Burke #148917 v. Lawrence et al

Filing 33

MEMORANDUM OPINION ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELIJAH BURKE, # 148917,

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)
Plaintiff,
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v.
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)
DEBORAH LAWRENCE, et al.,
)
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Defendants.
)
____________________________________)

Case No. 1:11-cv-1044
Honorable Robert Holmes Bell

MEMORANDUM OPINION

This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
Plaintiff’s action was dismissed on initial screening for failure to state a claim upon which relief may
be granted. On appeal, the Sixth Circuit Court of Appeals determined that plaintiff stated a viable
claim for retaliation. As summarized by the appellate panel, plaintiff’s claim is that defendants
violated his First and Fourteenth Amendment rights “by suspending and terminating him from his
prison job and removing him from the re-hiring pool in retaliation for his filing a complaint alleging
that the defendants had violated disciplinary procedures.” (Op. at 2, docket # 12). By reason of a
subsequent opinion and order by District Judge Robert Holmes Bell (docket #s 14, 15), the
retaliation claim against all defendants except defendant D. Lawrence was dismissed. Significantly,
the court also dismissed plaintiff’s claim for due-process, conspiracy, intentional infliction of
emotional distress, and gross negligence. (Op. at 14, docket # 14). Process was served on defendant
Lawrence alone, limited to plaintiff’s First Amendment retaliation claim.

Presently pending before the court is plaintiff’s motion to quash a subpoena served
by counsel for defendant Lawrence on the Michigan Department of Corrections, seeking production
of all plaintiff’s medical and psychological records. Defendant has filed a lengthy brief (docket #
30) in opposition to the motion, arguing that plaintiff’s mental and psychological conditions have
been placed at issue because of various allegations in the complaint. Upon review, the court
determines that defendant’s position is not meritorious and that plaintiff’s medical records are not
relevant or discoverable under the standards established by Fed. R. Civ. P. 26(b)(1).

Discussion
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.
Therefore, in order to be discoverable, information must be both non-privileged and relevant to a
claim or defense. Plaintiff’s motion to quash raises questions of both privilege and relevance.
In federal-question cases, questions of privilege are governed by the federal common
law. FED. R. EVID. 501. Federal law does not recognize an evidentiary privilege for communications
between doctor and patient or for general medical records. See Hancock v. Dodson, 958 F.2d 1367
(6th Cir. 1992). In 1996, however, the Supreme Court held that confidential communications
between a licensed psychotherapist and patients in the course of diagnosis or treatment are protected
from compelled disclosure under Evidence Rule 501. Jaffee v. Redmond, 518 U.S. 1, 15 (1996).
Defendant’s broad subpoena (and the authorization form tendered by defense counsel) cover both
general medical records and psychiatric records, thus calling for both privileged and non-privileged
medical records.

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The federal courts hold that a litigant waives the psychotherapist-patient privilege
when, by seeking damages for emotional distress, he places his psychological state at issue in the
litigation. See Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006). The courts have
struggled, however, in defining the precise circumstances in which a plaintiff may be deemed to have
placed his psychological condition at issue.
The courts have generally adopted three divergent approaches to this question. The
so-called “narrow approach” holds that a patient waives the privilege only when he puts the
substance of the advice from or communication with the psychotherapist directly at issue in the suit.
See Koch v. Cox, 489 F.3d 384, 389 (D.C. Cir. 2007). Courts following this approach find a waiver
of the privilege only where the emotional distress claims are “severe,” where the plaintiff relies on
communications with the therapist as part of the case itself, or where the plaintiff intends to offer
expert testimony on a claim of emotional distress. Id. at 390; see, e.g., St. John v. Napolitano, 274
F.R.D. 12, 17-19 (D.D.C. 2011). At the other end of the spectrum, the broad approach holds that
a plaintiff puts his mental condition at issue simply by making a claim for emotional distress
damages. See Koch, 489 F.3d at 390. The “middle ground approach” -- which has become the
majority view -- holds that where a plaintiff “merely alleges ‘garden-variety’ emotional distress and
neither alleges a separate tort for the distress, any specific psychiatric injury or disorder, or unusually
severe distress, that plaintiff has not placed his/her mental condition at issue to justify a waiver of
the psychotherapist-patient privilege.” Koch, 49 F.3d at 390. This approach requires a careful
evaluation of the kind of emotional distress claimed before finding a waiver. See, e.g., Awalt v.
Marketti, 287 F.R.D. 407, 418 (N.D. Ill. 2012). The motivating principle of the majority rule is a
concern for fairness -- a party should not be able to inject his psychological treatment, condition, or
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symptoms into a case and expect to be able to prevent discovery of information relevant to those
issues. Id. at 418-19.
In the absence of binding Sixth Circuit authority, this court will follow the majority
rule, which precludes discovery where a plaintiff merely alleges a garden-variety emotional distress
claim, that is, claims limited to emotional distress damages that “naturally flow from the defendant’s
alleged misconduct.” Awalt, 287 F.R.D. at 418.
Application of the majority approach to the allegations in plaintiff’s complaint results
in a finding that plaintiff has not placed his mental condition at issue. Plaintiff originally alleged a
claim for the intentional infliction of emotional distress. Had this claim not been dismissed,
plaintiff’s mental condition certainly would have been at issue in this case. That claim, however,
is no longer part of this litigation. The only remaining claim is a First Amendment retaliation claim
involving plaintiff’s loss of a prison job. Plaintiff does not directly assert a claim for emotional
distress damages arising from the retaliation claim. Even if he did, however, such a claim would be
precluded by federal law. The Prison Litigation Reform Act prohibits a prisoner from bringing a
civil action “for mental or emotional injuries suffered while in custody without a prior showing of
physical injury.” 42 U.S.C. § 1997e(e). Hence, the only remaining claim in the case -- First
Amendment retaliation resulting in the loss of a prison job but not involving any physical injury -cannot possibly result in the award of emotional distress damages. See, e.g., Pearson v. Welborn,
471 F.3d 732, 744 (7th Cir. 2006) (claim for emotional distress resulting from retaliatory conduct
properly dismissed under § 1997e(e) in the absence of an allegation of physical injury). Hence, there
is no claim presently pending before the court that might be deemed a waiver of a psychotherapistpatient privilege.
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Plaintiff’s general medical records are not subject to a federally recognized privilege.
Nevertheless, in order to be discoverable, these records must be relevant to some claim or defense
in the case. FED. R. CIV. P. 26(b)(1). Despite defendant’s strenuous arguments to the contrary,
plaintiff’s claim for “compensatory” damages does not remotely suggest a claim for personal injuries
of some sort. Plaintiff’s First Amendment retaliation claim features no aspect of personal injury or
other physical harm to plaintiff. Plaintiff’s medical records are plainly irrelevant to this case.

Conclusion
For the foregoing reasons, plaintiff’s motion to quash will be granted.

Dated: June 3, 2013

/s/ Joseph G. Scoville
United States Magistrate Judge

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