Spencer v. Brott et al

Filing 62

ORDER granting in part and denying in part 53 Motion to Compel and granting 60 Motion for Continuance. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 5/13/2020. (EB)

CASE 0:17-cv-05220-DSD-TNL Document 62 Filed 05/13/20 Page 1 of 7

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

MARVIN SPENCER,

Case No. 17-cv-5035 (DSD/TNL)
Plaintiff,

v.
JOEL L. BROTT, Sheriff; DR. TODD
LEONARD, Physician; MICHELL SKROCH,
BSIU/CCHD Nursing Dir.; GWEN BLOSSOM
ENGLAND, CNP, RN; DR. DIANA
VANDERBEEK, Assistant Physician; CAPT.
TOM ZERWAS; SGT. TRAVIS LINDSTROM;
SGT. BRAD BOHN, Badge #3419; C/O JIM
ROURKE, Badge #3341; C/O ANNE HERBST,
Badge #3473; C/O JOHNNIE GILBERT; C/O
LISA SHORE, Badge #2163; C/O JOSHUA
JESBERG, Badge #3304; C/O CATHERINE
KOCH, Badge #2145; C/O OLUWASEUN
JIBOWU, Badge #3397; C/O DENISE COOK;
C/O TAMMY BOROS; C/O NICHOLAS
SIMON, Badge #3384; C/O LOGAN BARRETT,
Badge #3305; C/O YVONNE ADAMS, Badge
#1757; C/O AMY KAHLER, Badge #1901; C/O
DAN WORBER, Badge #3360; C/O LAURA
HOLMQUIST, Badge #1719; and C/O LORI
BENNETT, Badge #1409,
Defendants.

MARVIN SPENCER,

Case No. 17-cv-5220 (DSD/TNL)
Plaintiff,

v.
JOEL L. BROTT, Sheriff; DR. TODD
LEONARD, Physician; MICHELL SKROCH,
BSIU/CCHD Nursing Dir.; GWEN BLOSSOM
ENGLAND, CNP, RN; DR. DIANA
VANDERBEEK, Assistant Physician; CAPT.
TOM ZERWAS; SGT. ARIC HANSON, Badge
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CASE 0:17-cv-05220-DSD-TNL Document 62 Filed 05/13/20 Page 2 of 7

#3401; SGT. REBECCA BEAL, Badge #3418;
SGT. TRAVIS LINDSTROM, Badge #; SGT.
BRAD BOHN, Badge #3419; C/O JIM
ROURKE, Badge #3341; C/O ANNE HERBST,
Badge #3473; C/O JOHNNIE GILBERT, Badge
#; C/O LISA SHORE, Badge #2163; C/O
JOSHUA JESBERG, Badge #3304; C/O
CATHERINE KOCH, Badge #2145; C/O
OLUWASEUN JIBOWU, Badge #3397; C/O
DENISE COOK; C/O TAMMY BOROS, Badge
#; C/O NICHOLAS SIMON, Badge #3384; C/O
LOGAN BARRETT, Badge #3305; C/O
YVONNE ADAMS, Badge #1757; C/O AMY
KAHLER, Badge #1901; C/O DAN WORBER,
Badge #3360; C/O LAURA HOLMQUIST,
Badge #1719; C/O LORI BENNETT, Badge
#1409; C/O CHRISTOPHER HANSEN, Badge
#1074; C/O THERESA KLINGE, Badge #;
JENNIE R. THOMPSON, RN; GWENDOLYN
BLOSSOM ENGLAND, RN; ALYSSA
PFEIFER, RN; MICHELLE SKROCH, RN;
MINDI JOHNSON, CMA; BRIONY BOHN,
LPN; CASSANDRA JAMES, RN; and KAYLA
HERTENSTEIN, RN,
Defendants.

ORDER
This matter is before the Court on remaining 1 Defendants Todd Leonard, M.D., Michelle
Skroch, and Gwen Blossom England’s (collectively, “MEnD Defendants”) Motion to Compel
Medical Authorizations, ECF No. 93 in No. 17-cv-5035; ECF No. 53 in No. 17-cv-5220, and pro
se Plaintiff Marvin Spencer’s letter request for a continuance, ECF No. 100 in No. 17-cv-5035;
ECF No. 60 in No. 17-cv-5220.

