Phillips v. Ottey et al
Filing
107
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/7/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ARTHUR PHILLIPS
:
v.
:
Civil Action No. DKC 14-0980
:
DR. COLIN OTTEY, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
the following motions: (1) a motion to quash subpoena, filed by
Plaintiff
Arthur
Phillips
(“Plaintiff”)
(ECF
No.
79);
(2)
a
motion for protective order, filed by Defendants Colin Ottey,
Ava
Joubert,
Greg
Flury,
Katie
Winner,
Carla
Buck,
Kristi
Cortez, and Wexford Health Sources, Inc. (“Defendants”) (ECF No.
85);
(3)
Defendants’
motion
to
seal
(ECF
No.
86);
(4)
Plaintiff’s motion to seal (ECF No. 91); and (5) Plaintiff’s
motion for leave to file a supplemental complaint (ECF No. 92).
The
issues
have
been
briefed,
and
hearing being deemed necessary.
following
reasons,
the
motion
the
court
now
Local Rule 105.6.
to
quash
will
be
rules,
no
For the
denied;
the
motion for protective order will be granted; the motions to seal
will be granted; and Plaintiff will be ordered to supplement his
motion
for
leave
to
file
a
supplemental
proposed supplemental complaint.
complaint
with
his
I.
Background
Plaintiff
is
an
inmate
currently
incarcerated
at
North
Branch Correctional Institution (“North Branch”) in Cumberland,
Maryland.1
He filed a civil rights complaint under 42 U.S.C.
§ 1983 for deliberate indifference to serious medical needs in
violation of the Eighth Amendment and unlawful retaliation under
the
First
Amendment.
Plaintiff
seeks
money
damages
from
Defendant Wexford Health Services, Inc. (“Wexford”), a private
medical corporation contracted to provide medical treatment to
inmates
of
Maryland
correctional
institutions,
and
individual Defendants, who are medical professionals.
1;
45).
Plaintiff
alleges
that
he
was
denied
the
(ECF Nos.
appropriate
treatment for knee pain and instability caused by an anterior
cruciate ligament tear and for keloids.
(ECF No. 45 ¶¶ 20-22).
In his amended complaint, Plaintiff identified March 6, 2013,
through
March
8,
2014,
as
the
“relevant
timeframe”
for
his
allegations, all of which occurred during his incarceration at
North Branch.
(Id. ¶¶ 7, 27).
Plaintiff did not allege an
ongoing denial of medical treatment or seek injunctive relief.
The
scheduling
order
deadline
for
the
joinder
of
additional
parties and amendment of pleadings was August 31, 2015 (ECF No.
1
Plaintiff was incarcerated at North Branch during the time
period in which his alleged harms occurred. (ECF No. 45 ¶ 7).
He was incarcerated on a provisional basis at the Patuxent
Institution (“Patuxent”) in Jessup, Maryland, for evaluation for
admission to a rehabilitation program between May 2015 and April
2016. (See ECF Nos. 93-6, at 1; 93-7, at 1). After entrance to
that program was denied, Plaintiff returned to North Branch.
2
43), and Plaintiff filed the amended complaint on that date (ECF
No. 45).
Discovery deadlines have been postponed several times
at the parties’ request (see ECF Nos. 54; 63; 76; 82; 102), but
fact and expert discovery will now close on November 14, 2016,
and the dispositive pretrial motions deadline is January 27,
2017 (ECF No. 102).
On
June
15,
2016,
Defendants’
subpoena
Phillips
Murray,
v.
Plaintiff
seeking
et
al.,
filed
a
motion
the
settlement
No.
DKC-11-0302
Corizon Health, Inc. (“Corizon”).2
to
quash
agreement
(D.Md.),
(ECF No. 79).
in
from
Defendants
responded in opposition (ECF No. 84), and Plaintiff filed a
reply
(ECF
protective
No.
order
89).
On
July
permitting
15,
them
Defendants
to
moved
produce
for
a
Plaintiff’s
psychological evaluations, which are included in his requested
medical records, as designated for “attorney’s eyes only.”
No. 85).
Defendants have also moved to seal those records,
which were attached as an exhibit to their motion.
86).
(ECF
(ECF No.
Plaintiff filed a response in opposition to the motion for
protective order and also filed a motion to seal an exhibit to
2
Plaintiff filed suit against Corizon, a prior medical
contractor
for
North
Branch,
and
individual
medical
professionals, including Defendants Ottey and Flury, in 2011,
alleging similar civil rights violations related to the same
health conditions. See Amended Complaint, Phillips, No. DKC-110302 (D.Md. Feb. 17, 2012), ECF No. 42 ¶¶ 20-22.
