Bell v. Peery et al
Filing
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ORDER granting and denying 46 Motion ; granting 47 Motion for Leave to File under seal. Parties shall submit briefs by 09/21/12 regarding plaintiff's mental health records. (see order for specifics) Signed by Magistrate Judge William G. Cobb on 08/28/12. (Copies have been distributed pursuant to the NEF - LG)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WILLIAM BELL,
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Plaintiff,
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vs.
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JOHN PEERY, et al.,
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Defendants.
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______________________________________)
3:11-cv-00745-RCJ-WGC
ORDER
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Before the court is Plaintiff’s Request for a Suspension of Proceedings. (Doc. # 46.)
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Defendants have opposed Plaintiff’s request. (Doc. # 48.) In addition, Defendants seek to file
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Exhibit B in support of their opposition under seal. (Doc. # 47.)
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I. BACKGROUND
A. Facts and Plaintiff’s Claim
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At all relevant times, Plaintiff William Bell was in custody of the Nevada Department of
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Corrections (NDOC), housed at Northern Nevada Correctional Center (NNCC). (Pl.’s Compl. (Doc.
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# 4) 1.) Plaintiff, a pro se prisoner, brings this action pursuant to 42 U.S.C. § 1983. (Id.) Defendants
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are Keith Ownsby, Janet Lamb, David Mar, John Peery, and Sandra Snider. (Id. at 1-3.)
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On screening, the court determined that Plaintiff states a colorable claim for deliberate
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indifference to a serious medical need under the Eighth Amendment in connection with his allegation
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that he was forced to take the antipsychotic medication Abilify. (Screening Order (Doc. # 3).)
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B. Request for Injunctive Relief
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On October 21, 2011, Plaintiff filed a motion seeking injunctive relief in the form of an order
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precluding Defendants from forcing him to take Abilify, a prescription drug which is indicated for
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mental health treatment. (Doc. # 5.) Given the nature of Plaintiff’s assertions, the court set an
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accelerated briefing schedule and set the matter for a hearing. (Doc. # 14.) In their opposition,
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Defendants represented that Plaintiff was not being forced to take any antipsychotic medications. (Doc.
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# 9.) As a result of these representations, the court determined that the initial urgency associated with
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Plaintiff’s request for injunctive relief no longer existed and the court vacated the hearing. (See Doc.
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# 17.)
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On April 11, 2012, the court issued a Report and Recommendation that Plaintiff’s request for
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injunctive relief be denied, which was adopted by the district court on August 14, 2012. (Docs. # 37,
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# 51.) After undertaking a thorough review of Plaintiff’s medical records which indicated Plaintiff was
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not being forced to take Abilify, the court concluded that Plaintiff had not demonstrated a likelihood
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of success on the merits of his claim that Defendants had been deliberately indifferent to his serious
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medical need. (Id.)
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C. Plaintiff’s Motion to Conduct Early Discovery and Request for Assistance by Another
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Inmate
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Plaintiff also filed a motion to conduct early discovery to support his motion for injunctive
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relief, and the court held a hearing on this motion on December 19, 2011. (Docs. # 16, # 23.) In his
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motion, Plaintiff requested that he be granted early access to his medical records in order to support
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his request for injunctive relief. (Id.) He also asked that he be allowed to be accompanied by an inmate
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assistant in reviewing his medical records because of his inability to read or write. (Id.)
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Defendants opposed Plaintiff’s motion. (Doc. # 22.) Defendants did not oppose Plaintiff’s
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request to inspect and copy his medical records so long as he did so in accordance with NDOC
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regulations. (Id.) However, Defendants did argue that Plaintiff would not be able to review the
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requested mental health records because that the majority of the information contained in those records
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would need to be redacted from Plaintiff because they would be harmful or otherwise negatively impact
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the emotional and mental well being of Plaintiff. (Id. at 5.) Finally, Defendants asserted that NDOC
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regulations prohibited Plaintiff from having another inmate access to his medical records. (Id. at 4.)
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Instead, they offered to afford Plaintiff the opportunity to inspect his records with a non-inmate
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assistant. (Id. at 5.) This assistant would read Plaintiff the records and assist him in taking notes and
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copying the records. (Id.)
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At the December 19, 2011 hearing, Plaintiff informed the court he was not taking Abilify and
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had not taken it since October 25, 2011. (See Minutes at Doc. # 23.) Defense counsel reiterated that
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Plaintiff was not being forced to take Abilify. (Id.) Out of an abundance of caution, defense counsel
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agreed to place a notice in Plaintiff’s medical file that if it became necessary for Plaintiff to be treated
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involuntarily, the deputy attorney general assigned to this case should be notified in advance so that he
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could in turn notify the court and the court could hold a status conference. (See Docs. # 23, # 24,
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# 24-1.) As a result of this filing, the court determined that the basis for Plaintiff’s motion for early
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discovery was moot and denied the motion. (Doc. # 29 at 1.) To date, the court has not been notified
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of any attempt to forcibly medicate Plaintiff.
