Villaverde v. Aranas et al

Filing 51

ORDER. IT IS ORDERED that 46 Plaintiff's Motion for an Order Compelling Discovery Per Federal Rule of Civil Procedure 37(a) is GRANTED in part and DENIED in Part. IT IS FURTHER ORDERED that Plaintiff shall be provided one (1) hour of tim e to review his medical records again. This review shall occur within fifteen (15) days of the date of this Order. IT IS FURTHER ORDERED that the due date for motions for summary judgment shall be 1/22/2021. Responses due by 2/24/2021. Replies due by 3/16/2021. See Order for Details. Signed by Magistrate Judge Elayna J. Youchah on 11/20/2020. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:18-cv-00921-GMN-EJY Document 51 Filed 11/20/20 Page 1 of 5

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

***

4

SALLY VILLAVERDE,

5

Case No. 2:18-cv-00921-GMN-EJY

Plaintiff,

6

ORDER

v.

7

ROMEO ARANAS, et al.,

8

Defendants.

9
10

Before the Court is Plaintiff’s Motion for an Order Compelling Discovery Per Federal Rule

11

of Civil Procedure 37(a) (the “Motion” or “Motion to Compel”). ECF No. 46. The Court has

12

considered Plaintiff’s Motion, Defendants’ Opposition (ECF No. 47), and Plaintiff’s Reply. ECF

13

No. 48.

14

I.

Background

15

Plaintiff’s Motion seeks to compel production of medical records that Plaintiff states

16

Defendants have refused to produce. Defendants contend that they have followed Administrative

17

Regulation 639 and produced a copy of the medical records to the Warden’s office where Plaintiff

18

admits he had an opportunity to review the records. Defendants state Plaintiff is not entitled to a

19

copy of the medical records in his cell, but that the Administrative Regulation provides safeguards

20

for inmates involved in litigation ensuring litigants are able to use the medical documents as exhibits

21

in judicial proceedings. Defendants also argue that Plaintiff cites to an outdated Medical Directive

22

which does not allow an inmate to keep copies of medical records in his/her cell.

23

In Reply Plaintiff admits that he received notice on October 19, 2020 stating that a stack of

24

documents, about two and one-half inches thick, was available to be viewed, but that Plaintiff had

25

to file a kite to the Warden’s Administrative Assistant to view the records. Plaintiff states that the

26

notice indicated he was not entitled to retain any pages or make copies of any pages of the documents

27

he could view. Plaintiff admits that on October 23, 2020, he was able to view the documents and

28

take notes, but was not allowed to make copies. Plaintiff continues to complain that he was denied
1

Case 2:18-cv-00921-GMN-EJY Document 51 Filed 11/20/20 Page 2 of 5

1

the ability to make or retain copies of his medical records and that, irrespective of the Administrative

2

Regulation, the Medical Directive on which he relies should prevail.

3

II.

Discussion

4

Federal Rule of Civil Procedure 37(a)(1) allows a party to move to compel an opposing party

5

to respond to discovery. Plaintiff brings his Motion to Compel, which the Court finds is limited to

6

Plaintiff’s desire to obtain copies of medical records that Defendants allegedly failed to produce.

7

Plaintiff relies heavily on Medical Directive 707 with an effective date of September 2017 to support

8

his argument. ECF No. 46 at 17-20. Plaintiff placed an asterisk next to Medical Directive section

9

707.01.10, which states:
Original records will not be sent to any non-NDOC location, unless ordered by the court.

10

•

In the event original records are ordered in cases of litigation, only
authorized staff, i.e. Health Information Director, Health Information
Coordinator, Medical Director, Director of Nursing Service or designee,
will hand deliver the medical record.

•

Original records will not leave the possession of medical staff at any time.

•

11

If necessary copies will be made of the original, in the presence of the
medical staff member, and copies left with the court, the original record
will be returned to the institution or archives. 1

12
13
14
15
16
17

ECF No. 46 at 18.

18

Plaintiff argues that, pursuant to section 707.01.13 of the 2017 version of the Medical

19

Directive, he is entitled to review and receive copies of his medical records. This section of the

20

September 2017 Medical Directive states, in relevant part: “Inmates may not obtain copies of their

21

medical records to keep on the yard. The exceptions are: … If an inmate is acting as their own

22

attorney, they may review their medical record and decide what they will need to be copied. … The

23

records will be copied and kept in the Medical Records Dept. until the court date.” Id. at 19.

24

Importantly, these same standards appears in the current and operative Medical Directive with an

25

effective date of September 2020. ECF No. 47-5. Thus, whether reviewing the 2017 or 2020 version

26

of the Medical Directive, the Court finds that the Directive does not support the conclusion that

27

Plaintiff is entitled to make and keep copies of his medical records in his cell. For this reason, the

28

1

Grammatical errors in the State’s Directives and Administrative Regulation are not corrected in this Order.
2

Case 2:18-cv-00921-GMN-EJY Document 51 Filed 11/20/20 Page 3 of 5

1

Court conclude that Defendants did not fail to produce medical records requested by Plaintiff in

2

violation of Medical Directive 707.