That action
was settled in 2012, see Order, Phillips, No. DKC-11-0302 (D.Md.
Nov. 19, 2012), ECF No. 85, and Plaintiff filed a stipulation of
dismissal with prejudice as to Corizon, the only remaining
defendant, on March 4, 2013, Stipulation, Phillips, No. DKC-110302 (D.Md. Mar. 3, 2013), ECF No. 90.
3
his response (ECF Nos. 90; 91), and Defendants replied (ECF No.
94).
Finally, Plaintiff filed a motion for leave to file a
supplemental complaint.
(ECF No. 92).
Defendants opposed this
motion (ECF No. 96), and Plaintiff replied (ECF No. 101).
II.
Motion to Quash
Plaintiff
has
moved
to
quash
Defendants’
subpoena,
or
subpoenas, to Corizon for a copy of the confidential settlement
agreement in Phillips, No. DKC 11-0302.3
The subpoenas were
issued on June 9, 2016, and served by certified mail.
84-7; 84-8).
Defendants’ counsel served copies upon Plaintiff’s
counsel by first-class mail, also on June 9.
84-8).
(ECF Nos.
(ECF Nos. 84-7;
Plaintiff moved to quash on June 15, stating that his
motion “is based on Federal Rule of Civil Procedure 45(a)(4),
45(d)(3), Federal Rules of Evidence 401 and 408.”
He
argues
in
reply
that
the
subpoena
(ECF No. 79).
seeks
irrelevant
information outside the scope of discovery under Fed.R.Civ.P.
26(b)(1).
(ECF No. 89, at 1-3).4
Plaintiff also argues that the
subpoena should be quashed because Defendants did not serve a
3
Plaintiff’s motion addresses one subpoena, served on the
custodian of records for Corizon Health, Inc. (ECF No. 79-1),
but Defendants note that they also served an identical subpoena
on the custodian of records for Corizon, LLC (ECF No. 84-8).
Defendants first sought the settlement agreement through
discovery. (ECF No. 84, at 2). After Plaintiff objected on the
ground that the settlement was confidential (ECF No. 84-4, at
35-36), Defendants served the third-party subpoenas rather than
filing a motion to compel.
4
Although Plaintiff’s motion stated that a memorandum of
law was forthcoming (ECF No. 79), and the court requested that
counsel supplement the motion with a memorandum in support on
June 27 (ECF No. 83), no memorandum was filed.
4
copy
on
Plaintiff
before
Fed.R.Civ.P. 45(a)(4).
serving
Corizon,
(Id. at 3-5).
as
required
by
Defendants argue that
relevant confidential agreements are discoverable in the Fourth
Circuit,
and
that
“the
agreement
may
impact
both
Phillips’
claims and the Healthcare Provider Defendants’ defenses in the
instant lawsuit.
If, for example, Phillips agreed to waive any
future claims that he may have relating to his alleged knee and
keloid conditions, then his claims in the instant lawsuit may be
barred.”
(ECF No. 84, at 4).
Corizon did not move to quash the
subpoenas, and it is unclear whether Corizon received actual
notice of or complied with the subpoenas.5
“[T]he scope of discovery allowed under a subpoena is the
same as the scope of discovery allowed under Rule 26.
regardless
of
whether
the
Court
considers
Plaintiff’s
Thus,
Motion
under Rule 45 or Rule 26, the Court must review Defendant’s
subpoenas
5
under
the
relevancy
standards
set
forth
in
Rule
The United States Court of Appeals for the Fourth Circuit
has not addressed whether a non-party subpoena must be
personally served, but courts in this district have focused on
whether the recipient has received “actual notice” of the
subpoena.
Hall v. Sullivan, 229 F.R.D. 501, 502-06 (D.Md.
2005). In addition, a party generally has standing to challenge
a non-party subpoena only where the party “claims some personal
right or privilege in the information sought.” Maxtena, Inc. v.
Marks, 289 F.R.D. 427, 441 n.12 (D.Md. 2012) (quoting United
States v. Idema, 118 F.App’x 740, 744 (4th Cir. 2005)). Although
it is unclear whether Corizon received actual notice and
Plaintiff is challenging a subpoena issued to a non-party, the
merits of the motion may be reached here because, as a party to
the confidential settlement agreement, Plaintiff has a personal
right in the confidential information sought by Defendants.
