Toney v. Hakala et al

Filing 183

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion for an Order Permitting Photograph of Plaintiff 170 is DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion for Extension of Time in Which to Disclose Expert Opinion 171 and Motion to Compel and Extension of Time 178 are GRANTED as follows: Defendants shall provide Plaintiffs designated medical expert, Dr. Steven R. Graboff, with Plaintiff's medical records, including copies of his x-rays and DVD/CD recordings of his MRI scans images, within seven (7) days of the date of this order. Plaintiff is granted an additional thirty (30) days from the date Defendants produce Plaintiff's medical records to provide a medical opinion on his care and treatment while confined. IT IS FURTHER ORDERED that Defendants shall have an opportunity to review Dr. Graboff's report and depose him. Defendants shall be permitted to supplement their pending motion for summary judgment in light of Dr. Grabroff's medical opinion. Signed by District Judge John A. Ross on 10/16/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES TONEY,
Plaintiff,
vs.
MICHAEL HAKALA, et al.,
Defendants.

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Case No. 4:10-CV-2056-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the following motions filed by Plaintiff: Motion for an
Order Permitting Photograph of Plaintiff [ECF No. 170]; Motion for Extension of Time in
Which to Disclose Expert Opinion [ECF No. 171]; and Motion to Compel and Extension of
Time [ECF No. 178].
With respect to Plaintiff’s Motion for an Order Permitting Photograph, Plaintiff seeks a
court order directed specifically to Terry Russell, Warden of the Eastern Diagnostic Correctional
Center, allowing him to obtain photographs of himself without a shirt and in gym shorts. Plaintiff
contends these photographs will be used as evidence of his injuries and disabilities and
demonstrate his serious medical needs. Plaintiff states that current prison rules and regulations
permit the taking of photographs of offenders, but only in state gray canvas pants and shirts.
(Exhibit 1, Doc. No. 170-1) Defendants filed no response to the motion. Because the taking of
such photographs would be inconsistent with prison rules and regulations, and because such
photographs would not be probative in any event, this motion will be denied.
In support of his Motion for Extension of Time in Which to Disclose Expert Opinion and
Motion to Compel and Extension of Time, Plaintiff states that he has retained a medical expert,

Steven R. Graboff, M.D., and that to prepare his medical opinion, Dr. Graboff must review
Plaintiff’s medical records, including his X-rays and MRI scans. Plaintiff seeks an order from the
Court directing Defendants to produce all X-ray and MRI images to his medical expert, Dr.
Graboff, and an additional 30 days from the date those images, as well as Plaintiff’s complete
medical records, are produced for Dr. Graboff to review them and render his opinion, and for
Plaintiff to then disclose Dr. Graboff’s opinion. Plaintiff has also renewed his motion for an
order allowing him to take photographs of his injuries.
Defendants oppose Plaintiff’s motion for extension of time on the grounds that Plaintiff
received all of his current medical information well in advance of the September 18, 2012
discovery deadline, and thus had ample time to retain and disclose a medical expert. Because he
failed to do so, his request for extension of time should be denied. Defendants further argue that
extending the discovery deadline without extending the summary judgment deadline would
prejudice them,1 and that if the Court was to extend the discovery deadline, Defendants should
be provided an opportunity to review the report, depose Dr. Graboff, and consider retaining their
own medical expert.
Consistent with this Court’s August 24, 2012 Order directing Defendants to provide
copies of Plaintiff’s x-rays and MRI scans to Plaintiff’s medical expert, if one was designated,
the Court will grant Plaintiff’s motions to compel and for extension of time. The Court will also
allow Defendants an opportunity to review Dr. Graboff’s report and depose him, and to
supplement their Motion for Summary Judgment if they wish. Plaintiff’s renewed request for an
order allowing him to take photographs of himself will be denied.

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Defendants filed their motion for summary judgment on October 1, 2012. (Doc No. 173)
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Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for an Order Permitting Photograph
of Plaintiff [170] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time in Which to
Disclose Expert Opinion [171] and Motion to Compel and Extension of Time [178] are
GRANTED as follows:
Defendants shall provide Plaintiff’s designated medical expert, Dr. Steven R. Graboff,
with Plaintiff’s medical records, including copies of his x-rays and DVD/CD recordings of his
MRI scans images, within seven (7) days of the date of this order.
Plaintiff is granted an additional thirty (30) days from the date Defendants produce
Plaintiff’s medical records to provide a medical opinion on his care and treatment while
confined.
IT IS FURTHER ORDERED that Defendants shall have an opportunity to review Dr.
Graboff’s report and depose him. Defendants shall be permitted to supplement their pending
motion for summary judgment in light of Dr. Grabroff’s medical opinion.

Dated this 16th day of October, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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