Echon et al v. Sackett et al
Filing
73
ORDER by Magistrate Judge Nina Y. Wang on 5/2/16. Plaintiffs' Third Motion to Compel Discovery 64 is GRANTED IN PART and DENIED IN PART; The Motion is GRANTED as to the Interrogatory Responses and Defendants are COMPELLED to respond to the ou tstanding interrogatories fully, in narrative form, no later than May 16, 2016 and Defendants MUST PAY the portion (but in any case, no more than fifty percent (50%)) of the reasonable expenses associated with this instant Motion to Compel attri butable to the deficient interrogatory responses, to be determined by a forthcoming motion for reasonable expenses to be filed by Plaintiffs no later than May 16, 2016; The Motion is DENIED as to the Requests for Production. (Attachments: # 1 Exhibit Gonzales v City of Albuquerque Case Law, # 2 Exhibit Smith v Pizza Hut Inc Case Law, # 3 Exhibit Bouchard v Whetstone Case Law, # 4 Exhibit Miller v Kastelic)(bsimm, )
Miller v. Kastelic, Not Reported in F.Supp.2d (2013)
2013 WL 4431102
2013 WL 4431102
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Larry C. MILLER, Plaintiff,
v.
Captain KASTELIC, Daniel Reimer,
and Lt. Ridgwell, Defendants.
Civil Action No. 12–cv–02677–CMA–MEH.
|
Aug. 16, 2013.
Attorneys and Law Firms
Larry C. Miller, Canon City, CO, pro se.
Bree Ashley Gorynski, Edmund Martin Kennedy, Hall &
Evans, LLC, Denver, CO, for Defendants.
ORDER
MICHAEL E. HEGARTY, United States Magistrate Judge.
*1 Before the Court is Defendant Kastelic's and Ridgwell's
Motion to Compel Plaintiff's Responses to their First Set
of Discovery Pursuant to Fed.R.Civ.P. 37(a) [filed July 23,
2013; docket # 91 ]. The Motion is referred to this Court for
disposition. (Docket # 93.) With the Motion fully briefed 1 ,
the Court determines that oral argument would not materially
facilitate its adjudication of the matter. For the reasons set
forth below, the Motion is denied as stated herein.
I. Background
Plaintiff, proceeding pro se, initiated this action on October
9, 2012. (Docket # 1.) His claims arise from alleged threats
and an assault by a fellow inmate at Crowley County
Correctional Facility (“CCCF”). Plaintiff names the inmate
(Daniel Reimer) as a Defendant in this action, as well
as various prison officials who allegedly failed either to
protect Plaintiff from the assault or to entertain Plaintiff's
assertion of self defense during the disciplinary proceedings
that followed. In total, Plaintiff's Complaint contains twelve
causes of action against eight Defendants. (Id.) Upon
review of the Complaint, Judge Babcock dismissed Plaintiff's
eighth, ninth, and tenth claims, and dismissed Defendants
Tom Clements, Corrections Corporation of America, and
Warden Miller. (Docket # 17.) Plaintiff voluntarily dismissed
Investigator Brownstein on April 8, 2012. (Dockets48, 51.)
With the dismissal of Investigator Brownstein, Plaintiff's
twelfth claim became moot. (See docket # 1.) Thus,
Plaintiff proceeds on claims one, two, three, four, five,
six, seven, and eleven against Defendants Kastelic, Reimer,
and Ridgwell. As relief, Plaintiff's Complaint requests, inter
alia, $1,000,000 in damages against Defendant Kastelic for
allegedly “exacerbating [Plaintiff's] mental health issues (of
record).” (Id. at 21.) With regard to Defendant Ridgwell,
Plaintiff requests $550,000 in punitive damages, plus various
forms of injunctive relief. (Id. at 22.)
Defendants Kastelic and Ridgwell (hereinafter “the CCCF
Defendants”) served their First Set of Discovery to
Plaintiff on May 21, 2013. (Docket # 91–1.) In addition
to several interrogatories and requests for production of
documents, the CCCF Defendants provided Plaintiff with
various releases to sign and return. (Id.) Through the
executed releases, the CCCF Defendants sought to acquire
several categories of records from the Colorado Department
of Corrections (“CDOC”), including criminal justice
records, case management files, diagnostic assessments,
security classifications, disciplinary proceedings, grievances,
comprehensive medical and mental health records, and
pharmacy records. (Id.) Pursuant to Fed.R.Civ.P. 33(b)(2) and
34(b)(2)(A), Plaintiff's responses were due on or before June
24, 2013.
In a letter dated July 2, 2013, the CCCF Defendants informed
Plaintiff they had not received his discovery responses.
(Docket # 91–2.) The CCCF Defendants expressed particular
concern regarding Plaintiff's failure to execute and return the
attached releases. (Id.) Plaintiff responded to the letter on
July 10, 2013, indicating that mail had been delayed due to
the CCCF Defendants' counsel's failure to comply with the
prison facility's mail protocols. (Docket # 91–3.) The CCCF
Defendants re-mailed their discovery requests to Plaintiff
on July 16, 2013, and asked Plaintiff submit his responses
immediately. (Docket # 91–4.)
*2 Approximately one week after their last letter, the
CCCF Defendants filed the pending Motion to Compel.
(Docket # 91.) Though the Motion is not entirely clear
as to what discovery remains outstanding, it appears the
CCCF Defendants seek to compel interrogatory responses,
document production, and execution of the releases attached
to the discovery requests. Plaintiff's response represents that
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Miller v. Kastelic, Not Reported in F.Supp.2d (2013)
2013 WL 4431102
he mailed copies of his discovery responses to the CCCF
Defendants on June 17, 2013, and again on July 25, 2013.