Accordingly, he has standing to object to the subpoenas.
5
26(b).”
Singletary v. Sterling Transport Co., Inc., 289 F.R.D.
237, 240-41 (E.D.Va. 2012) (citations omitted) (citing Cook v.
Howard,
484
F.App’x
805,
812
(4th
Cir.
2012)
(per
curiam)).
Pursuant to Fed.R.Civ.P. 26(b)(1):
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party’s claim or defense and proportional to
the needs of the case, considering the
importance of the issues at stake in the
action, the amount in controversy, the
parties’
relative
access
to
relevant
information, the parties’ resources, the
importance of the discovery in resolving the
issues, and whether the burden or expense of
the proposed discovery outweighs its likely
benefit.
Information within this scope of
discovery need not be admissible in evidence
to be discoverable.
A subpoena which “requires disclosure of privileged or other
protected
matter,”
however,
Fed.R.Civ.P. 45(d)(3)(iii).
must
be
quashed
or
modified.
The document subpoenaed here is a
confidential settlement agreement, but “the Fourth Circuit, like
the majority of courts, has declined to recognize a federal
settlement privilege, and courts in this district have declined
to apply a settlement privilege in discovery disputes.”
Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Porter Hayden Co., No.
CCB-03-3408, 2012 WL 628493, at *3 (D.Md. Feb. 24, 2012).
The
Phillips
v.
Murray
settlement
agreement
is
not
privileged and is relevant under the standard of Fed.R.Civ.P.
26(b)(1),
6
and
accordingly,
it
is
discoverable.6
The
claims
Plaintiff acknowledges in his reply that the Fourth
Circuit does not recognize a settlement privilege and that the
6
Plaintiff brings here are nearly identical to the claims he
brought in Phillips; they relate to the treatment of the same
underlying
medical
conditions,
at
the
same
correctional
institution, by some of the same medical professionals.7
The
constitutional violations alleged here date from March 6, 2013,
just two days after the filing of Plaintiff’s stipulation of
dismissal
as
to
Plaintiff
argues
Corizon
that
in
Phillips.
“Defendants
seek
Moreover,
here
to
although
discover
a
settlement agreement from a prior and distinct action” (ECF No.
89, at 2), Plaintiff himself has acknowledged the relevance of
the previous case to his claims and Defendants’ defenses.
In
the
to
same
interrogatory
responses
in
which
he
objected
producing the settlement agreement (ECF No. 84-4, at 35-36), he
agreement is not privileged.
Plaintiff argues, however, that
even if the agreement is not privileged, it should be protected
from discovery in accordance with the intent of Fed.R.Evid. 408,
which excludes statements made in the course of settlement
negotiations from evidence. (ECF No. 89, at 3). The relevance
inquiry is distinct from admissibility at trial.
Fed.R.Civ.P.
26(b)(1) (“Information within this scope of discovery need not
be admissible in evidence to be discoverable.”); see also Porter
Hayden Co., 2012 WL 628493, at *3 (“[T]he Fourth Circuit has not
imposed a settlement privilege with respect to discovery.
To
the contrary, courts in this circuit have found that ‘relevance
not admissibility, is the appropriate inquiry with regard to
whether or not the information sought . . . is discoverable.’
(quoting Herchenroeder v. Johns Hopkins Univ. Applied Physics
Lab.,
171 F.R.D. 179, 181 (D.Md. 1997) (alteration in
original))).
7
Two of the Defendants here, Defendants Ottey and Flury,
were also defendants in the previous suit, although they do not
appear to have been parties to the settlement agreement in
dispute. (See Consent Motion to Reopen Case, Phillips, No. DKC11-0302 (D.Md. Jan. 16, 2013), ECF No. 87; Stipulation,
Phillips, No. DKC-11-0302 (D.Md. Mar. 3, 2013), ECF No. 90).
7
also
responded
that
“Defendants
were
long
aware
of
these
[medical treatment] needs, particularly given the prior lawsuit
against some of them for similar conduct in Phillips v. Murray”
(id. at 27; see also id. at 3 (“Defendant [Ottey] should have
been
aware
beginning
of
in
subject
of
a
others,
which
Murray[.]”)).
Plaintiff’s
February
prior
was
knee
injury
2009. . . .
lawsuit
settled
These
against
before
and
facial
injuries
Defendant
trial.
