representative designation be and is hereby GRANTED. 6. T h e plaintiffs' motion for sanctions be and is hereby DENIED.

D o n e this 9 th day of December, 2008.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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