Parkell v. Danberg et al

Filing 213

MEMORANDUM ORDER granting in part and denying in part 163 MOTION to Compel, denying 173 MOTION to Compel, granting in part and denying in part 181 MOTION to Compel, denying 186 MOTION for Summary Judgment, denying 189 MOTION for Summary Judgment, denying 192 MOTION for Summary Judgment. ORDER, Setting Scheduling Order Deadlines ( Dispositive Motions due by 9/30/2013., Answering Brief due 10/31/2013., Reply Brief due 11/15/2013.). Signed by Judge Sue L. Robinson on 6/26/13. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD D. PARKELL,

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Plaintiff,

v.
COMMISSIONER CARL DANBERG,
et al.,
Defendants.

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)
)
) Civ. No. 10-412-SLR
)
)
)
)
)

MEMORANDUM ORDER

At Wilmington thisJl'day of June, 2013, having considered plaintiff's pending
motions to compel (D.I. 163, 173, 181);
IT IS ORDERED that: (1) the motion to compel (D.I. 163) is granted in part and
denied in part; (2) the motion to compel (D. I. 173) is denied; and (3) the motion to
compel (D.I. 181) is granted in part and denied in part; (4) all pending motions for
summary judgment (D. I. 186, 189, 192) are denied without prejudice to renew; and (5)
a new summary judgment motion deadline is entered, for the reasons that follow:
1. Background. Plaintiff Donald D. Parkell ("plaintiff') is currently incarcerated
at the Howard R. Young Correctional Institution in Wilmington, Delaware. He filed this
lawsuit, pursuant to 42 U.S.C. § 1983, alleging that constitutional violations occurred
when he was incarcerated at the James T. Vaughn Correctional Center ("VCC"),
Smyrna, Delaware. Plaintiff also raises supplemental state claims. He proceeds pro se
and has been granted leave to proceed without prepayment of fees.
2. Discovery. Plaintiff challenges the policies and practices pertaining to the
DOC (i.e., Delaware Department of Correction) and medical procedures. (See D. I. 2,

66) He has filed three motions to compel. Federal Rule of Civil Procedure 37 provides
that "[o]n notice to other parties and all affected persons, a party may move for an order
compelling ... discovery." Fed. R. Civ. P. 37(a)(1). Pursuant to Fed. R. Civ. P.
26(b)(1), "[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense. . . . Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." /d.
3. Motion to compel (D.I. 163). The first motion to compel seeks responses to
a request for production of documents (D. I. 134) served upon defendants on May 8,
2012. The motion is granted in part and denied in part. The request seeks numerous
policies from defendants. (/d. at Request Nos. 2, 3, 4, 7, 8, 12, 13, 15, 16) State
defendants objected to producing the policies as privileged information pursuant to 11
Del. C.§ 4322 and 29 Del. C.§ 10002. Medical defendant Corizon, Inc. f/kfa
Correctional Medical Services, Inc. ("CMS"), did not provide the materials because they
are not in its possession, custody, or control, but directed plaintiff to the DOC website
where the policy manuals related to health care are maintained. (See D. I. 168) CMS
takes no position on the motion to compel to the extent that it seeks production of DOC
records and opposes relief to the extent it seeks anything other than DOC records and
policies.
4. State defendants agree that DOC policies are available on the internet and
indicate that, to the extent plaintiff does not have access to the internet due to his
incarceration, they will produce any relevant DOC policies. (See D. I. 170) The specific
SHU (i.e., security housing unit) and C-Building isolation policies that plaintiff seeks are

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addressed by the policies of the specific institution - here

vee. vee policies that

provide for the safe operation of the facility are not made public for security reasons
and, hence, were not produced to plaintiff. State defendants contend that releasing
SHU and isolation policies would pose a higher security concern, as SHU manages the
most dangerous inmates housed at VCC, and isolation is used as a means to separate
inmates from the general population as a result of violations of rules or regulations that
constitute a threat to the security of the facility or safety of inmates or staff. Therefore,
State defendants ask the court to deny plaintiff's motion to compel production of VCC
policies due to security concerns. The court notes that on February 12, 2013, State
defendants provided plaintiff certain policies he requested. (See 0.1. 176, 184, 194,
195)
5. The motion to compel (0.1. 163) is denied except that, within thirty (30) days
from the date of this order, State defendants shall produce the relevant DOC policies
that are available on the internet to the extent that they have not been produced and to
the extent that plaintiff does not have access to the internet due to his incarceration, as
well as the redacted portions of all relevant

vee policies. 1

6. Motion to compel (D.I. 173). The second motion to compel seeks to compel
the production of documents in response to discovery (D. I. 164, 165) served upon
defendant Correct Care Solutions (CCS) on October 10, 2012. The motion is denied.
Plaintiff challenges CCS' responses to Request Nos. 1, 2, 3, 4, 7, 13, and 18 in the first

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1f an unredacted portion of any VCC policy is submitted to the court as part of
the summary judgment record, a copy of such shall be provided to plaintiff upon his
executing a confidentiality agreement.

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I

I

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request for production of documents (D. I. 164) and its responses to Request Nos. 1 and
2 in the second request for production of documents (D. I. 165).
7. In responses Nos. 1, 2, 3, and 4 to the first request for production of
documents (D.I. 171) and responses Nos. 1, and 2 to the second request for production
of documents (D. I. 172), CCS objected, but answered and stated either that the
documents were not in its possession, custody, or control, or directed plaintiff to obtain
the documents from State defendants as the documents were likely in their possession,
custody or control. In its response to Request No. 13, CCS objected, but adequately
answered the request. Finally, in response to Request No. 18, CCS notes that the
documents were previously produced by State defendants and CCS and saw no need
to produce a third set of records. The court finds adequate CCS' responses.
8. Request No. 7 seeks "any and all policies, directives or instructions to staff
concerning cost cutting or financial savings in and throughout the medical department."
CCS objected on the grounds that the request is vague, overly broad and not
reasonably likely to lead to admissible evidence, and is irrelevant to the claims asserted
in this case. The objections are sustained as the request is overly broad.
9. Motion to compel (D.I. 181). The third motion to compel seeks to compel the
production of documents in response to discovery (D. I. 176) served upon defendants on
November 29, 2012. The motion appears to be directed only to medical defendants
CMS, Betty Bryant ("Bryant"), and Christina Damron ("Damron") ("medical defendants").
The motion is granted in part and denied in part.
10. Plaintiff challenges medical defendants' responses to Request Nos. 1, 2, 6,
7, 8, 9, 13, 14, 15, and 17. Medical defendants objected, but answered Request Nos. 1,

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2, 6, 7, and 17. The court sustains the objections and finds adequate medical
defendants' responses to Request Nos. 1, 2, 6, 7, and 17. The court sustains the
objections to Request Nos. 9, 13, 14, 15. The court overrules the objection to Request
No. 8. Medical defendants shall provide the name of the mental health worker who
placed the emergency phone call demanding medical treatment for plaintiff when he
was housed in C-building isolation to the extent that medical defendants have personal
knowledge of the mental health worker or they can discern, from medical records, the
name of the mental health worker.
11. Motions for Summary Judgment. Defendants' motions for summary
judgment (D. I. 186, 189, 192) are denied without prejudice to the filing of new summary
judgment motions after the completion of discovery. The summary judgment motion
deadline is extended to all parties as follows: All summary judgment motions with
opening briefs and affidavits, if any, in support of the motions, shall be served and filed
on or before September 30, 2013. Answering briefs and affidavits, if any, shall be filed
on or before, October 31, 2013. Reply briefs shall be filed on or before November 15,

2013.

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