Dr.
See
keloids
were
the
Ottey
and
Phillips
v.
Plaintiff also detailed his medical complaints
between 2008 and 2014 in these responses, necessarily including
those that were at issue in the previous suit.
(Id. at 3-24).
The settlement agreement is relevant under the liberal standard
of Fed.R.Civ.P. 26(b)(1) and is discoverable.
Plaintiff
alternative
also
ground
moves
that
to
quash
Defendants
the
did
prior notice of the non-party subpoenas.
subpoena
not
provide
on
the
him
with
(ECF No. 89, at 3-5).
Defendants served a copy of the subpoenas on Plaintiff’s counsel
by mail the same day they served the subpoenas on the third
parties
by
mail.
Plaintiff
argues
that
the
plain
text
of
Fed.R.Civ.P. 45 requires notice to the parties of a non-party
document subpoena “before it is served on the person to whom it
is directed,” Fed.R.Civ.P. 45(a)(4) (emphasis added), and that
failure to comply warrants quashing the subpoena.
Rule
45
does
require
notice
to
other
parties
before
a
subpoena commanding the production of documents is served on a
8
nonparty.
Id.
The
“original
purpose”
of
this
notice
requirement is to “enable[e] the other parties to object or to
serve a subpoena for additional materials.”
Fed.R.Civ.P. 45
advisory committee’s note to 2013 amendment; see also Potomac
Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 380
(D.Md. 1999) (“When a party fails to receive prior notice of the
information sought from a non-party, a party is deprived of its
greatest
safeguard
under
the
Rule,
that
is,
the
ability
to
object to the release of the information prior to disclosure.”).
Upon a finding that notice was not given,
“courts can either strike the subpoenas or
allow the affected parties the opportunity
to object.”
PagánColón v. Walgreens of San
Patricio, Inc., 264 F.R.D. 25, 28 (D.P.R.
2010);
see
also
Biocore
Medical
Technologies, Inc. v. Khosrowshahi, 181
F.R.D. 660, 668 (D.Kan. 1998).
“Delayed
service alone, however, is not a basis to
quash a subpoena.
The objecting party must
also demonstrate prejudice.”
Malinowski v.
Wall Street Source, Inc., No. 09 Civ.
9592(JGK)(JLC), 2010 WL 4967474, at *2
(S.D.N.Y. Nov. 23, 2010).
Mayor & City Council of Baltimore v. Unisys Corp., No. JKB-12614,
2013
WL
6147780,
at
*3
(D.Md.
Nov.
21,
2013)
(denying
motion to quash where opposing party did not learn of non-party
subpoena until three months after service because party suffered
no prejudice); cf. Potomac Elec. Power Co., 190 F.R.D. at 381-82
(ordering plaintiff to produce subpoenaed non-party documents to
defendants and advise them of any intended use to alleviate
prejudice, but denying motion for protective order to preclude
9
use
where
non-party
subpoenas
had
been
issued
without
prior
notice to defendants and at the close of discovery).
Plaintiff
subpoena
arguably
rather
than
received
the
prior
concurrent
notice
notice
required.
of
the
Assuming
arguendo that this service violated Fed.R.Civ.P. 45(a)(4), the
violation does not warrant quashing the subpoenas as Plaintiff
cannot
show
prejudice.
Plaintiff
received
notice
of
the
subpoena from Defendants, and accordingly, he was able promptly
to file this motion to quash prior to the production of any
documents.
to
object”
advisory
The “original purpose of enabling the other parties
has
therefore
committee’s
note
been
to
satisfied.
2013
Fed.R.Civ.P.
amendment.
45
Moreover,
as
Plaintiff was a party to the agreement sought from Corizon, he
already had access to the discovery sought.
Plaintiff received
notice of the subpoena, had an opportunity to object, and had
access to the subpoenaed material.
He accordingly has not shown
prejudice from concurrent notice of the document subpoena, and
the subpoenas will not be quashed on this ground.
The settlement agreement is relevant and not privileged.
There has been no showing of burden or expense related to this
discovery, but Corizon presumably has a copy of the agreement in
its possession as a party to it, and the burden of production
should be minimal.
If Defendants’ notice was a violation of
Fed.R.Civ.P. 45(a)(4), the concurrent notice did not prejudice
Plaintiff.
Plaintiff’s motion to quash will be denied.
