Bosley v. Valasco et al

Filing 50

ORDER Granting Defendant's Motion For Production Of Plaintiff's Mental Health Records (ECF No. 46 ), Fourteen-Day Deadline, signed by Magistrate Judge Michael J. Seng on 3/25/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT DEWAYNE BOSLEY, JR.,
Plaintiff,

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v.

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Case No. 1:14-cv-00049-MJS (PC)
ORDER GRANTING DEFENDANT’S
MOTION FOR PRODUCTION OF
PLAINTIFF’S MENTAL HEALTH
RECORDS

M. VALASCO, et al.,
(ECF No. 46)

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Defendants.
FOURTEEN-DAY DEADLINE

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I.

INTRODUCTION
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant’s
motion for production of Plaintiff’s mental health records. (ECF No. 46.) Though Plaintiff
has not filed an opposition to this motion, he has objected previously to the release of
those records as irrelevant.

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II.

PROCEDURAL HISTORY
Plaintiff initiated this action on January 14, 2014, and is proceeding on a second

amended complaint which was found to state a Fourteenth Amendment excessive force
claim against Defendant Valasco for an incident that occurred on December 14, 2013.
(ECF Nos. 13, 14.) Plaintiff seeks $5,000,000 in damages “to buy and purchase proper
Doctor care Mental, Physical, from the 243(a) that happened which left me disabled.”
Previously, Defendant and counsel for the California Department of Corrections
and Rehabilitation (“CDCR”), not a party to this action, filed a “Stipulated Protective
Order re Mental Health Records for Robert Bosley (AT-0274) to be Produced.” (ECF
No. 37.) This protective order concerned a subpoena duces tecum issued by Defendant
and served on CDCR seeking the mental health records of Plaintiff in the custody of
CDCR. Because CDCR is prohibited from releasing mental health records without a
court order or authorization indicating that the documents are necessary, it and
Defendant filed the Stipulated Protective Order.
In declining to adopt the Stipulated Protective Order, this Court held that it could
not make a determination regarding whether the disclosure of Plaintiff's mental health
records is necessary to the administration of justice or supported by good cause. This is
because Defendant had not submitted a copy of the subpoena, and so the Court was
unable to determine if Defendant's request was properly limited to protect Plaintiff's
interest in the confidentiality of such records. Moreover, Plaintiff's allegation that he
suffered “mental anguish” as a result of Defendant's conduct did not support a
wholesale disclosure of all of Plaintiff's mental health records.
The Court afforded the parties the opportunity to file further briefing or motions in
relation to the issue on or before February 8, 2016. The instant motion followed the
Court’s Order.
Pursuant to the subpoena duces tecum served on CDCR, Defendant seeks:

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Complete psychiatric and mental health records of [Plaintiff],
including but not limited to any records / documents that may
be stored digitally and/or electronically; medical records
pertaining to any and all care, treatment, and/or
examinations, all psychiatric, drug and/or alcohol treatment,
counseling, an [sic] rehabilitation records, notes, records,
and reports of psychotherapy diagnosis, evaluation, and
treatment, and any other records relating to mental health.
This request is limited to documents generated, created, or
received at any time from March 1, 2014 to the present.

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Kaur Decl. Ex. 1.

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Shortly after Defendant served CDCR with the subpoena, Plaintiff informed
defense counsel via letter that he objected to the release of all of his mental health
records as irrelevant and offered to provide copies of relevant records. Kaur Decl. Ex. 3.
On December 30, 2015, Plaintiff sent defense counsel copies of some of his mental
health records. Klar Decl. ¶ 15.

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On March 21, 2016, Defendant filed a motion for summary judgment. (ECF No.
48.) There, Defendant argues that summary judgment should be entered for him
because the force that he used was minimal and because Plaintiff’s physical injuries
persist due to his own conduct (failure to keep appointments and failure to comply with
treatment plan for rehabilitation). Alternatively, .Defendant argues that he is entitled to
qualified immunity.

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III.

LEGAL STANDARDS
On December 1, 2015, changes to the Federal Rules of Civil Procedure went into

effect. Relevant here, Federal Rule of Civil Procedure 26(b), which establishes the
scope of discovery, was modified to read: “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and proportional to
the needs of the case….” While the information sought need not be admissible to be
discoverable, it must be balanced against “the importance of the issues at stake in the

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action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b) (2015). Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.
Pursuant to Federal Rule of Civil Procedure 45, a party may serve a subpoena
duces tecum to obtain documents and other tangible things from a non-party. Under
Rule 45 “[a] party cannot object to a subpoena duces tecum served on a nonparty, but
rather, must seek a protective order or file a motion to quash” pursuant to Rule 45(d)(3).
Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005); see also Cal.
Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 643 (E.D. Cal.
2014); Springbrook Lenders v. Northwestern Nat. Ins. Co., 121 F.R.D. 679, 680 (N.D.
Cal. 1988).
Rule 45(d)(3)(A) sets forth the bases for when a court is required to quash or
modify a subpoena. It provides, in pertinent part:

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[o]n timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it (i) fails to
allow a reasonable time to comply; (ii) requires a person to
comply beyond the geographical limits specified in Rule
45(c); (iii) requires disclosure of privileged or other protected
matter, if no exception or waiver applies; or (iv) subjects a
person to undue burden.

