Asberry v. Cate et al

Filing 164

ORDER signed by Magistrate Judge Kendall J. Newman on 06/04/14 ordering that within 14 days defendant Ali shall file a supplemental response to interrogatory no. 14; within 14 days, defendants shall file a request to file under seal inmate Wilson� 39;s mental health records from January 2009 through January 2010, and a request for a protective order; if these records cannot be located at the Health Records Center, defendants shall inform the court within that time with a declaration by the person who conducted the search. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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No. 2: 11-cv-2462 KJM KJN P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On March 31, 2014, the undersigned directed defendants to file further

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briefing regarding two requests contained in plaintiff’s motion to compel. (ECF No. 151.) On

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April 17, 2014, defendants filed a response to the March 31, 2014 order. (ECF No. 152.) For the

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following reasons, defendants are directed to supplement their April 17, 2014 response.

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Plaintiff’s Claims

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Plaintiff’s claims relevant to the pending motion arise from a cell move on January 25,

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2010. Plaintiff alleges that he was assaulted by his new cellmate, inmate Wilson, the following

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day, during which plaintiff suffered injuries to his back and neck. Plaintiff alleges that defendants

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failed to protect plaintiff from inmate Wilson. Plaintiff alleges that inmate Wilson had mental

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problems and was improperly classified. Plaintiff alleges that he received inadequate medical

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care for the injuries he suffered as a result of the attack by inmate Wilson.
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Plaintiff alleges failure to protect claims against defendants Elson, Phelps, Virga and

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Chen. In particular, plaintiff alleges that defendant Elson brought inmate Wilson to plaintiff’s

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cell. (ECF No. 49 at 7.) Plaintiff alleges that after the incident involving inmate Wilson,

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defendant Phelps told plaintiff that he (Phelps) made the cell move knowing that inmate Wilson

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had serious mental problems. (Id. at 9.) Plaintiff also alleges that just prior to becoming

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plaintiff’s cellmate, inmate Wilson was housed in administrative segregation (“ad seg”). (Id. at

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11.) Plaintiff alleges that while housed in ad seg, inmate Wilson behaved in a way consistent

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with someone with mental health problems. (Id.) Plaintiff alleges that B-4 and ad seg staff knew

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that inmate Wilson suffered from serious mental health problems. (Id. at 12.)
Plaintiff alleges that defendant Chen was inmate Wilson’s treating psychiatrist prior to

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inmate Wilson being housed with plaintiff. (Id.) Plaintiff alleges that defendant Virga, as a

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member of the weekly classification committee, was responsible for classifying all ad seg

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inmates, including inmate Wilson. (Id.) Plaintiff is alleging that defendants Chen and Virga were

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responsible for inmate Wilson’s wrongful change in classification which resulted in inmate

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Wilson being housed with plaintiff.

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Discussion

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Defendant Ali’s Response to Interrogatory No. 14

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In the March 31, 2014 order, the undersigned directed defendant Ali to file a supplemental

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response to plaintiff’s interrogatory 14. (ECF No. 151 at 6-7.) This interrogatory asked

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defendant Ali to describe the difference between the x-rays and MRI’s taken of plaintiff’s lower

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back prior to January 26, 2010, and those taken after that date. Defendant Ali responded that he

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did not have possession, custody or control of any x-rays or MRIs taken of plaintiff prior to

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January 26, 2010, and therefore, could not respond to interrogatory no. 14. (Id.)
In the March 31, 2014 order, the court found that it was unclear from defendant Ali’s

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response to interrogatory no. 14 whether he was claiming that he did not have access to any x-

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rays or MRIs prior to January 26, 2010, because neither of these tests were performed. (Id.) The

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court directed defendant Ali to clarify his response.

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In his supplemental response, defendant Ali states that he is not in possession, control or

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custody of any x-rays or MRIs taken of plaintiff prior to January 26, 2010. (ECF No. 152-1 at

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16.) Defendant Ali states that he has been informed that his attorney requested plaintiff’s medical

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records from January 1, 2009, to the present, but that no x-ray or MRI reports have been located

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that predate January 26, 2010. (Id.) Defendant states that he will supplement his response to the

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interrogatory in the event that an x-ray or MRI report is located. (Id.)