10
III. Motion for Protective Order
Plaintiff
records,
has
requested
including
discovery,
access
and
Defendants
and
mental
have
to
his
complete
psychological
moved
for
a
medical
evaluations,
protective
in
order
pursuant to Fed.R.Civ.P. 26(c) regarding Plaintiff’s access to
his
mental
discovery
health
is
records.
limited
to
(ECF
“any
No.
85).
The
nonprivileged
scope
that
matter
of
is
relevant to any party’s claim or defense and proportional to the
needs
of
the
case,”
and
may
be
further
frequency, and extent by the court.
limited
in
scope,
Fed.R.Civ.P. 26(b).
For
good cause shown, the court may “issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense,” including an order prohibiting the
disclosure or proscribing terms or a method for the discovery.
Fed.R.Civ.P. 26(c).
The contested mental health records, which have been filed
under
seal
Plaintiff’s
(ECF
No.
physical
86-1),
do
conditions
not
concern
that
are
the
the
treatment
basis
of
of
the
complaint, and accordingly do not appear to be relevant to this
case and within the scope of discovery.8
8
Defendants do not
The mental health records contain notes and assessments
made during 2015 and 2016 while Plaintiff was incarcerated at
Patuxent, and therefore also fall outside the relevant March
2013 to March 2014 time frame of the amended complaint.
As
discussed below, Plaintiff has moved to supplement the amended
complaint, but it is unclear whether Plaintiff intends to
include allegations relating to his care at Patuxent or to the
time period of the mental health records. Regardless, Plaintiff
has not stated any claims related to his mental health care.
11
object to the production of these records, however, so long as
they are designated for “attorney’s eyes only” and not disclosed
directly to Plaintiff.
(See ECF No. 85, at 1-2).
Defendants
argue that the records contain “highly sensitive” information
regarding Plaintiff’s “social history and psychiatric history,”
and “also describe and assess Phillips’ personality, including
findings and diagnoses, and the security risk that he poses.”
(ECF
No.
85-1,
at
2).
The
records
contain
analyses
and
diagnoses of Plaintiff’s psychological conditions, as well as
observations from group sessions, made by several health care
providers at Patuxent to determine Plaintiff’s eligibility for a
rehabilitation program.
evaluations
have
not
(See id.; ECF No. 90, at 1).
previously
been
provided
to
These
Plaintiff.
While Plaintiff is no longer incarcerated at Patuxent, he is
currently serving a 120 year sentence (see ECF No. 94-1 ¶ 18.a),
and
Defendants
evaluators
during
his
Defendants
at
argue
North
that
Branch,
incarceration
note
Plaintiff
that
may
Patuxent,
(ECF
Nos.
Plaintiff
or
85-1,
has
a
again
encounter
another
at
3;
history
his
institution
94,
at
4).
of
violent
behavior, including recent incidents at North Branch, and aver
that allowing Plaintiff to review his own mental health records
“raises serious security concerns for both correctional staff
and the evaluators.”
(ECF No. 85-1, at 3; accord ECF Nos. 94,
at 4; 94-2 ¶¶ 5-8).
12
Plaintiff contends that Defendants’ refusal to disclose the
records constitutes a violation of the Maryland Confidentiality
of Medical Records Act, Md. Code Ann., Health–Gen. §§ 4-301-309,
and that he has a “right to access his mental health records”
under
Maryland
Department
of
Public
Safety
and
Services regulations, Md. Code Regs. 12.02.24.07.
at 2-3).
only
(ECF No. 90,
Plaintiff further argues that Defendants have offered
vague
protective
cause.
Correctional
and
speculative
order,
and
claims
accordingly
of
have
harm
in
moving
failed
to
for
show
a
good
In particular, he notes that Defendants have shown no
evidence that Plaintiff will be incarcerated at a facility other
than North Branch in the future or that the Patuxent evaluators
will work at North Branch, and argues that Defendants have not
provided sufficient evidence or specificity as to the security
concerns alleged.
(Id. at 6).
Plaintiff does not have an unqualified right to access his
mental health records under state or federal law.
Maryland law
does not guarantee a patient’s access to his psychiatric or
psychological records, but rather gives health care providers
the discretion to refuse to disclose portions of those records
even to the patient.
Md. Code Ann., Health–Gen. § 4-304(a)(2).
Plaintiff characterizes section 4-307, Confidentiality of mental
health records; disclosure, as a list of exclusive exceptions
from the otherwise absolute right of a person in interest to
access
his
mental
health
records,
13
but
these
provisions
are
better understood as providing additional restrictions on the
disclosure of mental health records in specific circumstances.
