Johnson v. Saddler et al
Filing
94
OPINION entered by Judge Sue E. Myerscough on 1/7/2013. The Plaintiff's motion to compel against the DHS Defendants is granted in part and denied in part, d/e 76 . The Plaintiff's motion to compel against the Nurse Defendants is denied, d/e 87 . The Plaintiff's motion to conduct discovery on Defendant Kerr's kick-boxing activities is denied, d/e 92 . Dispositive motions are due 2/1/2013. The Final PreTrial Conference is rescheduled to 7/9/2013 at 1:30 p.m. Defense counsel shall appear in person. The Plaintiff shall appear by video conference. The jury selection and trial are vacated, to be rescheduled at the Final PreTrial Conference. Entered by Judge Sue E. Myerscough on 1/7/2013. (MAS, ilcd)
E-FILED
Monday, 07 January, 2013 04:00:12 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TERRY C. JOHNSON,
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Plaintiff,
v.
MICHELLE SADDLER, et al.,
Defendants.
10-CV-3279
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, detained in the Rushville Treatment and Detention
Center, pursues claims for excessive force, failure to intervene, deliberate
indifference to his serious medical needs, and inhumane conditions of
confinement. Discovery closed on September 14, 2012, with the
exception of the information sought in Plaintiff’s motions to compel,
which are now before the Court.
I.
Plaintiff’s Motion to Compel the Production of Documents from
DHS Employees (d/e 76)
A. Request 1: Documents listed in DHS Defendants’ Initial
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Disclosures
The initial disclosures by the DHS Defendants1 listed Plaintiff’s
behavior committee documents, medical records, and other reports
describing the incidents. Defendants have refused to produce these
documents, citing the Mental Health and Developmental Disabilities
Confidentiality Act, 740 ILCS 110/10(a)(the “Act”), which allows a
therapist, on behalf of a recipient of mental health services, to refuse to
disclose treatment records.
Defendants do not explain how the behavior committee documents,
medical records discussing Plaintiff’s physical conditions, incident
reports, or investigative reports are covered by the Act. The Act covers
only communications or records relating to the provision of mental
health services to Plaintiff. See 740 ILCS 110/2 (definitions of
“communication” and “record”). Reports detailing the extraction of
Plaintiff from his cell is not connected to the provision of mental health
The “DHS Defendants” are the defendants employed by the Department of
Human Services, not the defendants employed by an independent contractor working
at the Rushville Treatment and Detention Center.
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services to Plaintiff.
Further, to the extent the withheld documents are covered under
the Act, Plaintiff has indicated that he consents to disclosure. If
Defendants believe a signed consent is necessary, Defendants can provide
a consent form for Plaintiff to sign pursuant to 740 ILCS 110/5.
Defendants seem to argue that DHS has a right to assert the
privilege against disclosure, regardless of whether Plaintiff consents to
disclosure. But the Act specifically states that a therapist can only assert
the privilege on behalf of the recipient. The privilege belongs to the
recipient, not the therapist. 740 ILCS 110/10 (“[A] recipient, and a
therapist on behalf and in the interest of a recipient, has the privilege to
refuse to disclose and to prevent the disclosure of the recipient’s record or
communications.”). In short, the DHS Defendants have not adequately
explained why the Act precludes them from disclosing this information.
The DHS Defendants also assert that DHS will not produce the
incident reports except to an attorney appointed for Plaintiff, and then
only if a protective order is entered prohibiting disclosure of the reports
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to Plaintiff. The DHS Defendants do not offer any reason for these
requirements. If security or other concerns counsel against disclosure,
Defendants may file a motion for an in camera inspection, detailing the
concerns and submitting the documents under seal.
B. Requests 3-5: Regulations and Directives
Plaintiff seeks regulations and directives regarding “personnel
standards, use of force, reporting use of force, monitoring use of force,
employee conduct, discipline, organization of the department, dangerous
disturbances, physical injuries to staff and/or residents, and job post
descriptions.” He also seeks all directives “pertinent” to this action.
The court agrees with Defendants that this request is overly broad.
Defendants have provided job descriptions and directives and regulations
regarding special management status and security. The Court will narrow
Plaintiff’s requests to regulations, directives, or written policies governing
the use of tactical teams, the extraction of residents from their rooms, the
use of force against residents, and the reporting/investigation of the use of
force against residents.
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C. Request 7: Prior Judgments and Orders
Plaintiff seeks “all applicable injunctions, consent decrees/orders,
judgments entered in/against the Departments, its employees, the
Defendants, their superiors, subordinates, and/or successors which were
effective at TDF from January 1, 2008 that are pertinent to the
information sought in Plaintiff’s request number three.
The Court agrees with Defendants that this request is overly broad
and seeks irrelevant information. The issue in this case is whether
Defendants acted in the manner alleged by Plaintiff, an issue which
cannot be established by examining prior litigation against the facility or
its employees.