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In a pleading filed May 27, 2014, plaintiff states that after having an Olsen review of his

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medical records, he obtained x-rays of his lower back from April 1, 2008, and February 18, 2010.

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(ECF No. 159.) Attached to plaintiff’s pleading are what appear to be reports from these x-rays.

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(Id.)
Plaintiff’s interrogatory no. 14 did not limit the date of any x-ray or MRI taken of his back

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prior to January 2010. Defendant did not make any objection to plaintiff’s open-ended request

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for x-ray and MRI comparisons. In any event, plaintiff’s request for defendant Ali to compare x-

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rays from April 2008 and February 2010 is not unreasonable. Accordingly, defendant Ali is

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directed to file a supplemental response to plaintiff’s interrogatory no. 14 based on the alleged x-

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ray reports attached to plaintiff’s May 27, 2014 pleading.

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Inmate Wilson’s Mental Health Records

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In the motion to compel, addressed in the March 31, 2014, order, plaintiff alleged that

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defendants denied his request to review inmate Wilson’s mental health records. In the March 31,

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2014 order, the undersigned directed defendants to supplement their objection that they did not

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have custody or control over inmate Wilson’s mental health records for the years prior to the

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alleged incident. (ECF No. 151 at 5.) Defendants were directed to address the location of these

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records and why they could not be obtained with reasonable efforts. (Id.) If, upon further

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inquiry, defendants determined that they did have access to these records, defendants were

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directed to file them under seal. (Id.)

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Defendants’ response to the March 31, 2014 order sets forth four reasons why inmate

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Wilson’s mental health records cannot be produced. First, defendants state that because inmate

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Wilson is on parole, his records are not kept in the electronic Unit Health Record, which would be
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accessible to medical defendants. Instead, inmate Wilson’s records are located at the Health

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Records Center, and are presumably archived. Defendants argue that because the records are

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presumably archived, the individual defendants do not have possession, custody or control of the

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records. Defense counsel also represents that she has requested that the Health Records Center

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look for inmate Wilson’s medical file and inform defense counsel if the records contain inmate

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Wilson’s mental health records from January 2009 through January 2010.

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As discussed in the March 31, 2014 order, Federal Rule of Civil Procedure 34 empowers a

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party to serve on any other party a request to produce “any designated documents ... which are in

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the possession, custody or control of the party upon whom the request is served.” Fed. R. Civ. P.

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34(a). Documents are in the “possession, custody, or control” of the served party if the party has

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actual possession, custody, or control, or has “the legal right to obtain the documents on demand.”

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U.S. v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).

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The court agrees that defendants do not have actual possession, custody or control over

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the at-issue records if they are archived. However, for the reasons stated herein, the undersigned

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finds that defendants have now shown that they do not have a legal right to obtain these records.

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In their second point, defendants argue that the Office of the Attorney General is

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permitted to obtain an inmate’s medical records for purposes of defending employees of the

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California Department of Corrections and Rehabilitation (“CDCR”). In a declaration submitted

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in support of the further briefing, defense counsel states that she contacted senior staff counsel

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with the California Receiver’s Office who informed her that the Attorney General’s office is able

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to obtain an inmate’s medical records for purposes of defending litigation. (ECF No. 152-1 at 2.)

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Plaintiff’s primary contention concerns Wilson’s mental health history and

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appropriateness of being celled with plaintiff. Nevertheless, in her declaration, defense counsel

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states that she has not requested or reviewed inmate Wilson’s mental health records in the course

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of defending this action. (Id.) Defendants’ objection that they cannot provide the records

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because they are not sought for purposes of defending litigation is without merit.

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Defendants also argue that plaintiff’s Eighth Amendment claim against them turns on
what they knew at the time they double celled plaintiff with inmate Wilson, and not what they
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should have known based on inmate Wilson’s medical file. This argument is untimely as it

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should have been raised in defendants’ opposition to plaintiff’s motion to compel. This argument

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is not relevant to the issue of whether defendants have access to inmate Wilson’s records.

