Cowan v. Miller et al

Filing 54

ORDER DENYING Plaintiff's 49 Motion to Release Medical Records--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM COWAN,
Case No. 2:15-cv-12428
District Judge Gershwin Drain
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
TRENT MILLER, et al.,
Defendants.
___________________________________/

ORDER DENYING PLAINTIFF’S MOTION TO RELEASE MEDICAL
RECORDS (DE 49)
Plaintiff, William Cowan, is a state inmate who is proceeding without the
assistance of counsel. On September 26, 2016, Plaintiff filed a document titled
“motion to release medical documents that surrounds the event of July 2, 2014
only.”1 DE 49. The entirety of the motion is as follows: “I, William Cowan is
[sic] filing this motion to release medical documents that contains [sic] to my
injuries that surrounds the incident of July 2, 2014 ‘only’!” Id. On September 30,
2016, Judge Drain issued an order referring Plaintiff’s motion to me for resolution.
(DE 50.)
Defendants filed a response in opposition on October 5, 2016, which
contains two main points. (DE 52.)

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First, Defendants contend that Plaintiff

The Court has standardized the idiosyncratic capitalization used in the motion.

recently refused to sign an authorization form for the release of his medical
information.

Second, Defendants note that Plaintiff may obtain his medical

records via making a proper request pursuant to MDOC Operating Procedure
03.04.108B “Prisoner Access to Medical Records”.2
Generally, a party may obtain documentary evidence via making a proper
discovery request under Federal Rule of Civil Procedure 34, after which the party
to whom the request is addressed may either comply or object to the request on
several possible legally cognizable grounds. The instant motion is fatally flawed
for several reasons.

First, Plaintiff has failed to certify, as required by

Fed.R.Civ.P. 37(a)(1), that he “in good faith conferred or attempted to confer with
the person or the party failing to make disclosures or discovery in an effort to
obtain it without court action.” Second, he failed to provide, as required by Local
Rule 37.2, a “verbatim recitation of each…request…which is the subject of the
motion or a copy of the actual discovery document which is the subject of the
motion.” Third, there is no indication that Plaintiff sought the records under
The Michigan Department of Corrections (“MDOC”) was dismissed as a party in
July 2016 (DE 45) but the remaining Defendants, who are MDOC employees, have
not argued that they are not the custodians of the records which Plaintiff seeks.
However, Plaintiff’s refusal to sign a form which would provide Defendants with
access to his medical records would unavoidably inhibit their ability to provide
those same records to Plaintiff. Nonetheless, given Plaintiff’s failure to seek the
records in discovery or through the MDOC process (which will be discussed
further infra) the Court will not definitively opine as to whether Plaintiff’s refusal
to provide Defendants with access to the records dooms his motion.
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Fed.R.Civ.P. 34 before filing it. See, e.g., Pasley v. Caruso, 2010 WL 3907497, at
*1 (E.D.Mich. Sept. 29, 2010) (denying a pro se incarcerated plaintiff’s request for
medical records because, inter alia, “Plaintiff has not shown that he served
Defendant Caruso with a proper discovery request pursuant to Federal Rule of
Civil Procedure 34.”). 3
In addition, Plaintiff may obtain the medical records pursuant to making a
proper request under MDOC Operating Procedure 03.04.108.4 The volume of
Plaintiff’s medical records is unclear, so it cannot be known with certainty what
costs Plaintiff would incur if he received them pursuant to a request under MDOC
The Court’s normal practice is to not issue a ruling on a motion until after a reply
is filed or the time for doing so under E. D. Mich. LR 7.1 has expired. However,
this is not a typical situation, because no reply brief could cure the inherently fatal
defects in the motion. Therefore, waiting upon the filing of what would be a futile
reply brief would only cause an unnecessary delay, especially since a party may
not raise arguments for the first time in a reply brief. See, e.g., Clark v. Shop24
Global, LLC, 77 F.Supp.3d 660, 677 n. 6 (S.D. Ohio 2015) (holding that “[a]
movant cannot raise new issues for the first time in a reply brief because
consideration of such issues deprives the nonmoving party of its opportunity to
address the new arguments.”) (quotation marks and citation omitted); Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“[W]e have found issues to
be waived when they are raised for the first time in motions requesting
reconsideration or in replies to responses.”).
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Section U of MDOC Operating Procedure 03.04.108 provides in relevant part that
“[a] prisoner may receive copies of documents generated by the Department and
contained within his/her health record by making a specific, written request to the
appropriate health information manager or designee and paying the required perpage fee, as set forth in OP 03.04.108B ‘Prisoner Access to Medical Records.’”
See
http://www.michigan.gov/documents/corrections/PD_03_04_108_500056_7.pdf
(last visited October 7, 2016).
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Operating Procedure 3.04.108. Nonetheless, the Court cautions Plaintiff that
despite his having been granted in forma pauperis status, he is not exempt from
having to pay all costs incurred in obtaining discovery materials. See, e.g., Pasley,
2010 WL 3907497, at *1 (“Consequently, even if Plaintiff had sought to obtain his
medical records from Defendant Caruso pursuant to a proper discovery request, he
would still be required to pay the cost of copying the records.”); Smith v. Yarrow,
78 Fed.Appx. 529, 544 (6th Cir. 2003) (“A prisoner plaintiff proceeding in forma
pauperis may seek a waiver of certain pretrial filing fees, but there is no
constitutional or statutory requirement that the government or Defendant pay for an
indigent prisoner's discovery efforts.”). At his option, Plaintiff may therefore wish
to limit the scope of his request, e.g., by date range, medical provider, etc., in light
of these economic considerations.
In short, there is no indication that Plaintiff made any prior efforts to obtain
the medical records via either propounding to Defendants a discovery request or by
making a request through MDOC Operating Procedure 3.04.108. Instead, the
motion appears to be an effort by Plaintiff to obtain materials with this Court’s
involvement, and for free. Consequently, the motion is DENIED.
IT IS SO ORDERED.

Dated: October 14, 2016

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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I hereby certify that a copy of the foregoing document was sent to parties of record
on October 14, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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