Townsend v. Rhodes et al

Filing 106

OPINION and ORDER DENYING PLAINTIFF'S 73 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD TOWNSEND,
Plaintiff,
Case No. 4:14-CV-10411
Judge Terrence G. Berg
Magistrate Judge Anthony P. Patti

v.

KAREN RHODES,
VICKI CARLSON,
LINDA HAASE and
MARCIA O’CONNELL,
Defendants.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S AUGUST 13, 2015
MOTION TO COMPEL DISCOVERY (DE 73)
I.

OPINION
A.

Introduction

On January 27, 2014, while incarcerated at the G. Robert Cotton
Correctional Facility (JCF) in Jackson, Michigan, Plaintiff filed the instant lawsuit
against several defendants, wherein he explains he is a type 2 insulin dependent
diabetic. (DE 1 ¶ 2.) Plaintiff later clarified that he is a type 1 insulin dependent
diabetic. (DE 42.) In sum, Plaintiff’s complaint alleges deliberate indifference to
a serious medical need in violation of the Eighth Amendment based in large part

on his prescriptions for insulin, which have allegedly varied between Humilin
Insulins (70/30, R and N/NPH) and Novolin Insulins (N and R). (See DE 1 at ¶¶ 322, 29.)
At this point, the only remaining defendant is Defendant Rhodes. (See DE
45, DE 85.) Currently pending in this case is Defendant Rhodes’s motion for
summary judgment, which is accompanied by portions of Plaintiff’s medical
records and regarding which a response and reply have been filed. (DEs 59, 61,
98, 99.) Also pending before the Court is Plaintiff’s August 13, 2015 motion to
compel discovery, regarding which a response and reply have been filed. (DEs 73,
78, 81.) Plaintiff’s discovery motion seeks to “inspect, examine, copy his medical,
dental and optometry records which are in the custody, possession or control of
Health Service Manager, Betsy Spreeman at Lakeland Correctional Facility (LCF)
. . . .” (DE 73 at 1; see also DE 73 at 2.)
B.

Plaintiff’s efforts to obtain his medical records

Plaintiff’s motion practice has been prolific, among which have been seven
motions related to discovery. (DEs 13, 14, 46, 73, 89, 90, 91.)1 The Court has

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 Plaintiff

has filed thirteen (13) other motions, including five motions for extension
(DEs 6, 30, 75, 86, 87), one motion for reconsideration (DE 12), two motions to
appoint counsel (DEs 15, 74), one motion for leave to file a supplemental
complaint (DE 37), one motion for leave to correct a mistake in his complaint (DE
42), one motion to dismiss his complaint as to certain defendants (DE 44) and two
motions for injunctive relief (DEs 57, 63).

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ruled upon all but one of these discovery motions, and, in some cases, has
commented upon Plaintiff’s efforts to obtain his medical records. For example:


On February 13, 2015, I entered an order (DE 34) granting in
part Plaintiff’s first motion to compel (DE 13) and denying
without prejudice Plaintiff’s second motion to compel (DE 14).
This order acknowledged the March 10, 2014 response from the
Jackson Health Care Health Information Manager to Plaintiff’s
kite for his medical records. (DE 34 at 3, DE 13 at 4.)



On April 20, 2015, I entered an order (DE 47) granting
Plaintiff’s April 13, 2015 motion for subpoena (DE 46), which
sought examination and inspection of his medical records. By
my order, the Clerk was directed to issue the subpoena and send
it to Plaintiff, who was to complete the form and ensure proper
service. (DE 47 at 5.)



On November 9, 2015, I entered an order (DE 94) denying
without prejudice plaintiff’s October 21, 2015 motions for
discovery (DE 90) and for interrogation of Defendant Karen
Rhodes (DE 91).



On February 4, 2016, I entered an order (DE 105) denying
Plaintiff’s October 21, 2015 motion for judgment (DE 89).2
This order cites my October 14, 2014 order’s reference to the
more than 800 pages of medical records and Rule 56(d). (DE
105, DE 88; see also DE 61.)

In addition, Plaintiff’s medical records were the subject of Plaintiff’s May 26, 2015
response to the MDOC Defendants’ (Carlson, Haase and O’Connell) May 7, 2015
motion to stay discovery. (DEs 48, 50.) My May 29, 2015 order denied in part the
MDOC Defendants’ motion to stay discovery, noting in part: “Plaintiff indicates a

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 This

motion was originally terminated on November 12, 2015. (DE 95.)
However, it was stricken as improvidently granted on February 4, 2016. (DE 105.)  
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need to continue limited discovery with respect to his medical records and the very
log books upon which Defendants rely in support of their argument that they had
no involvement in the treatment of this particular prisoner.” (DE 51 at 3.)3
C.

Plaintiff’s pending motion to compel discovery

In his pending August 13, 2015 motion to compel discovery, which he filed
pursuant to Fed. Rules Civ. P. 34(b) and 37(a), Plaintiff claims to have twice
subpoenaed someone in LCF health services to inspect, examine and copy his
entire medical record, to no avail. (DE 73 at 1-2.) At the time he filed this motion,
Plaintiff was incarcerated at LCF. (See DE 73 at 2.) Plaintiff has since been
transferred to the Gus Harrison Correctional Facility (ARF); therefore, at this
point, the Court assumes this motion is directed toward the records custodian at
ARF, Plaintiff’s current place of incarceration.
MDOC Defendants Carlson, Haase and O’Connell, who have since been
dismissed from this case, filed a response on August 24, 2015. (DE 78.) While
they do not oppose Plaintiff obtaining his own medical records, they do “oppose
having to pay for the copies or to allow Plaintiff to inspect the original records.”
(DE 78 at 2.)