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Nevertheless, for the reasons stated herein, this argument is also without merit.

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular,

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prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id.

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at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to

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protect inmates from attacks by other inmates or from dangerous conditions at the prison violates

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the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is,

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objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent

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to inmate safety. Farmer, 511 U.S. at 834; Hearns, 413 F.3d at 1040–41.

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Plaintiff is alleging that defendants knew that inmate Wilson had serious mental health

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problems. Inmate Wilson’s mental health records are relevant to this claim and may also lead to

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relevant evidence. Defendants’ suggestion that inmate Wilson’s mental health records are not

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relevant is without merit.

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In their third point, defendants argue that without an expert report, inmate Wilson’s

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mental health records will offer little guidance to the court. If the undersigned or trial judge

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determines that an expert is required in order to evaluate inmate Wilson’s records, an expert may

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be appointed.

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Defendants also argue that even if the court felt that certain portions of the records should

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be reviewed by plaintiff, safety and security concerns would be at issue. Defendants argue that

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because plaintiff should not be permitted to review or have access to inmate Wilson’s mental

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health records for safety and security reasons, they cannot be entered at trial or relied on in a

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dispositive motion.

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The undersigned acknowledges the serious safety and security issues that would arise

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were plaintiff to have access to inmate Wilson’s mental health records. Assuming that the court

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determines that no portion of the records should be disclosed to plaintiff, there are various
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procedures by which the records may be considered by the court in the context of a dispositive

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motion and at trial which take into account the relevant safety and security concerns.

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In their fourth point, defendants argue that plaintiff had the ability to request a subpoena

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for inmate Wilson’s records from the court while discovery was still open. Defendants argue that

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a subpoena was the appropriate manner in which to seek the records. This argument is not

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relevant to the issue of whether defendants have access to inmate Wilson’s records. This

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argument is untimely as it should have been raised in defendants’ opposition to plaintiff’s motion

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to compel. Nevertheless, the undersigned finds that plaintiff’s request for inmate Wilson’s

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records, through the discovery process, rather than by way of a subpoena, was not improper.
For the reasons discussed above, the undersigned finds that defendant’ arguments

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regarding why they do not have access to inmate Wilson’s relevant mental health records are

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unpersuasive. Within fourteen days of the date of this order, defense counsel shall determine

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whether inmate Wilson’s mental health records from January 2009 through January 2010 have

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been located in the archives. If the records have been located, within fourteen days, defense

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counsel shall file a request to file these records under seal, pursuant to Local Rule 141, and a

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request for a protective order pursuant to the Health Insurance and Portability and Accountability

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Act (“HIPAA”).1 If the records cannot be located at the Health Records Center, defendants shall

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inform the court within that time with a declaration from the person who conducted the search.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days defendant Ali shall

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file a supplemental response to interrogatory no. 14; within fourteen days, defendants shall file a

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request to file under seal inmate Wilson’s mental health records from January 2009 through

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January 2010, and a request for a protective order; if these records cannot be located at the Health

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HIPAA's privacy provisions allow for disclosure of medical information in the course of
administrative or judicial proceedings; however, the Act places certain requirements on both the
medical professional providing the information and the party seeking it. See 45 C.F.R. §
164.512(e) (2004). Under HIPAA, disclosure is permitted, inter alia, pursuant to a court order,
subpoena, or discovery request when the healthcare provider “receives satisfactory assurance
from the party seeking the information that reasonable efforts have been made by such party to
secure a qualified protective order....” 45 C.F.R. § 164.512(1)(e)(ii)(b). The protective order must
prohibit “using or disclosing the protected health information for any purpose other than the
litigation ...” and “[r]equire [ ] the return to the [physician] or destruction of the protected health
information ... at the end of the litigation or proceeding.” 45 C.F.R. § 164.512(1)(e)(v).
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Records Center, defendants shall inform the court within that time with a declaration by the

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person who conducted the search.

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Dated: June 4, 2014

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