D. Request 8: Personnel Records of the DHS Defendants
Defendants argue that producing their personnel records is an
unwarranted invasion of their privacy under the Illinois Personnel Review
Act. However, the Personnel Review Act governs an employee’s right to
view his or her own personnel records, not access by a litigant. The
section to which Defendants refer is inapplicable—that section states that
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an employee cannot view information in his own records if the
information is about another person and would be an invasion of that
other person’s privacy. 820 ILCS 40/10(d). In any event, Section 40/7
specifically allows the disclosure of disciplinary action pursuant to a
Court order. 830 ILCS 40/7(3)(b).
Defendants also argue that the information is irrelevant. However,
discipline, reprimands or discussions in the personnel records about how
Defendants handled the alleged incidents is relevant to Plaintiff’s claims.
Violations of departmental standards could be relevant to showing intent,
motive, or could go to credibility. If security or other legitimate reasons
preclude the production of these records, Defendants may file a motion
for an in camera inspection and file the documents under seal.
E. Request 10: All Documents between Defendants and other
DHS Employees
Plaintiff seeks “all reports, emails, memoranda, or documentation
generated by this action between defendants and other employees of the
DHS, other than the direct work product of defendants’ counsel in this
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action, which are pertinent to this action or Plaintiff.”
The Court agrees with Defendants that this request is overly broad.
Additionally, communications prepared because of Plaintiff’s claims
would necessarily be protected by the work-product doctrine. See Sandra
T.E. v. South Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir.
2010).
F. Request 11: Witnesses
Plaintiff seeks “all statements or parties to this action, witnesses,
experts, . . . , pertinent to the issue in this action which may be used to
negate the claims or plaintiff or support the affirmative defenses . . . .”
Defendants have already identified potential witnesses and confirm
their commitment to disclose additional witnesses as that information
becomes available. The Court concludes that Defendants have complied
with this request.
G. Request 14: Job Descriptions
The DHS Defendants have already provided their job descriptions,
mooting this request.
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H. Request 17: Evidence Defendants intend to introduce at trial
Defendants have already identified relevant documents in their
initial disclosures and will supplement their disclosures as necessary.
Defendants have also arranged for Plaintiff to watch the video recording
of the incident and have indicated their willingness to cooperate with
Plaintiff if he needs to view the video again. Plaintiff asserts that he
needs the “still pictures,” but Defendants represent that they have no
pictures.
I. Requests 18-29: Communications between Defendants and
others
Plaintiff seeks “written communications between Defendants, their
agents, witnesses, and the Plaintiff.” Plaintiff also seeks all
communications “by and of any of any parties hereto relative to the facts
alleged in the complaint.” Further, he seeks “any and all statements,
written or oral, made by Defendants to any third party.”
The Court agrees with Defendants that these requests are overly
broad and unduly burdensome.
J. Request 22: Logs
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Defendants have agree to provide the wing logs to Plaintiff,
mooting this request.
II. Plaintiff’s Motion to Compel against the Nurse Defendants (d/e 87)
Plaintiff moves to compel adequate responses to certain
interrogatories and document requests sent to the Nurse Defendants
(Defendants Brown, O’Donnell, Osmer, and Rhoades).
The Court agrees with the Nurse Defendants that Plaintiff’s motion
to compel is untimely. The Court’s 1/9/12 order advised that “except for
good cause shown, motions to compel must be filed within 14 days of
receiving an unsatisfactory response to a timely discovery request.” The
Nurse Defendants sent their responses to Plaintiff on September 6, 2012.
Plaintiff wrote to Defendants in an effort to resolve their objections, and
Defendants informed Plaintiff on October 1, 2012 that Defendants stand
by their responses. Yet Plaintiff waited over a month, until November 6,
2012 to file his motion to compel. He has not explained the reason for
his delay.
IT IS THEREFORE ORDERED:
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1) Plaintiff’s motion to compel against the DHS Defendants is
granted in part and denied in part (d/e 76).
2) By January 31, 2013, the DHS Defendants are directed to
provide Plaintiff the following documents:
a) Documents identified in Plaintiff’s Request Number 1;
b) Regulations, directives, or written policies governing the
use of tactical teams, the extraction of residents from their
rooms, the use of force against residents, and the reporting of
the use of force against residents;
c) Documents in the DHS Defendants’ personnel or
employment records regarding disciplinary proceedings or
actions against any DHS Defendant, including letters of
reprimand and disciplinary reports or investigations;
d) Documents in the DHS Defendants’ personnel or
employment records discussing or relating to the incidents
alleged in Plaintiff’s Complaint; and,
e) Wing logs for Plaintiff’s wing during the relevant time period.
3) Plaintiff’s motion to compel against the Nurse Defendants is
denied (d/e 87).
4) Plaintiff’s motion to conduct discovery on Defendant Kerr’s kick
boxing activities is denied (d/e 92). Discovery remains closed.
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5) Dispositive motions are due February 1, 2013.
6) The final pretrial conference is rescheduled to July 9, 2013 at
1:30 p.m. Defense counsel shall appear in person. Plaintiff shall appear
by video conference.
7) The jury selection and trial are vacated, to be rescheduled at the
final pretrial conference.
ENTERED:
January 7, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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