Moore v. Campbell et al
ORDER denying 36 Plaintiff's Second Motion to Compel. Signed by Magistrate Judge J. Thomas Ray on 01/12/2012. (kcs)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TIMOTHY RAMON MOORE,
Chief Operations Officer,
Correctional Medical Services, Inc., et al.
Plaintiff, Timothy Ramon Moore, is a prisoner in the Maximum Security Unit
(“MSU”) of the Arkansas Department of Correction. In this pro se § 1983 action, he
alleges that several individual Defendants failed to provide him with constitutionally
adequate medical care for intraocular pressure and cataracts. See docket entry #2. He
also contends that Defendant Correctional Medical Services, Inc., (“CMS”) had an
unconstitutional policy of limiting prisoners to no more than one eye exam every two
Plaintiff has recently filed a Second Motion to Compel Defendants to respond
to his September 2011 Interrogatories and Requests for Production. See docket entry
#36. Defendants have now filed a Response to that Motion. See docket entry #43.
The Court will discuss each challenged discovery request separately.
In Interrogatory #1, Plaintiff asked Defendants to provide the names of “every
CEO, COO, or head executive for CMS, Inc.” See docket entry #36, Ex. C at 1.
Defendants correctly objected to this discovery request as being over broad and
seeking irrelevant information. Id.
As explained in the December 13, 2011 Recommended Partial Disposition, the
relevant inquiries are: (1) whether CMS, in fact, had such a policy of limiting all
prisoners to no more than one eye exam every two years; and (2) if so, the names of
the specific CMS officers or employees who were responsible for enacting,
implementing, or enforcing that policy.1 See docket entry #39. Thus, the Motion to
Compel is denied as to Interrogatory #1.
In Interrogatory #3, Plaintiff asked Defendants to “explain plaintiff’s medical
condition which surrounds the issues in this complaint.” See docket entry #36, Ex. C
at 1. Defendants responded to this request by providing Plaintiff with access to his
Plaintiff has until February 13, 2012 to obtain this information and otherwise
complete discovery. See docket entry #37.
prison medical records. Id.
On November 10, 2011, the Court found Defendants’ response to be proper.
See docket entry #31. Additionally, the Court concluded that Defendants had made
adequate arrangements for Plaintiff to review his medical records at the MSU. Id.
Finally, the Court explained that, if Plaintiff did not receive adequate access to his
medical records, he must first attempt to resolve the matter with opposing counsel.
Only if he was unable to do so, could Plaintiff then file a Motion to Compel. Id. at 2-3
(citing Fed. R. Civ. P. 37(a)(1) and Local Rule 7.2(g)).
In his Second Motion to Compel, Plaintiff argues that he is not being provided
with any access to his medical records. See docket entry #36. Despite the clear
instructions in the November 10, 2011 Order, Plaintiff has not made any attempts to
resolve this matter with opposing counsel. More importantly, Defendants have
provided unrefutted evidence demonstrating that: (1) Plaintiff requested access to his
medical records on November 2, December 14, and December 16; and (2) he was
allowed to review his medical records at the MSU on November 8 and December 21.
See docket entry #43, Ex. B. Accordingly, the Motion to Compel is denied as to
In Interrogatory #4, Plaintiff asked Defendants if he “ever received grievance
responses from the infirmary or CMS authorities that provided that there was merit
to [his] complaints about his eyes or medical problems in obtaining medical treatment
by any CMS authorities.” See docket entry #35, Ex. C at 2. Defendants responded
by explaining that they did not know what grievance responses Plaintiff actually
received. Id. The also stated that the grievance responses speak for themselves. Id.
The Court finds Defendants’ response to be proper. Thus, the Motion to Compel
is denied as to Interrogatory #4.
In Interrogatory #6, Plaintiff asked Defendants to explain whether they were
“obligated to do a follow-up within two (2) weeks from the surgery that took place on
or about Tuesday, June 21, 2011, and if no, why not.”2 See docket entry #36, Ex. C
at 2 (emphasis added). Defendants responded to this discovery request by explaining
that “physicians and mid level providers may utilize their medical judgment in
recommending that a follow-up be scheduled and when such should occur, all in
conjunction with and coordinating with the outside provider.” Id. at 3.
The Complaint was filed on May 27, 2011. See docket entry #2. Neither
party has explained: (1) what type of surgery Plaintiff had on June 21, 2011; (2) who
performed the surgery; and (3) whether the surgeon recommended that CMS medical
personnel perform any follow-up exams.
As medically trained personnel, Defendants are entitled to use their professional
judgment when making treatment decisions.3 Thus, the Motion to Compel is denied
as to Interrogatory #6.
In Interrogatory #6, Plaintiff asked Defendants to explain whether he “had to
initiate the grievance process because of not receiving the follow-up from the surgery
of June 21, 2011.” See docket entry #36, Ex. C at 3. Defendants responded by
explaining that they “do not know.” Id.
The ADC, not CMS, makes and enforces the prison grievance procedures. None
of the named Defendants are ADC employees. Thus, the Motion to Compel is denied
as to Interrogatory #7.
In Interrogatory #8, Plaintiff asked Defendants to provide “the whereabouts of
each and every named Defendant.” See docket entry #36, Ex. C at 3. The Court
agrees that Defendants, who have already been served, are not required to provide
Plaintiff with that information.
Perhaps, Plaintiff should have asked whether the surgeon “recommended” a
follow-up appointment within two weeks, and if so, why Defendants decided, in their
professional judgment, not to schedule such an appointment.
IT IS THEREFORE ORDERED THAT Plaintiff’s Second Motion to Compel
(docket entry #36) is DENIED.
Dated this 12th day of January, 2012.
UNITED STATES MAGISTRATE JUDGE
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