Berry v. Swingle et al

Filing 62

ORDER signed by Magistrate Judge Kendall J. Newman on 1/09/13 ordering plaintiff's motions 39 , 42 are denied. Plaintiff's motion to compel discovery 43 is denied. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SPENCER E. BERRY,

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Plaintiff,

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No. 2:12-cv-0363 KJN P

vs.
DOROTHY SWINGLE, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel. The parties consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Multiple motions are

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pending, which this court will address seriatim.

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Motions for Sanctions

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On October 1, 2012, plaintiff filed a motion requesting sanctions against

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defendants’ counsel. Plaintiff contends that defense counsel inappropriately contacted plaintiff

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by telephone. Plaintiff is advised that because he is pursuing litigation against defendants, it is

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not inappropriate for defense counsel to contact plaintiff. Plaintiff’s motion for sanctions is

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without merit, and is denied.

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On October 25, 2012, plaintiff renewed his motion for sanctions, and asked for a
ruling. Plaintiffs second motion is denied as set forth above.
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Motion to Compel Discovery

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On October 25, 2012, plaintiff filed a motion to compel discovery. Defendants

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filed an opposition; plaintiff did not file a reply. Plaintiff seeks to compel further production of

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documents from defendants. Plaintiff claims that defendants provided medical records unrelated

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to those requested by plaintiff, in addition to providing 85 blank and illegible pages, and copies

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of other inmates’ medical records. Plaintiff also maintains that additional production is required

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because:

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plaintiff alleges, for instance, the defendants subjected him to
harmful radiation via x-rays. Therefore his requests for radiology
reports/x-ray results is needed as proof defendants had plaintiff xrayed. Also plaintiff alleges medical malpractice related to the
testing, therefore, any and all medical records related to TB in the
plaintiff’s records is relevant.

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(Dkt. No. 43 at 96.)
Defendants contend that plaintiff does not claim that defendants failed to produce

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all medical records from High Desert State Prison (“HDSP”); rather, plaintiff seeks medical

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records from plaintiff’s incarceration prior to plaintiff’s incarceration at HDSP. However,

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defendants argue, the court found that plaintiff is not likely to succeed on the merits of his claim

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that he was exempt from tuberculosis testing because medical evidence conclusively established

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that plaintiff never contracted tuberculosis. (Dkt. No. 36; 53.) Thus, defendants argue,

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additional medical records prior to plaintiff’s incarceration at HDSP are irrelevant to plaintiff’s

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instant claim. Defendants further contend that they did not produce irrelevant medical records

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from HDSP to harass, delay, or prejudice plaintiff, and that some of the records produced

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demonstrate that plaintiff did not falsely test negative for tuberculosis antibodies at HDSP due to

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HIV, AIDS, chronic illness, or extremely poor health.

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Plaintiff’s amended complaint does not contain allegations that defendants

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subjected him to harmful radiation by x-rays. (Dkt. No. 28, passim.) Moreover, plaintiff alleges

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he was erroneously subjected to tuberculosis tested based on his belief that he contracted
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tuberculosis in 1994, as allegedly diagnosed at the California Youth Authority. However, as set

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forth in this court’s August 29, 2012 findings and recommendations, defendants adduced medical

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evidence demonstrating that plaintiff was administered two QuantiFERON Gold (“QFT-G”)

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blood tests, and that both the January 27, 2011, and April 18, 2011 results established that

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plaintiff did not have tuberculosis, either active or latent. (Dkt. No. 36 at 6.) Dr. Swingle, the

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Chief Medical Officer at HDSP, reviewed plaintiff’s medical records and “conclusively

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determined that [plaintiff] does not have tuberculosis.” (Id.) Dr. Swingle stated that if plaintiff

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had contracted active or latent tuberculosis at any time, including but not limited to 1994,

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plaintiff would still have the antibodies in his system today, which would cause plaintiff to test

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positive. (Id.) Thus, Dr. Swingle opined that plaintiff “has never been accurately diagnosed with

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tuberculosis.” (Id.)

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Because the allegations in plaintiff’s amended complaint do not include a claim

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that plaintiff was subjected to harmful radiation by x-rays, plaintiff is not entitled to additional

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medical records to support that claim. Moreover, because plaintiff’s allegations are limited to his

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treatment at HDSP, medical records prior to his incarceration at HDSP are not relevant.

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Plaintiff’s records from the California Youth Authority are not contained in plaintiff’s records

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with the California Department of Corrections and Rehabilitation (“CDCR”); thus, defendants

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cannot produce documents not within their custody or control. Moreover, in light of the medical

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evidence provided by Dr. Swingle confirming that plaintiff has not had tuberculosis and has not

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been accurately diagnosed as having tuberculosis in the past, any test results from 1994

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administered while plaintiff was held in the California Youth Authority are not relevant.

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Similarly, any tuberculosis test results during plaintiff’s incarceration at CDCR prior to his

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incarceration at HDSP are not relevant.

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The production of blank pages or documents from other inmates’ records was

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inadvertent and does not support a request for further production. Although plaintiff claims

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certain pages were illegible (see dkt. no. 43 at 15, 19-20, 32, 54-58, 61-74, 78-80), no further
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production of these pages are required because Dr. Swingle reviewed plaintiff’s medical records

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and confirmed the tuberculosis test results, as set forth in his declaration. (Dkt. No. 31-1.)

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Moreover, as noted by defendants, plaintiff has access to his own medical records.

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For all of the above reasons, plaintiff’s motion to compel discovery is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s October 1, 2012 motion (dkt. no. 39) is denied;

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2. Plaintiff’s October 25, 2012 motion (dkt. no. 42) is denied; and

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3. Plaintiff’s October 25, 2012 motion to compel discovery (dkt. no. 43) is

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denied.
DATED: January 9, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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berr0363.mtc

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