1

As the Court has previously pointed out, Defendant Dr. Diana VanDerBeek was voluntarily dismissed from
Spencer I and II on May 2, 2019. ECF No. 54 in No. 17-cv-5035; ECF No. 34 in No. 17-cv-5220; see, e.g., ECF
Nos. 87 at 8 n.17 & 88 at 3 n.1 in No. 17-cv-5035; ECF Nos. 48 at 8 n.17 & 49 at 3 n.1 in No. 17-cv-5220. See Fed.
R. Civ. P. 41(a)(1)(A)(i).

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I. BACKGROUND
Plaintiff brings these two actions, referred to as Spencer I, No. 17-cv-5035, and Spencer II,
No. 17-cv-5220, for alleged violations of his constitutional rights based on deliberate indifference
to his medical needs while he was confined at the Sherburne County Jail in Minnesota. See
generally Spencer I Compl., ECF No. 1 in No. 17-cv-5035; Spencer II Compl., ECF No. 1 in No.
17-cv-5220. Plaintiff alleges that the MEnD Defendants failed to provide him with adequate care
and treatment, resulting in the loss of two toes and sight in his left eye.
II. MOTION TO COMPEL
In June 2019, the MEnD Defendants served Plaintiff with “a request for production of
documents . . . that asked [him] to sign a medical authorization,” thereby allowing the MEnD
Defendants to obtain his medical records. MEnD Defs.’ Mem. in Supp. at 3, ECF No. 96 in No.
17-cv-5035; ECF No. 56 in No. 17-cv-5220; see Decl. of Anthony J. Novak ¶ 2, ECF No. 97 in
No. 17-cv-5035; ECF No. 57 in 17-cv-5220; Ex. A to Novak Decl., ECF No. 97-1 in No. 17-cv5035; ECF No. 57-1 in No. 17-cv-5220. To date, Plaintiff has not responded to the MEnD
Defendants’ request. Accordingly, the MEnD Defendants have moved for an order compelling
Plaintiff to provide authorization for the release of his medical records held by Sherburne County
or allowing Sherburne County to provide a copy of Plaintiff’s medical records to them. 2 See
generally Fed. R. Civ. P. 37. Plaintiff has not responded to the motion. 3
In general, “[p]arties may obtain discovery regarding any nonprivileged matter that is

2

In the future, the Court strongly encourages the MEnD Defendants to engage in a more robust meet-and-confer
process. In their meet-and-confer statement, the MEnD Defendants blanketly state that because “Plaintiff is
incarcerated, . . . meeting and conferring [is] impracticable.” ECF No. 95 at 1 in No. 17-cv-5035; ECF No. 55 at 1
in No. 17-cv-5220. At minimum, the MEnD Defendants could have—and should have—attempted to meet and
confer with Plaintiff via letter.
3
Any response was due 10 days after service of the motion. See Pretrial Sch. Order ¶ 3, ECF No. 89 in No. 17-cv5035; ECF No. 51 in 17-cv-5220. Plaintiff’s letter request, received approximately 30 days after the MEnD
Defendants’ motion to compel was filed, does not mention the motion.

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relevant to any party’s claim or defense and proportional to the needs of the case . . . .” Fed. R.
Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence
to be discoverable.” Id. Although relevance is construed broadly at the discovery stage, “[s]ome
threshold showing of relevance must be made before parties are required to open wide the doors
of discovery and to produce a variety of information which does not reasonably bear upon the
issues in the case.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992); see Heilman v.
Waldron, 287 F.R.D. 467, 473 (D. Minn. 2012) (“Relevance is construed broadly at the discovery
stage.”). This Court “has very wide discretion in handling pretrial discovery.” Hill v. Southwest
Energy Co., 858 F.3d 481, 484 (8th Cir. 2017) (quotation omitted).
Plaintiff has placed his physical condition at issue by alleging that the MEnD Defendants
failed to provide adequate care and treatment for his medical needs while he was at the Sherburne
County Jail. Clark v. Roy, No. 15-cv-2778 (SRN/HB), 2016 WL 11669528, at *1 (D. Minn. Sept.
28, 2016). Having placed his physical condition at issue, Plaintiff’s medical records from
Sherburne County are plainly relevant. Id.; see Schoffstall v. Henderson, 223 F.3d 818, 823 (8th
Cir. 2000) (medical records relevant when plaintiff places medical condition at issue).
Therefore, the Court will grant the MEnD Defendants’ motion in part and order Plaintiff
to sign an authorization for the release of his medical records from Sherburne County and return
the signed authorization to the MEnD Defendants. Within seven days from the date of this
Order, the MEnD Defendants shall send a new authorization to Plaintiff along with a
stamped, self-addressed envelope for returning the signed authorization. The authorization
may only seek the release of medical records from Sherburne County. Within seven days
from his receipt of the authorization, Plaintiff shall sign and date the authorization, and
return it to the MEnD Defendants. As stated below, Plaintiff should bear in mind that a