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While the court denied Plaintiff’s motion for the reasons stated above, the court briefly
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addressed Plaintiff’s request for inmate assistance in connection with reviewing his medical records.
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(See Minutes at Doc. # 23.) Plaintiff was advised that he could utilize the assistance of a fellow inmate
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for purposes of reading and writing his pleadings in this case, but the inmate assistant would not be
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permitted to appear at hearings or act as Plaintiff’s attorney. (Id.) The court confirmed that a case
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worker would be permitted to appear with Plaintiff at hearings, as one did at the December 19, 2011
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hearing, for purposes of helping Plaintiff to understand what is occurring. (Id.)
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Defendants correctly point out in their Motion for Summary Judgment (Doc. # 39) that while
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not reflected in the minutes, the court also addressed Defendants’ argument that Plaintiff not be given
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access to his mental health records. (Doc. # 39 at 3 n. 1.) The court stated that it was not persuaded
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by Defendants’ argument that Plaintiff should not be able to review his mental health records that are
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germane to this case. The Court stated that it was inclined to order that plaintiff be allowed to review
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them if he were required to oppose a motion for summary judgment in the future. (Id.) The court did
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not make any definitive ruling on this issue, but advised Defendants that they would need to provide
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additional support for their argument (i.e., that Plaintiff not be given access to his mental health records)
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upon filing a motion for summary judgment. (Id.)
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D. Defendants’ Motion for Summary Judgment
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On April 23, 2012, Defendants filed a Motion for Summary Judgment, arguing that they were
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not deliberately indifferent to Plaintiff’s serious medical need because Plaintiff was not forced to take
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Abilify. (Doc. # 39.) In connection with their motion, and in accordance with the court’s instruction
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at the December 19, 2011 hearing, Defendants attached the Declaration and Report of Dr. John Harris,
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one of Plaintiff’s health care providers, wherein Dr. Harris urges the court to order that Plaintiff’s
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mental health records not be made available to Plaintiff. (See Doc. # 39 at 3 n. 1, Doc. # 40-1 (Ex.
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A) at 2-5.)
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On May 4, 2012, Plaintiff requested an extension of time to respond to Defendants’ Motion for
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Summary Judgment on the basis that he is illiterate and must rely on the assistance of fellow inmates
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to prepare his response. (Doc. # 44.) This motion was granted, and Plaintiff was given up to July 2,
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2012 to file his response. (Doc. # 45.)
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E. Plaintiff’s Motion to Suspend Proceedings
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Plaintiff did not file a response to Defendants’ motion. Instead, on June 13, 2012, Plaintiff filed
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the instant motion requesting a suspension of proceedings. (Doc. # 46.) Plaintiff’s request is based on
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the assertion that he is illiterate and cannot articulate an appropriate response to Defendants’ motion.
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(Id. at 1.) Plaintiff indicates that he has been able to reach this point in the litigation only with the
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assistance of a fellow inmate. However, this inmate assistant is not allowed to view Plaintiff’s medical
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records and therefore cannot assist him in preparing a response to Defendants’ motion. (Id. at 1-2.)
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Plaintiff also makes reference to a denial of a request for the appointment of counsel (no prior motion
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for appointment of counsel had been filed by the plaintiff). (Id.) He asserts that until such time as
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counsel is appointed or his inmate assistant is given access to his medical records, these proceedings
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should be suspended. (Id. at 2.)
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Defendants oppose Plaintiff’s request, arguing: (1) Plaintiff is not entitled to appointed counsel;
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and (2) Plaintiff’s inmate assistant should not be given copies of Plaintiff’s medical records as NDOC
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will provide Plaintiff access to a non-inmate individual to read, assist Plaintiff in taking notes, and copy
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records which Plaintiff designates. (Doc. # 48.)
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II. DEFENDANTS’ MOTION TO SEAL EXHIBIT B (Doc. # 46)
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Defendants seek leave to file Exhibit B in support of their opposition under seal. (Doc. # 47.)
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Exhibit B consists of medical progress notes from Plaintiff’s medical chart. (Id. at 2.) The court notes
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that this is not one of the records to which Defendants claim Plaintiff should not have access.
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“Historically, courts have recognized a general right to inspect and copy public records and
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documents, including judicial records and documents.” See Kamakana v. City and County of Honolulu,
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447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks and citation omitted). Documents that
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have been traditionally kept secret, including grand jury transcripts and warrant materials in a pre-
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indictment investigation, come within an exception to the general right of public access. See id.