(Docket # 100.) Plaintiff also attached the medical releases,
which he executed as modified. (Id.)
The CCCF Defendants' reply in support of their Motion
does not comment on the adequacy of Plaintiff's alleged
discovery responses except with regard to the signed releases.
On that point, the CCCF Defendants object that Plaintiff's
modifications prevent the CCCF Defendants from accessing
Plaintiff's psychological records. This concerns the CCCF
Defendants because Plaintiff has alleged that the CCCF
Defendants' conduct exacerbated his mental health issues.
Thus, the CCCF Defendants request the Court order Plaintiff
to execute unmodified releases, or alternatively, prohibit
Plaintiff from seeking damages for any psychological harm
he attributes to the CCCF Defendants as a result of the acts
described in his Complaint.
II. Discussion
Rule 26 permits discovery that is “reasonably calculated to
lead to the discovery of admissible evidence.” Fed.R.Civ.P.
26(b)(1) (2009). In addition, medical records fall within
the scope of confidential documents under Fed.R.Civ.P.
26(c), which can be addressed through the entry of an
appropriate protective order. Notably, neither party has
requested such an order in this action. Given the CCCF
Defendants' apparent concession that Plaintiff has adequately
responded to all conventional discovery requests, the Court
directs its attention to the releases.
A review of cases addressing whether a court may order
production of executed medical releases reveals a split of
authority. The first view primarily looks to the plain language
of Rule 34 to conclude that records not in the party's
possession may not be compelled and that Rule 34 does not
permit the Court to order the party's signature on a medical
release form. See, e.g., Neal v. Boulder, 142 F.R.D. 325, 327
(D.Colo.1992); see also Clark v. Vega Wholesale, Inc., 181
F.R.D. 470, 472 (D.Nev.1998). The second view generally
permits an order compelling a signature on a release form
when the party has placed his or her medical condition at
issue in the case. See Williams v. NPC Int'l, Inc., 224 F.R.D.
612, 613 (N.D.Miss.2004); see also Adams v. Ardcor, 196
F.R.D. 339, 344 (E.D.Wis.2000). However, even courts that
compel authorizations from the plaintiff typically require the
defendant first to seek the documents directly from the third
party who has custody of the documents. EEOC v. Thorman
& Wright Corp., 243 F .R.D. 426, 429 (D.Kan.2007) (“It
is only after the individuals or entities object on grounds of
privilege or otherwise fail to produce the documents pursuant
to subpoena that the Court will consider a motion requesting
(1) the Court compel the entity to produce the documents
pursuant to Rule 45; or (2) compel the party to execute
appropriate releases pursuant to the Court's general powers
to enforce its own orders”); see also Johnson v. Kraft Foods
North Am., Inc., 236 F.R.D. 535, 540 (D.Kan.2006) (same).
*3 This Court has previously determined that authorization
for the release of medical records should not be routinely
compelled, even when it may be the most efficient manner
for such discovery. See Cutting v. United States, No. 07–
cv–02053–REB–MEH, 2008 WL 1775278, *2 (D.Colo. Apr.
14, 2008) (unpublished). In Cutting, the Court ordered the
plaintiffs to provide executed authorizations for medical
records, but only after determining that such method would
be more efficient since the matter involved more than 90
medical providers. Id. Conversely, where defendants sought
production of medical records from only one provider, the
Court has followed the reasoning of Neal, Thorman, and
Johnson and required the defendant first to seek a plaintiff's
medical records pursuant to Rule 45. Morris v. City of Colo.
Springs, 09–cv–01506–PAB–MEH, 2009 WL 4927618, at *2
(D.Colo. Dec. 18, 2009). In Morris, Court indicated it would
entertain a motion to compel the relevant medical releases
only upon failure of the subpoena. Id.
In this case, like Morris, the CCCF Defendants seek
production of Plaintiff's records from a single entity: CDOC.
(Docket # 91–1 at 9–12.) The CCCF Defendants do not
indicate whether they have attempted to procure such records
from CDOC directly, nor have they identified any other
special circumstances necessitating production by this means.
In accordance with the Court's previous rulings on the issue,
the Court declines compel execution of unmodified medical
releases unless and until the CCCF Defendants demonstrate
that they are unable to obtain the documents they seek with
a Rule 45 subpoena.
III. Conclusion
To the extent Defendant Kastelic's and Ridgwell's Motion to
Compel Plaintiff's Responses to their First Set of Discovery
Pursuant to Fed.R.Civ.P. 37(a) [filed July 23, 2013; docket
# 91 ] seeks to compel execution of unmodified medical
releases, it is denied at this stage in the litigation.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Miller v. Kastelic, Not Reported in F.Supp.2d (2013)
2013 WL 4431102
All Citations
Not Reported in F.Supp.2d, 2013 WL 4431102
Footnotes
1
Pursuant to the Court's July 25, 2013 order setting a briefing schedule, Plaintiff filed a “Response to Court Regarding
Defendant's Motion to Compel Discovery” on August 1, 2013. (Docket # 100.) The Clerk of the Court originally filed the
document under seal at Restriction Level 2; however, upon instruction from this Court, the Clerk of the Court reduced
the Restriction to a Level 1. Because all parties can now access the filing, the Court construes it as Plaintiff's response
to the pending Motion.
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
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