CHERRY v. LEVINE et al

Filing 63

ENTRY ON POST JUDGMENT 62 MOTION - This action was dismissed on February 28, 2017, in favor of the defendants on summary judgment. Dkt. 47 . On August 23, 2019, the plaintiff filed a motion asking the Court's assistance with the fact that in the Court's summary judgment ruling, certain sensitive medical information was discussed which he alleges has caused him severe mental distress. Dkt. 62 . To the extent the plaintiff's post-judgment motion must be treated as a Rule 6 0(b)(1) motion which allows a Court to relieve a party from final judgment based on mistake, inadvertence, surprise, or excusable neglect, "a motion for relief 'must be made within a reasonable time' after entry of judgment, which t he rule defines for subsections (1) through (3) as no later than one year after the entry of judgment." Not only is the plaintiff not actually seeking relief on a substantive basis from the final judgment, but his motion is untimely. Under these circumstances, the plaintiff's motion for Court assistance, dkt. 62 , must be denied. (See Entry.) Copy to Plaintiff via US Mail. Signed by Judge Sarah Evans Barker on 11/18/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANNY WILLIAM CHERRY,
Plaintiff,
v.
DR. LEVINE,
CORIZON HEALTH, INC.,
Defendants.

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No. 1:15-cv-01766-SEB-TAB

ENTRY ON POST JUDGMENT MOTION
This action was dismissed on February 28, 2017, in favor of the defendants on summary
judgment. Dkt. 47. On August 23, 2019, the plaintiff filed a motion asking the Court’s assistance
with the fact that in the Court’s summary judgment ruling, certain sensitive medical information
was discussed which he alleges has caused him severe mental distress. Dkt. 62. He alleges that this
violated the Federal Health Information Protection Act. Id.
By filing a claim that placed his medical condition at issue, the plaintiff inadvertently
caused the defendants to include specific confidential information in their briefs in support of
summary judgment and the Court to include that information in its ruling. It is unfortunate that this
has occurred, but at this time, the Court is not aware of any basis or authority on which to now
place such information under seal or any other type of restriction. Moreover, there is no “Federal
Health Information Protection Act” in the United States.
The Seventh Circuit has held that prisoners have a limited, not well-defined, constitutional
right to the confidentiality of medical records. See Shields v. Dane Cty. Jail Mental Health Dept,
No. 17-CV-266-WMC, 2018 WL 5307807, at *1 (W.D. Wis. Oct. 26, 2018) (citing Anderson v.
Romero, 72 F.3d 518, 523 (7th Cir. 1995) (affirming grant of qualified immunity based on claim

that defendants had disclosed inmate’s HIV-positive status)). Here, where the medical information
was not disclosed gratuitously as humor or gossip, these circumstances do not appear to rise to the
level of any constitutional violation. See Montgomery v. Zyck, No. CIV. 09-CV-129-GPM, 2009
WL 2448566, at *1 (S.D. Ill. Aug. 11, 2009) (the Seventh Circuit has yet to squarely address the
issue of whether an inmate has a privacy right in his medical records, but discussing other circuits
who have curtailed prisoners’ confidentiality rights by policies or regulations that are shown to be
reasonably related to legitimate penological interests).
To the extent the plaintiff’s post-judgment motion must be treated as a Rule 60(b)(1)
motion which allows a Court to relieve a party from final judgment based on mistake, inadvertence,
surprise, or excusable neglect, “a motion for relief ‘must be made within a reasonable time’ after
entry of judgment, which the rule defines for subsections (1) through (3) as no later than one year
after the entry of judgment.” Mendez v. Republic Bank, 725 F.3d 651, 657 (7th Cir. 2013) (quoting
Rule 60(c)(1)). Not only is the plaintiff not actually seeking relief on a substantive basis from the
final judgment, but his motion is untimely.
Under these circumstances, the plaintiff’s motion for Court assistance, dkt. [62], must be
denied.
IT IS SO ORDERED.

Date:

11/18/2019

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
DANNY WILLIAM CHERRY
249323
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362
Jeb Adam Crandall
BLEEKE DILLON CRANDALL ATTORNEYS
[e-mail]