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Otherwise, “a strong presumption in favor of access is the starting point.” Id. (internal quotation marks
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and citation omitted).
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A motion to seal documents that are part of the judicial record, or filed in connection with a
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dispositive motion, must meet the “compelling reasons” standard outlined in Kamakana. Thus, a party
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seeking to seal judicial records must show that “compelling reasons supported by specific factual
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findings...outweigh the general history of access and the public policies favoring disclosure.”
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Kamakana, 447 F.3d at 1178-79. The trial court must weigh relevant factors including “the public
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interest in understanding the judicial process and whether disclosure of the material could result in
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improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.”
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Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 679 n. 6 (9th Cir. 2010) (internal quotation marks and
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citation omitted). While the decision to grant or deny a motion to seal is within the trial court’s
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discretion, the trial court must articulate its reasoning in deciding a motion to seal. Pintos, 605 F.3d at
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679.
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When a motion to seal documents is filed in connection with a non-dispositive motion, as it is
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here, “the usual presumption of the public’s right of access is rebutted[,]” and requires only a showing
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of “good cause.” Kamakana, 447 F.3d at 1180 (“A ‘good cause’ showing under Rule 26(c) will suffice
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to keep sealed records attached to non-dispositive motions.”).
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The court recognizes that the need to protect medical privacy has qualified as a “compelling
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reason,” for sealing records, and therefore, satisfies the “good cause” standard for documents filed in
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connection with a non-dispositive motion. See, e.g., San Ramon Regional Med. Ctr., Inc. v. Principal
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Life Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10, 2011); Abbey v. Hawaii Employers Mut. Ins.
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Co., 2010 WL4715793, at * 1-2 (D. HI. Nov. 15, 2010); G. v. Hawaii, 2010 WL 267483, at *1-2 (D.
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HI. June 25, 2010); Wilkins v. Ahern, 2010 WL3755654 (N.D. Cal. Sept. 24, 2010); Lombardi v.
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TriWest Healthcare Alliance Corp., 2009 WL 1212170, at * 1 (D.Ariz. May 4, 2009).
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Here, Exhibit B contains Plaintiff’s sensitive health information. Balancing the need for the
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public’s access to information regarding Plaintiff’s medical information against the need to maintain
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the confidentiality of Plaintiff’s medical records weighs in favor of sealing this exhibit. Therefore, the
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motion to file Exhibit B under seal is granted.
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III. PLAINTIFF’S REQUEST FOR SUSPENSION OF PROCEEDINGS
A. Request for Appointment of Counsel
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Preliminarily, and as noted above, the court has reviewed the docket and finds that Plaintiff has
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not previously filed a motion requesting counsel as he indicates in his current motion. Nonetheless, the
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court will construe Plaintiff’s pending motion as making such a request and will address it in the first
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instance.
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A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel.
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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very limited circumstances, federal courts
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are empowered to request an attorney to represent an indigent civil litigant. The circumstances in which
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a court will grant such a request, however, are exceedingly rare, and the court will make the request
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under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800
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(9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The decision whether to
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appoint counsel is discretionary with the court.
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A finding of such exceptional or extraordinary circumstances requires that the court evaluate
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both the likelihood of success on the merits and the pro se litigant's ability to articulate his claims in
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light of the complexity of the legal issues involved. Neither factor is controlling; both must be viewed
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together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), citing Wilborn,
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supra, 789 F.2d at 1331.
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First, the court has already made a determination Plaintiff has not established a likelihood of
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success on the merits of his Eighth Amendment claim when Plaintiff’s request for injunctive relief was
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denied. (See Docs. # 37, # 51.)
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Second, Plaintiff’s various filings in this case, while likely prepared with the assistance of
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another inmate, demonstrate Plaintiff’s ability to satisfactorily articulate his claims. While the court
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appreciates that Plaintiff’s task of litigating this case may be difficult in light of his inability to read and
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write, Plaintiff has proven that he is still able to articulate his claims with the aid of an inmate assistant.
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Plaintiff’s circumstances may not be ideal, but this is the plight of many pro se inmate litigants, and the
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court finds that they do not rise to the level of the exceptional or extraordinary circumstances that justify
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the appointment of counsel, particularly in view of the determination above with respect to the
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likelihood of success criteria..
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B. Request for Suspension of Proceedings
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The court will now address Plaintiff’s request for a suspension of proceedings on the grounds
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that he cannot articulate a response to Defendants’ Motion for Summary Judgment because his inmate
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assistant is denied access to his medical records.