See
id.
§
developed
4-307(b)
in
(“The
connection
with
disclosure
the
of
provision
a
of
medical
record
mental
health
services shall be governed by the provisions of this section in
addition
to
the
other
provisions
of
this
subtitle.”).
The
provisions of section 4-307 do not directly address a patient’s
right
of
access
except
in
the
evaluations related to employment.
context
of
mental
health
Id. § 4-307(f).
Instead,
they are primarily concerned with ensuring the confidentiality
of
mental
Records
health
Act
records.9
affords
The
significant
Confidentiality
protections
to
of
Medical
Plaintiff’s
mental health records to prevent their disclosure, but it does
not guarantee his own access.
Petitioner
Public
that
Safety
Plaintiff
records.”
also
and
has
argues
that
Correctional
the
right
(ECF No. 90, at 2).
the
Maryland
Services
to
access
Department
regulations
his
of
“confirm
mental
health
Under the regulations, an inmate
has the right to request access to psychological information in
his case record through a written request to the warden.
9
Md.
The provisions generally provide additional protections to
prevent the disclosure of mental health records; for example,
limiting disclosures made without the authorization of a person
in interest, Md. Code Ann., Health–Gen. § 4-307(c); limiting the
disclosure of a provider’s personal notes, id. § 4-307(d);
limiting disclosure to preserve the objectivity of psychological
tests, id. § 4-307(e); and limiting disclosure of records that
relate to or identify more than one recipient in group or family
therapy, id. § 4-307(g).
14
Code Regs. 12.02.24.07(F).
An inmate does not have a right to
receive such access, however.
The regulations provide that the
disclosure determination is to be made by the inmate’s warden,
in
consultation
according
to
with
the
the
appropriate
provisions
of
psychology
section 4-307.
staff
and
Id.
The
regulations provide procedures for when access is granted and
for
when
access
is
denied,
and
detail
the
procedure
for
an
appeal of a warden’s decision to deny access to the Commissioner
of
Correction.
Id.;
12.02.24.07(H).
Similarly,
federal
regulations provide that:
[A] correctional institution or a covered
health
care
provider
acting
under
the
direction of the correctional institution
may deny, in whole or in part, an inmate’s
request to obtain a copy of protected health
information, if obtaining such copy would
jeopardize the health, safety, security,
custody, or rehabilitation of the individual
or of other inmates, or the safety of any
officer, employee, or other person at the
correctional institution or responsible for
the transporting of the inmate.
45 C.F.R. § 164.524.10
At issue here is whether Defendants have shown good cause
sufficient to warrant a protective order restricting access to
these mental health records to Plaintiff’s counsel.
10
Maryland
Plaintiff argues that Maryland’s law is not preempted by
the federal regulations because Maryland provides for greater
patient access to records and is accordingly more stringent.
See 45 C.F.R. § 160.202(6), 203(b).
The question of federal
preemption need not be decided here because even if Maryland law
is not preempted, it does not provide an unqualified right of
access to mental health records to patients generally or to
inmates in particular.
15
law
defers
to
health
care
providers’
determinations
of
the
suitability of disclosure of mental health records to patients.
Furthermore, both state and federal regulations recognize the
security risks such disclosure may present when the patient is
incarcerated, to the patient as well as to others, by putting
the
disclosure
decision
instructing
providers
Defendants,
Plaintiff’s
in
to
the
take
health
warden’s
those
care
discretion
risks
into
providers,
have
and
account.
raised
serious safety concerns regarding the disclosure of Plaintiff’s
mental health records.
Moreover, as the record does not reflect
that Plaintiff has made a request to review his mental health
records
to
regulations,
the
North
Branch
Plaintiff
simply
warden
as
appears
to
required
be
by
attempting
the
to
circumvent the limitations on inmate case record access through
use
of
the
discovery
process.
Plaintiff
does
not
have
an
unqualified right of access to his mental health records, and,
as they are not at issue in this litigation, it would not be
appropriate for this court to make the disclosure determination
that Maryland law places within the discretion of Plaintiff’s
health care providers and warden.
Defendants have shown good
cause for a protective order and their motion will be granted.
The mental health records may be produced under a designation of
“attorney’s eyes only.”11
11
Defendants have moved to place exhibit 2 to their motion
for protective order, the mental and psychological evaluations
16
IV.
