Hayes v. Nettles et al

Filing 100

MEMORANDUM DECISION AND ORDER - Hayess Motion to Compel (Dkt. 82 ) is DENIED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL T. HAYES,

Case No. 1:16-cv-00534-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
RACHEL NETTLES; MICHAEL
MONTGOMERY; CHARLES
JOHANNESSEN; and FELIX DIAZ,
Defendants.

I. INTRODUCTION
Pending before the Court is Plaintiff Michael T. Hayes’s Motion to Compel. Dkt.
82. Having reviewed the record and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the interest of avoiding further delay,
and because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B). Upon review, and for the reasons set forth below, the Court DENIES
the Motion.
II. DISCUSSION
A. Background
In 2016, Hayes filed a Complaint alleging that a variety of his constitutional rights
had been violated. Dkt. 1. Over the course of this case, the Court has determined that Hayes

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could proceed only on his Eight Amendment excessive force and a single Fourteenth
Amendment Due Process claim. Dkts. 11, 70.1
On April 10, 2019, Hayes filed a Motion to Open Discovery for the Fourteenth
Amendment Due Process Claim (Dkt. 71), which the Court granted. Dkt. 78. Hayes also
filed a “Motion for Subpoenas” (Dkt. 73), which the Court construed as a Motion to
Compel. Dkt. 78, at 3. In his Motion to Compel, Hayes requested that the Idaho Department
of Corrections (“IDOC”) produce various pieces of evidence: (1) a video from the alleged
battery; (2) an infraction report from the shower incident; (3) a list of officers in the control
tower from certain specified days; and (4) any medical records concerning Hayes. Hayes
also requested that Corizon produce any medical records pertaining to Hayes and the
alleged battery, including urinary analysis tests. In the absence of a response from
Defendants, the Court granted Hayes’s Motion “to the extent that any of the information
and material he [sought was] relevant and discoverable under the Federal Rules of Civil
Procedure.” Id.
On December 31, 2019, Hayes filed the pending Motion to Compel, arguing that
Defendants—who are not the IDOC but employees thereof—have violated the Court’s
prior Order. Dkt. 82. Defendants counter that they have not violated the Court’s Order
because the evidence Hayes seeks has been disclosed, does not exist, or is not discoverable
as it is not in their “possession, custody, or control.” Dkt. 84. Because the time for briefs
to be filed on the matter has passed, the Motion to Compel is ripe.

  The Court incorporates the aforementioned Orders, and the factual background set forth therein, by
reference and will not repeat the specific facts of Hayes’ claims here. 

1

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B. Analysis
Discovery is permitted “regarding any nonprivileged matter that is relevant to any
party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevant information “need not be
admissible in evidence to be discoverable.” Id. A party may move for an order compelling
a discovery response pursuant to Federal Rule of Civil Procedure 37(a)(3)(B). However, a
party must produce only evidence that is within its “possession, custody, or control.” See
Fed. R. Civ. P. 34(a)(1); United States v. Int’l Union of Petrol. & Indus. Workers, AFLCIO, 870 F.2d 1450, 1452 (9th Cir. 1989). “The party seeking production of the documents
. . . bears the burden of proving that the opposing party has” possession, custody, or control
over the evidence requested. Int’l Union of Petrol., 870 F.2d at 1452.
Hayes contends that Defendants have not produced the urinary analysis records or
a November 8, 2015 infraction report and seeks an order of contempt, default judgment,
and sanctions. As to the urinary analysis records, Defendants counter that they do not have
possession, custody, or control over any of Hayes’s medical records, and they are therefore
not required to disclose any of them, particularly his urinary analysis records. Defendants
point out that those records are held by Corizon and IDOC—a fact Hayes also argues in
his Motion. See Dkt. 82, at 2–3 (“The [IDOC] and Corizon have a medical records contract
for Corizon to file and keep all medical records for [IDOC] inmates.”).
In the Ninth Circuit, documents are not discoverable under Rule 34 if the party that
holds them “could legally—and without breaching any contract—continue to refuse to turn
over such documents.” In re Citric Acid Litig., 191 F.3d 1090, 1107–08 (9th Cir. 1999);
see also Dugan v. Lloyds TSB Bank, PLC, Case No. 12-cv-02549, 2013 WL 4758055, at
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*2 (N.D. Cal. Sep. 4, 2013) (“In the Ninth Circuit, control is defined as the legal right to
obtain documents upon demand.” (cleaned up)). “Like the majority of circuits, the Ninth
Circuit has explicitly rejected an invitation to define control in a manner that focuses on
the party’s practical ability to obtain the requested documents.” Matthew Enter., Inc. v.
Chrysler Grp. LLC, No. 13-CV-04236-BLF, 2015 WL 8482256, at *3 (N.D. Cal. Dec. 10,
2015) (cleaned up) (citing In re Citric Acid, 191 F.3d at 1107).
Nothing before the Court suggests that either Corizon or IDOC is contractually or
legally required to disclose Hayes’s medical records to Defendants—nor does Hayes so
argue.2 Thus, Hayes seeks the evidence from the wrong source. Because Defendants do not
have possession, custody, or control over the urine analysis records, they have not violated
the Court’s prior Order. What’s more, the Court commends Defendants for their facilitation
of IDOC’s in-house counsel’s disclosure of the Hayes’s medical records to him, which they
were under no legal obligation to do but nonetheless did in the interest of judicial economy.
See Dkt. 84, at 7.
As to the infraction report, Defendants assert that it does not exist and that they
informed Hayes of this in a January 2017 letter to his public defender produced as part of
their initial disclosures. Dkts. 84, at 6; 84-4; 84-5. Having reviewed the filings and record,
the Court has confirmed the same.3 Defendants cannot be forced to produce something that
does not exist.

In fact, Defendants point out that it is quite possible that the disclosure of Hayes’s medical records to
Defendants would be a violation of the privacy rules found in the Health Insurance Portability and
Accountability Act of 1996, better known as HIPAA.
3
Hayes also requests that his requests for admission be deemed admitted pursuant to Rule 36 due to
Defendants’ untimely and incomplete responses. Dkt. 82, at 8–11. However, the Court’s previous Order
2

MEMORANDUM DECISION AND ORDER - 4

Accordingly, Hayes’s arguments that Defendants violated the Court’s Order are
without merit, and the Court therefore DENIES his Motion.
III. ORDER
The Court HEREBY ORDERS:
1. Hayes’s Motion to Compel (Dkt. 82) is DENIED.

DATED: October 5, 2020

_________________________
David C. Nye
Chief U.S. District Court Judge

(Dkt. 83) granting Defendants’ Motion to Amend Admissions (Dkt. 80) addresses this issue and remains in
force.  

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