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This request raises several issues not specifically addressed in Plaintiff’s motion that need to
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be determined before Plaintiff can proceed with responding to Defendants’ Motion for Summary
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Judgment, including: (1) whether Plaintiff can access his mental health records; (2) whether Plaintiff
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can utilize another inmate to assist him in reviewing his medical records so that he can prepare a
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meaningful response to Defendants’ motion; (3) or whether NDOC’s offer to afford Plaintiff the
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opportunity to utilize a non-inmate assistant to review, take notes and copy his medical records is
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sufficient.
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1. Plaintiff’s Access to His Mental Health Records
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Preliminarily, the court notes that Defendants do not dispute that Plaintiff may access his
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medical records, but take exception to his accessing his mental health records. (See Doc. # 39 at 3 n. 1.)
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At the December 19, 2011 hearing, the court indicated that it was not persuaded by Defendants’
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arguments that Plaintiff should not have full access to review his medical records if he were required
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to oppose any motion for summary judgment Defendants might file. The court did, however, invite
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Defendants to renew this argument when they filed a dispositive motion.
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Defendants did so, and in connection with their Motion for Summary Judgment submitted the
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affidavit of Dr. John Harris, urging the court to order that Plaintiff’s mental health records not be made
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available to Plaintiff. (See Doc. # 39 at 3 n. 1, Doc. # 40-1 (Ex. A) at 2-5.) Defendants have requested
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that this affidavit be filed under seal. (Doc. # 38.) The court has not yet ruled on the motion to file the
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affidavit under seal, but the court has reviewed the affidavit of Dr. Harris in camera. While the court
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respect’s Dr. Harris’s opinion, it has an obligation to administer justice and assure that a party is
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afforded an opportunity to present his or her case. The court is particularly concerned with the prospect
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of not allowing Plaintiff an opportunity to review his relevant mental health records in connection with
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his preparation of a response to a dispositive motion. This consideration is of particular significance
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where the gravamen of Plaintiff’s action relates to the alleged non-consensual administration of mental
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health medication, i.e., Abilify. Thus, while the court is still inclined to afford Plaintiff an opportunity
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to review his mental health records, it will allow further briefing and will conduct a hearing to allow
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the parties to present oral argument on this issue before making a final determination.
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2. Assistance in Reviewing Medical Records
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The court is now confronted with the issue of whether Plaintiff’s inmate assistant should be
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allowed to review Plaintiff’s medical records along with him so that Plaintiff may prepare a response
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to Defendants’ Motion for Summary Judgment, or whether NDOC’s officer to provide Plaintiff was
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a non-inmate assistant to review, take notes and copy designated medical records is sufficient.
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There is no dispute regarding Plaintiff’s inability to read and write. Therefore, it is clear that
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Plaintiff will need some manner of assistance in reviewing his medical records in order to articulate and
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prepare a meaningful response to Defendants’ motion. The court has determined that it will also afford
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the parties an opportunity to present further briefing and oral argument on this issue.
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The court has not heard a rebuttal argument from Plaintiff with respect to NDOC’s offer to
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provide him with a non-inmate assistant that will read, take notes and copy designated medical records.
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On the other hand, Plaintiff should also address why a non-inmate assistant would be insufficient.
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Moreover, the court requests Defendants address whether providing this non-inmate would
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allow Plaintiff to prepare a meaningful argument in opposition to Defendants’ motion. In other words,
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if his inmate assistant is not allowed to take part in the medical records review, how will Plaintiff be
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able to incorporate what he gleans from his medical records review with the non-inmate assistant into
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an articulate legal argument. The court is cognizant of NDOC’s regulations which prevent inmates
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from accessing the medical records of another inmate, but further requests Defendants to address
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whether blind adherence to these regulations would necessarily hamper Plaintiff’s ability to respond
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to a dispositive motion under these circumstances.
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Finally, the court asks Defendants to address whether Plaintiff would have a separate and
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independent constitutional claim if the court were to deny Plaintiff’s request in this pending action that
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his inmate assistant have access to his medical records under these circumstances.
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IV. CONCLUSION
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(1) Defendants’ motion to file Exhibit B under seal (Doc. # 47) is GRANTED.
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(2) To the extent Plaintiff’s motion (Doc. # 46) is construed as asserting a request for the
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appointment of counsel, such request is DENIED.
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(3) To the extent Plaintiff’s motion (Doc. # 46) requests a suspension of proceedings, such
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request is GRANTED to allow the court to address the following issues: (a) whether Plaintiff should
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have access to his mental health records; and (b) the extent to which Plaintiff should be afforded
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assistance in reviewing his medical records, and scope of such assistance.
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(4) The parties shall simultaneously submit briefs on these issues on or before September 21,
2012. The court will schedule a hearing to be conducted shortly thereafter.
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IT IS SO ORDERED.
DATED: August 28, 2012.
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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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