Brown v. Cain et al

Filing 130

RULING AND ORDER granting 123 Motion for a Rule to Show Cause. Defendants shall produce the requested offender pharmacy records as delineated in this Courts 6/13/2014 Ruling within thirty (30) days. The 127 Motion for Subpoena Duces Tecum is dismissed as moot. Signed by Judge Shelly D. Dick on 9/8/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LEWIS E. BROWN (#73428)

CIVIL ACTION NUMBER

VERSUS

11-00103-SDD-SCR

BURL CAIN, ET AL.

RULING AND ORDER
The battle over the discovery sought by pro se Plaintiff Lewis E. Brown (#73428)
continues to be hard fought by Defendants, N. Burl Cain, Warden of Louisiana State
Penitentiary (LSP), Darren Barr, Assistant Warden of LSP, and Jonathan Roundtree,
M.D., former Medical Director of LSP. Pending before the Court is Plaintiff’s Notice of
Objection Regarding Sufficiency of Notice of Compliance and Motion for Rule to Show
Cause, which Defendants have opposed.1 Plaintiff has filed a Reply.2 Also before the
Court is Plaintiff’s separate Motion for Subpoena Duces Tecum.3
On June 13, 2014, this Court issued a Ruling4 granting in part, and denying in
part the Motion for Production of Document and Information and Second Motion to
Amend Pre-trial Order5 filed by Plaintiff Lewis E. Brown (#73428). The Court granted
Plaintiff’s Motion as to his request for production of the following documents: (1) Pill
Call Manifests; (2) the Return of Damaged or Adulterated Medication Logs; (3) the
Identity of the LSP On-Site Pharmacist from April 19, 2010-April 18, 2011; (4) Drug

1

Rec. Doc. 123 and Rec. Doc. 125, respectively.
Rec. Doc. 126.
3
Rec. Doc. 127.
4
Rec. Doc. 120.
5
Rec. Doc. 118.
2

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Control Book; and (5) the Monthly Pharmacy Reports. Defendants were ordered to
produce the foregoing documents within 14 days from the date of this Ruling.
Four days after the Court issued its Ruling, the Defendants submitted a Notice of
Compliance which offered the following explanation for their inability to comply: “In
response, Defendants after due diligence search does not have in their possession the
requested information, as attested to by the sworn affidavit of Mary Labatut, Pharmacy
In Charge.”6 In her Affidavit, Ms. Labatut attested to the fact that she is the Pharmacist
in Charge at LSP in Angola, Louisiana.7 Ms. Labatut further stated that, from February
15, 2010 until April 30, 2010, she was on Family and Medical Leave (FMLA) due to an
illness and, therefore, was not actively working at Angola. She further attested that
LSP’s pharmacy closed in April of 2010, and “all records were transferred to Pharmcoor,
LLC based in Oklahoma City, Oklahoma based upon the contractual agreement.”8
Hence, Ms. Labatut stated that “no one” at LSP has access to this data anymore.9
Dissatisfied with the Defendants’ Notice, Plaintiff filed an objection and has
requested that Defendants be ordered to Show Cause as to why they have failed to
produce the requested information to which they have direct or indirect access.
Defendants argue that to hold them responsible for the actions of a third party,
PharmaCorr, LLC10, “to which they have no absolute control over or involvement in the
dispensation of medication delivery system is very burdensome and unreasonable
request.”

Defendants contend that Plaintiff’s discovery request is unreasonably

burdensome, cumulative, and can be obtained from another source—PharmaCorr—and

6

Rec. Doc. 121.
Rec. Doc. 121-1.
8
Rec. Doc. 121-1, p. 2.
9
Rec. Doc. 121-1, p. 2.
10
Pursuant to the contract, PharmaCorr, LLC, is actually the correct spelling of the contractor. 
7

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that Plaintiff has the opportunity to obtain the information from PharmaCorr.

Both

parties refer to the terms of the contract entered into between the State of Louisiana
and PharmaCorr, which Defendants attached to their memorandum.11 Upon review of
the contract, the Court finds merit in Plaintiff’s argument.
Plaintiff has directed the Court to the section of the contract that governs
“ownership” of the records. This section provides as follows:
All records, reports, documents, or other material prepared for the State
by Contractor in connection with the performance of the services
contracted for herein shall become the property of State, and shall, upon
request, be returned by Contractor to State, at Contractor’s expense, at
termination or expiration of this contract.12
According to a State Purchase Order attached to the contract, the parties’ twelve
month contract ended on April 18, 2011.13
The plain language of the contract could not be any clearer to the Court. Based
on the express terms of the contract, PharmaCorr as the Contractor will, at its own
expense, “upon request,” return “all records, reports, documents, or other material
prepared for the State” by PharmaCorr connected to the performance of its contracted
services.

Defendants have not addressed this contractual language.

Instead,

Defendants have directed the Court to Appendix A which delineates the express “Scope
of Service & Deliverables” PharmaCorr obligated itself to provide. Defendants focus on
one particular section which provides that “Contractor shall take possession of offender
pharmacy records in accordance with Louisiana Board of Pharmacy laws, Rules and

11

Rec. Doc. 125-1.
Rec. Doc. 125-1, p. 4.
13
Rec. Doc. 92-8, p. 13.
12

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Regulations.”14 It is unclear to the Court how this provision negates the Defendants’
“ownership” of said records, particularly when another section of the contract expressly
directs “[t]he Contractor [to] surrender to the State and/or State Agency all property of
the State and/or State Agency prior to settlement upon completion, termination, or
cancellation of this contract.”
The Court finds that Defendants have failed to demonstrate how production of
the discovery request would be unreasonably burdensome and unreasonable.

The

State’s contract with PharmaCorr ended in April of 2011. Therefore, pursuant to the
express terms of the contract, the State may now request that PhamaCorr return its
offender pharmacy records—records that still belong to and are property of the State—
at PharmaCorr’s expense. Accordingly, the Court finds the burden on the Defendants
to comply with Plaintiff’s discovery request is minimal at best.
For the foregoing reasons, Plaintiff’s Motion for a Rule to Show Cause is hereby
GRANTED.15 Defendants shall produce the requested offender pharmacy records as
delineated in this Court’s June 13, 2014 Ruling within thirty (30) days.
It is further ordered that Plaintiff’s Motion for Subpoena Duces Tecum be
dismissed as moot.16
Signed in Baton Rouge, Louisiana, on September 8, 2014.

S

JUDGE SHELLY D. DICK 
UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF LOUISIANA 

14

Rec. Doc. 125-1, p. 21. In their memorandum, Defendants erroneously claim that the relevant section
is section “g.” Rec. Doc. 125, p. 2.
15
Rec. Doc. 123.
16
Rec. Doc. 127. 

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