Plaintiff’s Motion to Seal
Plaintiff filed an exhibit to his opposition to Defendant’s
motion for protective order that contained personal identifiers
(ECF No. 90-1), and subsequently filed a motion to seal that
exhibit and replace the filed version with a redacted version
(ECF Nos. 91; 91-1).
Pursuant to the Federal Rules of Civil
Procedure:
Unless the court orders otherwise, in an
electronic or paper filing with the court
that
contains
an
individual’s
socialsecurity
number,
taxpayer-identification
number, or birth date, the name of an
individual known to be a minor, or a
financial-account
number,
a
party
or
nonparty making the filing may include only:
(1) the last four digits of the socialsecurity number and taxpayer-identification
number;
(2) the year of the individual’s birth;
(3) the minor’s initials; and
(4) the last four digits of the financialaccount number.
Fed.R.Civ.P. 5.2(a).
the
District
parties
are
of
Under the United States District Court for
Maryland’s
instructed
to
Privacy
redact
Policy
in
their
for
civil
cases,
entirety
Social
Security numbers, financial account numbers, and dates of birth,
contained in Plaintiff’s medical record, under seal.
(ECF No.
86).
Plaintiff has not contested this motion.
As discussed
above, the exhibit contains confidential mental health medical
records, and, as Defendants note, filing them publicly would
also
undermine
the
purpose
of
the
protective
order.
Accordingly, sealing the records is necessary.
Defendants’
motion will be granted, and exhibit 2 (ECF No. 85-3, filed under
seal at ECF No. 86-1), will remain under seal.
17
unless relevant to the case or otherwise ordered by the court.
(Privacy Policy – Civil Cases (2004) ¶¶ 1-2(a), available at
http://www.mdd.uscourts.gov/Misc/privacypolicyprocedures.pdf).
Plaintiff’s proposed redaction does not redact Plaintiff’s
date of birth, and therefore does not comply with Fed.R.Civ.P.
5.2 or the District of Maryland’s policy.
Plaintiff’s motion to
seal will be granted, and the exhibit (ECF No. 90-1) will remain
under
seal,
but
Plaintiff
will
be
instructed
redacted version within fourteen days.
that
Defendants
identifiers
in
an
have
not
exhibit
motion for protective order.
their
refile
a
The court further notes
redacted
to
to
Plaintiff’s
reply
(ECF No. 94-1).
in
personal
support
of
the
This exhibit will
be placed under seal as well, and Defendants will be instructed
to refile a redacted version within fourteen days.
The parties
are
If
encouraged
to
review
their
public
filings.
further
redactions of personal identifiers are necessary, the parties
may request that the document be withdrawn and promptly refile
the
document
with
appropriate
redactions,
and
must
redact
personal identifiers in all public filings going forward unless
otherwise ordered.
V.
A motion to seal need not be filed.
Motion to File a Supplemental Complaint
Plaintiff
has
moved
for
leave
to
file
a
supplemental
complaint pursuant to Fed.R.Civ.P. 15(d).
On motion and reasonable notice, the court
may, on just terms, permit a party to serve
a supplemental pleading setting out any
transaction,
occurrence,
or
event
that
18
happened after the date of the pleading to
be supplemented.
The court may permit
supplementation even though the original
pleading is defective in stating a claim or
defense.
The court may order that the
opposing party plead to the supplemental
pleading within a specified time.
Fed.R.Civ.P. 15(d).
events
that
have
A supplemental complaint therefore concerns
occurred
after
the
date
of
the
operative
pleading, while an amended complaint relates to matters that
occurred prior to the date of the pleading.
See Reyazuddin v.
Montgomery Cty., Md., No. DKC 11-0951, 2012 WL 5193837, at *3
(D.Md. Oct. 18, 2012) (citing Connectu LLC v. Zuckerberg, 522
F.3d 82, 90 (1st Cir. 2008)).
Despite this distinction, “the
standards used by a district court in ruling on a motion to
amend
or
on
a
motion
to
supplement
are
nearly
identical.”
Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002).
“In
either situation, leave should be freely granted, and should be
denied only where ‘good reason exists . . ., such as prejudice
to
the
defendants.’”
Id.
(alteration
in
original)
(quoting
Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir.
2002)).
Plaintiff did not file his proposed supplemental pleading
with
his
analysis.
complaint,
motion
to
supplement,
complicating
the
court’s
The operative pleading in this action is the amended
which
identifies
the
relevant
time
period
of
Plaintiff’s allegations as March 6, 2013, through March 8, 2014,
and alleges that all of the violations occurred at North Branch.