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The MDOC Defendants objected to my order, and Plaintiff responded to those
objections. (DEs 52, 54.) 
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Plaintiff filed a reply on September 11, 2015, wherein he takes issue with
LCF Health Service Manager Betsy Spreeman and/or LCF Health Information
Manager Connie Lester’s alleged failure to comply with the subpoenas. (DE 81.)4
D.

Analysis

Upon consideration, Plaintiff’s August 13, 2015 motion to compel discovery
is denied. (DE 73.) First, it appears to the Court that Plaintiff is finally in
possession of at least some of his medical records. True, his instant motion to
compel was filed two weeks after Defendant Rhodes filed Plaintiff’s select medical
records (DE 60) under seal in conjunction with her July 28, 2015 motion for
summary judgment (DE 59); however, the rules require parties to provide copies of
matters they file with the Court to opposing parties or their counsel. Thus, the
Court presumes Defendant Rhodes served a copy of the more than 800 pages of
select medical records upon Plaintiff when she filed her dispositive motion.
Moreover, Plaintiff has since filed a response (DE 98) to Defendant
Rhodes’s dispositive motion (DE 73).5 Plaintiff’s November 23, 2015 three page

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 After

Plaintiff filed his reply, I entered a show cause order. (DE 96.) Non-parties
Roberts-Spreeman and Lester filed a response on November 24, 2015, in which
they allege, under oath, that neither was served with either subpoena. (DE 97 at 2,
97-2 ¶ 3, 97-3 ¶ 3.) On January 19, 2016, I entered an order discharging nonparties Roberts-Spreeman and Lester’s obligations under the Court’s show cause
order. (See DE 100.)

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Plaintiff’s November 23, 2015 response consists of a 3 page motion, which is not
signed under penalty of perjury (DE 98 at 1-3), and a 22 page affidavit, which is
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response and twenty-two page affidavit contain numerous citations to medical
records. (See DE 98 at 1-3, 4-25.) While Defendant Rhodes’s references to the
medical record (Exhibit B) differ from Plaintiff’s references to the medical record
(i.e., Exhibits 1-19), the particularity with which Plaintiff cites to the medical
record is consistent with possession of or access to the material to which he refers.
(Compare DE 59, DE 61, DE 98.)
Second, given Plaintiff’s above-described attempts to inspect, examine and
copy his medical records, and given that Defendant Rhodes’s Fed. R. Civ. P. 56
motion for summary judgment remains pending, I observe that Plaintiff’s instant
motion to compel and his related reply do not constitute proper assertions by
Plaintiff that the facts he needs to adequately respond are presently unavailable to
him. To be sure, Plaintiff asserted on October 21, 2015 that he needed to inspect,
examine and copy his medical records to respond to Defendant Rhodes’s July 28,
2015 motion for summary judgment. (See, i.e., DE 89 at 2 ¶ 2.) However, neither
Plaintiff’s instant August 13, 2015 motion (DE 73) nor his related September 11,

signed under penalty of perjury (DE 98 at 4-25). The affidavit describes the events
of 2009 – January 27, 2014 (DE 98 at 4 ¶ 3 – DE 98 at 12 ¶ 32), then proceeds to
respond to various paragraphs of Rhodes’s July 14, 2015 affidavit (DE 59-2, DE
98 at 12 ¶ 33 – DE 98 at 25 ¶ 58) and concludes by explaining what has happened
since he stopped taking Humulin insulin, noting that he is taking Novolin insulin as
prescribed, and describing his damages from lack of insulin (see DE 98 at 25 ¶¶
59-60). Therefore, it is not interpreted as asserting under Fed. R. Civ. P. 56(d) that
he is without the information he needs to respond to Defendant Rhodes’s summary
judgment motion (DE 59).   
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2015 reply (DE 81) constitutes a showing “by affidavit or declaration that, for
specified reasons, [Plaintiff] cannot present facts essential to justify [his]
opposition . . . .” Fed. R. Civ. P. 56(d). The motion generally alleges that
Spreeman’s failure to comply with the subpoena has denied him access to this
Court and also alleges that this Court “should not grant summary judgment against
a party who has not had an opportunity to pursue discovery or whose discovery
request has not been answered.” (DE 73 at 2). The reply, while signed under
penalty of perjury, does not specify why, in the absence of medical records,
Plaintiff cannot present facts essential to justify his opposition to Defendant
Rhodes’s motion for summary judgment (see DE 81 at 1-2).6 In other words,
Plaintiff’s motion and related reply do not convince this Court that it should put the
disposition of Dr. Rhodes’s pending dispositive motion on hold, and his response
to the summary judgment motion convinces the Court that he has obtained the
records he sought and has the information necessary to respond.
II.

ORDER
Accordingly, Plaintiff’s August 13, 2015 motion to compel discovery (DE

73) is DENIED. Defendant Rhodes’s July 28, 2015 motion for summary
judgment (DE 59) will be addressed under separate cover.

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 Based

upon the above ruling, this order omits discussion of the copying cost issue
raised in the August 24, 2015 response filed by the now-dismissed MDOC
Defendants. (See DE 78 at 2.) 
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IT IS SO ORDERED.

Dated: February 4, 2016

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on February 4, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti 

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