Ardis v. Jinhal et al
ORDER Granting Defendant Jindal's 44 Motion to Seal; Denying Plaintiff's 50 Motion to Compel; Denying Plaintiff 51 Motion for the Court to Demand that MDOC Health Care Give him a complete copy of his Medical File; Granting Motion for Extension of Time 49 --Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KENNETH FOSTER ARDIS,
Case No. 2:18-cv-13537
District Judge Linda V. Parker
Magistrate Judge Anthony P. Patti
ROSILYN JINDAL and
TAMMRA S. ROTHHAAR,
ORDER GRANTING DEFENDANT JINDAL’S MOTION TO SEAL
EXHIBIT A TO HER MOTION FOR SUMMARY JUDGMENT (ECF 44),
GRANTING PLAINTIFF’S MOTION FOR TIME EXTENSION (ECF 49),
DENYING PLAINTIFF’S MOTION FOR AN ORDER COMPELLING
DISCOVERY (ECF 50), & DENYING PLAINTIFF’S MOTION FOR THE
COURT TO DEMAND THAT MDOC HEALTH CARE GIVE HIM A
COMPLETE COPY OF HIS MEDICAL FILE (ECF 51)
There are two pending dispositive motions (ECFs 41, 45), which
will be addressed under separate cover.
Kenneth Foster Ardis initiated this lawsuit in the Western District of
Michigan. See Case No. 2:18−cv−00169−RJJ−TPG (W.D. Mich.). On October
25, 2018, he filed an amended complaint, which named two Defendants,
“(Unknown) Jinhal,” i.e., Rosilyn Jindal, P.A., and “Nurse Jane Doe,” i.e., Tammra
Rothhaar. (ECF 2 ¶¶ 6, 7; ECFs 20, 39.) The case was transferred to this district
on November 9, 2018.
Currently pending before the Court are two dispositive motions: (1) MDOC
Defendant Rothhaar’s motion for summary judgment (ECF 41), regarding which
Plaintiff filed a timely response (ECFs 42, 43); and, (2) Defendant Jindal’s motion
for summary judgment (ECF 45), regarding which Plaintiff’s response was due on
September 20, 2019 (ECF 47). These motions, each of which raises both
exhaustion and substantive issues, will be addressed under separate cover. (ECF
41 at 5, ECF 45 at 8.)
Meanwhile, Defendant Jindal’s motion to seal (ECF 44) is
Jindal is not a state employee but is allegedly employed by Corizon Health.
(ECF 45 at 22, ECF 41 at 7.) On August 16, 2019, Defendant Jindal filed a motion
to seal Exhibit A to her motion for summary judgment. (ECF 44; see also ECF 451.) Concurrently, Defendant Jindal filed under seal 41-pages of Plaintiff’s medical
records. (ECF 46.)
Having described the documents at issue as “Relevant Portions of Plaintiff’s
MDOC Medical Record,” (ECF 45-1), and having cited the Health Insurance
Portability and Accountability Act (HIPAA), Defendant Jindal’s motion to seal
(ECF 44) is GRANTED, the Court finding that the documents in question (ECF
46) are replete with protected health information (PHI). See 45 C.F.R. § 160.103.
Plaintiff has filed an affidavit concerning Defendant Jindal (ECF
48), and Plaintiff’s motion for time extension (ECF 49) has been
On September 16, 2019, Plaintiff filed an affidavit that, at least in part,
responded to Defendant Jindal’s affidavit in support of her motion for summary
judgment. (ECF 48 [Pl.’s Affid.], ECF 45-2 [Jindal Affid.].) Among other things,
Plaintiff attests that the documents Jindal provided “are inadequate and/or lacking
in their entirety[.]” (ECF 48 ¶ 7.) Here, the Court assumes that Plaintiff is
referring to the various attachments to Jindal’s August 16, 2019 dispositive motion
(ECFs 44, 45-1, 45-3) and/or the fact that he had yet to receive Jindal’s September
20, 2019 discovery responses (ECF 50 at 6-10).
At the same time, Plaintiff filed a motion for an extension of time within
which to file a response to, presumably, Defendant Jindal’s motion for summary
judgment. (ECFs 48, 49.) On October 4, 2019, I extended Plaintiff’s response
deadline to October 21, 2019. Plaintiff also claims that the matters sought by his
discovery requests are “needed for a complete and proper response[,]” and “vital
for a proper and equitable response.” (ECF 49 ¶¶ 2, 5.) Clearly, Plaintiff intends
to invoke Fed. R. Civ. P. 56(d) (“When Facts Are Unavailable to the
Nonmovant.”).1 However, for the reasons stated below, Plaintiff’s motion to
compel discovery (ECF 50) will be denied.