3

However, the Court also reviewed Administrative Regulation 639. ECF No. 47-4. This

4

Regulation was effective on March 1, 2018. Although Plaintiff may not have access to the

5

Regulation at this time, the Court finds its content controlling for purposes of Plaintiff’s Motion to

6

Compel. The Regulation includes the following statements:
•

9

Exception to this release shall be made only when an inmate is personally
involved in a lawsuit directly involving medical issues that would require
the use of his/her medical records, as verified by the Office of the Attorney
General. Id. at 3-4.

•

8

Copies of the health record shall not be released directly to the inmate while
incarcerated. Id. at 3.

•

7

An inmate is prohibited from possessing any portion of their medical file on
their person, in their cell or on the yard unless otherwise permitted by a
court order. Id. at 4.

10
11
12
13

Here, Plaintiff states in Reply that upon reviewing his medical records he discovered “new

14

information” regarding blood tests showing pre-existing diabetes and eye tests revealing glaucoma.

15

ECF No. 48 at 3. Plaintiff argues that this information “again revealed defendant’s deliberate

16

indifferences to Plaintiff’s serious needs because up to this date Plaintiff has not received any

17

treatment related to th[ese] … pre-existing serious conditions.” Id. at 3-4. The Court’s review of

18

Plaintiff’s operative Complaint shows he avers Eighth Amendment violations based on deliberate

19

indifference to health care involving his eyes and potential diabetes. Thus, the medical records

20

Plaintiff identifies in his Motion and Reply appear to be related to the instant litigation involving

21

medical issues that may require the use of his medical records. The Court also notes that summary

22

judgment motions have not yet been filed in this case and that the medical records may be pertinent

23

to such a motion if filed by Plaintiff or, if Defendants file a motion for summary judgment, pertinent

24

to Plaintiff’s opposition to Defendants’ motion.

25

III.

Order

26

Accordingly,

27

IT IS HEREBY ORDERED that Plaintiff’s Motion for an Order Compelling Discovery Per

28

Federal Rule of Civil Procedure 37(a) (ECF No. 46) is GRANTED in part and DENIED in Part.
3

Case 2:18-cv-00921-GMN-EJY Document 51 Filed 11/20/20 Page 4 of 5

1

IT IS FURTHER ORDERED that Plaintiff shall be provided one (1) hour of time to review

2

his medical records again. This review shall occur within fifteen (15) days of the date of this

3

Order.

4

IT IS FURTHER ORDERED that at the time of Plaintiff’s review of his medical records he

5

shall be entitled to identify, in any way reasonably available to Plaintiff, all pages in the medical

6

records pertaining to tests, complaints of, diagnoses of, recommendations relating to, and the

7

treatment or lack of treatment for hypertension, diabetes, and eye problems.

8

IT IS FURTHER ORDERED that Plaintiff shall be entitled to copies of the pages he

9

identifies as these pages are determined by the Court to involve medical issues arising in his lawsuit.

10

IT IS FURTHER ORDERED that copies shall be provided to Plaintiff no later than seven

11
12
13

(7) days after they are identified by Plaintiff.
IT IS FURTHER ORDERED that the copies shall be provided to Plaintiff in a sealed
envelope.

14

IT IS FURTHER ORDERED that a copy of the documents provided to Plaintiff shall be kept

15

in the medical clinic in separate identifiable manner so that if the copy provided to Plaintiff goes

16

missing for some reason there is a readily available second copy that may be made available to

17

Plaintiff.

18
19

IT IS FURTHER ORDERED that Plaintiff shall not disclose the documents he receive to
any other individual at HDSP, whether inmate or employee.

20

IT IS FURTHER ORDERED that the documents provided to Plaintiff are for the sole

21

purpose of allowing Plaintiff to use the same in this litigation in support of or opposition to a motion

22

for summary judgment. Once this litigation concludes, Plaintiff shall return the medical documents

23

in his possession to the medical staff.

24

IT IS FURTHER ORDERED that the due date for motions for summary judgment shall

25

be January 22, 2021. If Plaintiff seeks to file a motion for summary judgment, he must place his

26

motion in the mail on or before January 22, 2021.

27
28
4

Case 2:18-cv-00921-GMN-EJY Document 51 Filed 11/20/20 Page 5 of 5

1

IT IS FURTHER ORDERED that opposition(s) to motion(s) for summary judgment are due

2

February 24, 2021. If Plaintiff seeks to file an opposition to Defendants’ motion for summary

3

judgment, he must place his opposition in the mail on or before February 24, 2021.

4

IT IS FURTHER ORDERED that replies in support of motions for summary judgment are

5

due March 16, 2021. If Plaintiff seeks to file a reply in support of his motion for summary judgment,

6

he must place his reply in the mail on or before March 16, 2021.

7
8

Dated this 20th day of November, 2020.

9
10
11
12

ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5