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23 Fed. R. Civ. P. 45(d)(3)(A). “Although irrelevance is not among the litany of enumerated
24 reasons for quashing a subpoena found in Rule 45, courts have incorporated relevance
25 as a factor when determining motions to quash a subpoena.” Moon, 232 F.R.D. at 637
26 (citing Goodyear Tire & Rubber Co. v. Kirk's Tire & Auto Servicenter, 211 F.R.D. 658,
27 662 (D. Kan. 2003)). That is, the consideration of undue burden under the rule requires
28 the Court to weigh the burden of the subpoenaed party against the requested
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information's relevancy, need of the serving party for the information, the breadth of the
information requested, the time period covered by the request, and the particularity with
which the request is made. See id.

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While California Welfare and Institutions Code § 5328 prohibits the release of
mental health records, release of such documents are permissible pursuant to the
consent of the patient and/or a court order “as necessary to the administration of
justice.”1 Cal. Welfare and Institutions Code § 5328(b), (f). Insofar as any privileges are
asserted in federal question cases, they are to be determined under federal law. Fed. R.
Evid. 501; United States v. Zolin, 491 U.S. 554, 562 (1989).

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IV.

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DISCUSSION
Defendant moves for the release of plaintiff’s mental health records from March

1, 2014, through the present, as (a) relevant pursuant to Rule 26(b) of the Federal
Rules of Civil Procedure and (b) necessary to the administration of justice pursuant to
California Welfare and Institutions Code §5328(f).2 This motion is based on various
statements made by Plaintiff during the course of this litigation. First, in his second
amended complaint, Plaintiff claims that he suffered “mental anguish” due to
Defendant’s conduct. Next, by way of relief, Plaintiff seeks $5,000,000 in damages “to
buy and purchase proper Doctor care Mental, ….” Third, during his November 24, 2014,
deposition, Plaintiff made the following comments:

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Although not raised by either party, release of this information is also prohibited under the Health
Insurance Portability and Accountability Act, Pub. L. 104–191, 110 Stat.1936, 42 U.S.C. § 1320d. See 45
C.F.R. § 164.502(a) However, health care providers are permitted to disclose medical records in
response to a court order. See 45 C.F.R. § 164.512(e)(1).
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Defendant also moves for the disclosure of Plaintiff’s mental health records pursuant to 42 U.S.C.
§290dd-2, which concerns records “which are maintained in connection with the performance of any
program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation,
or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency
of the United States….” Since the CDCR is not a “department or agency of the United States,” and there
is no allegation that Plaintiff’s mental health records relate to substance abuse, it appears that this
provision is inapplicable to the matter before the Court.

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Q.
Okay. And did you see any doctors there for your
injuries.

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A.

Yes.

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Q.

Okay. Who did you see?

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A.

I seen – I cannot recall the names.

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Dr. Berberich, psychologist Berberich – well, not
psychologist Berberich. I can’t remember – he is a
psychiatrist. I don’t have the documentations with me in
order to get the right names, but if I have the
documentations I do have notations in my possession where
I spoke about my psychological problems. I kind of feel that
everyone – just basic depression and stuff like that.

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Q.
Did you see him for the December incident or just
overall?
A.
Everything is from the December incident, every
psychological thing that I’ve been going through.

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17 Defendant’s actions and is currently seeing a psychiatrist. Klar Decl. ¶ 13.
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Defendant contends that he should be allowed the opportunity to review

19 Plaintiff’s mental health records so that he may determine the nature and degree of
20 Plaintiff’s mental health issues allegedly caused by Defendant’s actions, and so that he
21 can assess Plaintiff’s claim for damages. Defendant’s points are well-taken. Plaintiff’s
22 statements that he suffered from, and sought treatment for, mental distress caused by
23 Defendant’s conduct has put his mental health at issue in this case. The Court overrules
24 Plaintiff’s earlier objection on grounds of irrelevancy. Plaintiff has not filed an opposition
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The Court finds the documents to be relevant to Plaintiff’s claim and to issues,

27 such as causation and damages, relevant to Defendant’s defense. Accordingly,
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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s motion for
production of Plaintiff’s mental health records (ECF No. 46) is GRANTED. CDCR shall
produce these documents to Defendant within fourteen (14) days of the date of this
Order.

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Dated:

March 25, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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