“If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or
Plaintiff’s motion for an order compelling discovery (ECF 50) is
denied as filed.
By way of background, on September 20, 2019, Defendant Jindal served
responses to 14 discovery requests. (See ECF 50 at 6-10.) In each case, Defendant
Jindal objected on the basis that serving discovery on September 11, 2019 was not
timely under this Court’s initial scheduling order, which set a discovery cut-off of
October 10, 2019. (Id.; ECF 26.)2 Additionally, as to 12 of the requests,
Defendant Jindal responded that “there is no document responsive [sic] containing
the requested information[,]” and, as to 2 of the requests, Defendant Jindal
objected on the basis that “Defendants are not required to fund Plaintiff’s
discovery efforts.” (ECF 50 at 6-10.)
declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R.
Civ. P. 56(d).
This Court’s initial scheduling order expressly provided that: “Discovery must be
completed by the discovery cut-off date, after which, this Court will not order
discovery to take place. All discovery shall be served sufficiently in advance of
the discovery cutoff to allow the opposing party adequate time to serve responses
under the Federal Rules of Civil Procedure prior to the close of discovery. Parties
may agree to extend the deadlines by submitting a joint motion with a proposed
order to the Court for consideration. The extension should not affect the other
scheduled dates.” (DE 26 at 4.) Parties have 30 days to serve answers, responses
or objections to interrogatories and requests for production of documents. See Fed.
Rules Civ. P. 33(b)(2), 34(b)(2)(A). Thus, interrogatories and/or requests for
production of documents should have been served by Tuesday, September 10,
2019. Plaintiff himself states that he submitted his written request on September
11, 2019. (ECF 50 at 3.)
On September 30, 2019, Plaintiff filed a motion for an order compelling
discovery. (ECF 50 at 1-4.) Upon consideration, Plaintiff’s motion is DENIED.
The Federal Rules of Civil Procedure contain provisions for answers, responses,
and objections to discovery requests. See, e.g., Fed. Rules Civ. P. 33(b), 34(b)(2).
Plaintiff seeks an order compelling Defendant Jindal and others “to produce for
inspection and copying” documents responsive to the 14 requests, but Plaintiff
does not explain what is errant about Defendant Jindal’s attached responses.
Moreover, as to the results of any laboratory testing (Request No. 8) and a
complete copy of Plaintiff’s medical file (Request No 14), Defendant Jindal
explained both that the cost for 357 pages of copies at $0.25/page would be $89.25
and that she “provided the relevant medical records with her Motion for Summary
Judgment . . . .” (ECF 50 at 9.) Thus, the Court will not presume, as Plaintiff
seems to ask it to do, that Defendants will be barred from using any materials they
have not provided to Plaintiff. (ECF 50 at 4.)
Plaintiff’s motion for the Court to demand that MDOC Health
Care give him a complete copy of his medical file (ECF 51) is
On October 3, 2019, Plaintiff filed a motion for the Court to demand that
MDOC health care give him a complete copy of his medical file. (ECF 51.) The
Court has no doubt that Plaintiff’s medical file contains discoverable information,
and the Court understands Plaintiff’s efforts to “help place this claim in the right
direction[,]” and to “provide the right information in this claim[.]” However,
“under the American rule, each party bears its own costs in litigation.” Walter v.
Fiorenzo, 840 F.2d 427, 436 (7th Cir. 1988). Moreover, even if Plaintiff is
indigent, the MDOC Policy Directive on Prisoner Funds provides that “[f]unds
shall be loaned to prisoners who lack sufficient funds in their trust account to
purchase . . . [p]hotocopies of legal documents and notary services as set forth in
PD 05.03.116 ‘Prisoners’ Access to the Courts’.” MDOC 04.02.105 (“Prisoner
Funds”), effective Jan. 1, 2010 ¶ Z(4). Finally, MDOC Health Care is a non-party;
therefore, it is not properly before this Court. Accordingly, Plaintiff’s motion for
the Court to demand that MDOC Health Care give him a complete copy of his
medical file (ECF 50) is DENIED.
IT IS SO ORDERED.
Dated: October 10, 2019
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 10, 2019 , electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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