19
(ECF No. 45 ¶¶ 7, 27).
The amended complaint does not allege
ongoing harm, and it does not seek injunctive relief.
Plaintiff
avers that he does not intend to name additional defendants or
add causes of action in his supplemental complaint, but instead
seeks to add additional allegations of deficient medical care
pertaining to the same knee injury and skin disorder that have
occurred
since
Plaintiff
the
alleges
filing
that
of
his
he
has
complaint.
not
Specifically,
received
a
renewed
authorization for a bottom bunk, as is necessitated by his knee
pain, or a renewed authorization for facial hair trimmers, as is
necessitated
by
his
facial
keloids.
(ECF
No.
93,
at
3).
Defendants argue that supplementing the amended complaint to add
these allegations will prejudice them because they have already
taken Plaintiff’s deposition and access to a bottom bunk and
facial
hair
trimmers
additional discovery.”
are
“new
claims”
which
(ECF No. 96, at 3-4).
“will
require
Defendants also
argue that Plaintiff “cannot bring his claims against Defendants
‘up to date’” because the health care provider Defendants are
not currently providing him treatment.
The
allegations
Plaintiff
seeks
(Id.).
to
add
to
his
amended
complaint appear to relate to the same harms he pled in the
amended complaint, and Plaintiff had additionally alleged in the
original complaint that Defendants had failed in the past to
renew his authorizations for a bottom bunk and facial trimmers.
(See ECF No. 1 ¶¶ 13, 26).
Moreover, discovery has not yet
20
closed,
it
does
not
appear
from
the
briefing
that
these
allegations will require significant additional discovery, and
Plaintiff was in fact already asked about his current medical
treatment, including his current assignment to a top bunk and
lack of authorization for facial trimmers, during his recent
deposition.
(See
ECF
No.
101,
at
3-5).
The
interests
of
judicial economy will likely be best served by considering all
of Plaintiff’s allegations of past failures to provide medical
care
along
with
his
allegations
that
these
failures
are
continuing.
It is unclear from Plaintiff’s briefing, however, whether
the supplemental complaint will allege constitutional violations
by health care providers at Patuxent, which could necessitate
further discovery and arguably cause prejudice.
Plaintiff was
incarcerated at Patuxent from May 2015 through April 2016, and
states
that
he
received
“some
treatment”
while
at
Patuxent,
which “ceased upon Plaintiff’s transfer back to [North Branch].”
(ECF No. 93, at 2-3).
intends
to
allege
He does not clarify, however, whether he
that
the
constitutionally deficient.
a
lack
of
treatment
care
received
at
Patuxent
was
Plaintiff also repeatedly refers to
“[o]ver
references “longstanding” issues.
the
past
eight
years,”
and
(ECF No. 93, at 3, 5).
The
amended complaint dates the alleged harms only from March 6,
2013,
and
timeframe.
discovery
has
presumably
been
limited
by
that
In addition, Plaintiff was previously involved in
21
litigation on these issues against some of the same Defendants
before
that
date,
potentially
raising
additional
issues
Plaintiff intends to include allegations of earlier harm.
if
If
Plaintiff intends to include allegations before March 2013, he
would
need
to
move
for
leave
to
file
instead of a supplemental complaint.12
an
amended
complaint
Accordingly, Plaintiff
will be instructed to supplement his motion with a copy of his
proposed supplemental complaint before his motion for leave to
file a supplemental complaint is decided.
VI.
Conclusion
For the foregoing reasons, the motion to quash subpoena
filed by Plaintiff Arthur Phillips will be denied; the motion
for
protective
order
filed
by
Defendants
Colin
Ottey,
Ava
Joubert, Greg Flury, Katie Winner, Carla Buck, Kristi Cortez,
and Wexford Health Sources, Inc. will be granted; the motions to
seal will be granted; and Plaintiff Arthur Phillips will be
instructed
to
supplement
his
motion
for
leave
to
file
a
supplemental complaint with his proposed supplemental complaint.
/s/
DEBORAH K. CHASANOW
United States District Judge
12
As the scheduling order deadline for amendment of the
pleadings was August 31, 2015 (ECF No. 43), a motion for leave
to file an amended complaint must satisfy both Fed.R.Civ.P.
15(a) and Fed.R.Civ.P. 16.
22
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