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failure to comply with this Order could result in dismissal of these actions. See Fed. R. Civ.
P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.”). To the extent the MEnD
Defendants seek an order allowing Sherburne County to provide copies of Plaintiff’s medical
records directly to them, the motion is denied.
III. LETTER REQUEST FOR CONTINUANCE
Plaintiff requests a continuance of these matters 4 because the facility in which he is
currently confined “is on lock down” due to the COVID-19 pandemic and he does not have access
to his legal materials or the law library. Ltr. Request at 1, ECF No. 100 in No. 17-cv-5035; ECF
No. 60 in 17-cv-5220. In support of his request, Plaintiff has attached a letter from the unit
manager at the facility. See ECF No. 101 in No. 17-cv-5035; ECF No. 61 in No. 17-cv-5220.
Beginning on March 13, 2020, and continuing thereafter, the Honorable John R. Tunheim,
Chief District Judge for the United States District Court for the District of Minnesota, has issued
a series of General Orders in connection with the COVID-19 pandemic, available at
https://www.mnd.uscourts.gov/coronavirus-covid-19-guidance.

These

General

Orders

acknowledge, among other things, that (1) a national emergency has been declared by the President
of the United States of America in response to COVID-19; (2) a peacetime emergency has been
declared by the Governor of the State of Minnesota in response to COVID-19; (3) a stay-at-home
order has been implemented by the Governor of the State of Minnesota in response to COVID-19;
and (4) local detention facilities have implemented several COVID-19 related restrictions. See,
e.g., In re: Updated Guidance to Court Operations Under the Exigent Circumstances Created by
COVID-19, Gen. Order No. 12 (D. Minn. May 8, 2020).

4

While Plaintiff’s letter request refers only to Spencer I, the Court has construed it as applying to Spencer II as well.
See Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004).

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For the reasons addressed in these General Orders, the well-documented concerns
regarding COVID-19, and the specific conditions of Plaintiff’s facility, the Court finds good cause
to grant Plaintiff’s request for a continuance. The Court will continue existing dates in the Pretrial
Scheduling by 90 days. An Amended Pretrial Scheduling Order shall issue.
IV. ORDER
Based upon the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. The MEnD Defendants’ Motion to Compel Medical Authorizations, ECF No. 93 in
No. 17-cv-5035; ECF No. 53 in No. 17-cv-5220, is GRANTED IN PART and
DENIED IN PART.
2. Within seven days from the date of this Order, the MEnD Defendants shall send
a new authorization to Plaintiff along with a stamped, self-addressed envelope for
returning the signed authorization. The authorization may only seek the release of
medical records from Sherburne County.
3. Within seven days from his receipt of the authorization, Plaintiff shall sign and
date the authorization, and return it to the MEnD Defendants.
4. Each party shall bear its own costs and attorney fees.
37(a)(5)(C).

See Fed. R. Civ. P.

5. Plaintiff’s letter request, ECF No. 100 in 17-cv-5035; ECF No. 60 in No. 17-cv5220, is GRANTED.
6. An Amended Pretrial Scheduling Order shall issue.
7. All prior consistent orders remain in full force and effect.

[Continued on next page.]

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8. Failure to comply with any provision of this Order or any other prior consistent
Order shall subject the non-complying party, non-complying counsel and/or the
party such counsel represents to any and all appropriate remedies, sanctions and the
like, including without limitation: assessment of costs, fines and attorneys’ fees and
disbursements; waiver of rights to object; exclusion or limitation of witnesses,
testimony, exhibits and other evidence; striking of pleadings; complete or partial
dismissal with prejudice; entry of whole or partial default judgment; and/or any
other relief that this Court may from time to time deem appropriate.

Date: May

13

, 2020

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota

Spencer v. Brott et al.
Case No. 17-cv-5035 (DSD/TNL)
Spencer v. Brott et al.
Case No. 17-cv-5220 (DSD/TNL)

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