Williams v. Marks et al

Filing 49

ORDER that Plaintiff's motion (ECF No. 45 ) is GRANTED IN PART AND DENIED IN PART; Plaintiff has up to and including the extended dispositive motion deadline of August 19, 2019 to file a supplement to his motion for summary judgment (ECF No. 48 ). Signed by Magistrate Judge William G. Cobb on 7/24/2019. (Copies have been distributed pursuant to the NEF - LH)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 MICHAEL WILLIAMS,
4

Plaintiff,

5 v.

Case No.: 3:17-cv-00355-MMD-WGC
Order
Re: ECF No. 45

6 MARKS, et al.,
7

Defendants.

8
9

Plaintiff has filed a motion to obtain medical records through discovery, as well a request

10 for an order to allow him to keep his medical records in his cell. (ECF No. 45.) Defendants filed a
11 response. (ECF Nos. 47, 47-1 to 47-5.)
12

Plaintiff is an inmate incarcerated within the Nevada Department of Corrections (NDOC)

13 proceeding pro se with a civil rights lawsuit under 42 U.S.C. § 1983. He is currently housed at Ely
14 State Prison (ESP), but the events giving rise to this litigation took place while he was housed at
15 Northern Nevada Correctional Center (NNCC). On screening, Plaintiff was allowed to proceed
16 with an Eighth Amendment deliberate indifference to serious medical needs claim against
17 defendants Bacca, Mark and Melissa. This claim is based on allegations that Bacca intentionally
18 interfered with his medical treatment by pressuring defendant Marks to withhold a prescription for
19 oxycodone, and as a result Marks refused to continue to prescribe oxycodone to Plaintiff. He avers
20 that Melissa failed to respond to his reports of pain. He claims that this conduct caused him to
21 remain in unbearable pain. He was also allowed to proceed on his Eighth Amendment claim against
22 defendant Ward based on allegations that Ward denied Plaintiff's grievance that detailed the
23 actions and inactions of the medical staff regarding his unbearable pain. Finally, he was allowed

1 to proceed with a claim against defendant Ward for interference with his right of access to the
2 grievance process. (Screening Order, ECF No. 3.)
3

In his motion, Plaintiff argues that because of HIPPA, prisoners are not able to obtain their

4 medical records in litigation. He states that NDOC's Administrative Regulation (AR) 639 provides
5 that copies of health records shall not be released directly to the inmate, except when an inmate is
6 involved in a lawsuit that would require use of the medical records, as verified by the Office of the
7 Attorney General. In addition, the AR prohibits an inmate from possessing any portion of their
8 medical file on their person, in their cell or on the yard, "unless otherwise permitted by court
9 order."
10

Plaintiff asserts that he needs to obtain his medical records and possess them in his cell in

11 order to prepare for summary judgment, and for the duration of this litigation.
12

Defendants' response argues that while prison regulations preclude an inmate from

13 possessing medical records, they may review their medical records under direct supervision of
14 medical staff. When an inmate is involved in litigation, the inmate is required to send a request to
15 review the records by filing a kite. The regulations also allow inmates to make copies of their
16 medical records for legal purposes.
17

As the parties point out, AR 639 prohibits inmates from possessing medical records in their

18 cells. When an inmate is involved in a lawsuit, he may request to review his medical records and
19 make copies of pertinent records for use in litigation. Courts generally defer to the judgment of
20 prison officials in matters of security. See Bell v. Wolfish, 441 U.S. 520, 546-47 (1979).
21 "[M]aintaining institutional security and preserving internal order and discipline are essential goals
22 that may require limitation or retraction of the retained constitutional rights of both convicted
23 prisoners and pretrial detainees." Id. "[T]he problems that arise in the day-to-day operation of a

2

1 corrections facility are not susceptible of easy solutions. Prison administrators therefore should be
2 accorded wide-ranging deference in the adoption and execution of policies and practices that in
3 their judgment are needed to preserve internal order and discipline and to maintain institutional
4 security." Id. at 547 (citations omitted). "Such considerations are peculiarly within the province
5 and professional expertise of correctional officials, and, in the absence of substantial evidence in
6 the record to indicate that the officials have exaggerated their response to these considerations,
7 courts should ordinarily defer to their expert judgment in these matters." Id. at 548 (citation and
8 quotation marks omitted).
9

While the court has on occasion, and on a showing of extraordinary circumstances, issued

10 orders allowing prisoners to possess medical records, Plaintiff has not set forth anything in his
11 motion that presents such extraordinary circumstances. The procedure of kiting to request a review
12 of medical records and copying pertinent records applies to all inmates asserting medical care
13 claims in litigation. Plaintiff has not demonstrated this procedure is insufficient in his case. His
14 medical care claims are not unduly complex. Nor has he represented that something about his
15 condition makes it unduly difficult to proceed in this fashion. He does not state whether he
16 requested to review his medical records and make copies in accordance with AR 639.
17

Finally, the court notes that Plaintiff has already filed his motion for summary judgment.

18 (ECF No. 48.) He attaches as exhibits to his motion 21 medical kites filed from January 31, 2019
19 to June 5, 2019; 15 medical kites from August 3, 2018 to December 26, 2018, emergency
20 grievances and grievances. Nowhere in his motion for summary judgment does he state that he
21 requested and was denied an opportunity to review and copy pertinent medical records to prepare
22 his motion for summary judgment.
23

3

1

Nevertheless, the court will afford Plaintiff an opportunity to review his medical records

2 in accordance with AR 639 and supplement his motion for summary judgment if he deems
3 necessary. He will not be permitted to possess his medical records.
4
5

CONCLUSION
Plaintiff's motion (ECF No. 45) is GRANTED IN PART AND DENIED IN PART.

6 Plaintiff's motion is GRANTED insofar as the court orders that he be allowed to review his
7 medical records and copy any pertinent medical records that he wishes to use to supplement his
8 motion for summary judgment. The Deputy Attorney General shall ensure that this occurs
9 expeditiously following the issuance of this Order. Plaintiff has up to and including the extended
10 dispositive motion deadline of August 19, 2019 to file a supplement to his motion for summary
11 judgment that includes any argument to expand on the argument made in the motion for summary
12 judgment filed relative to his review of his medical records. Plaintiff may attach as exhibits to the
13 supplement only those medical records that are specifically relevant to his argument and the
14 medical care claims proceeding in this case. Defendants' deadline to respond to Plaintiff's motion
15 will run from the date that they are served with the supplemental briefing.
16

Insofar as he asks for an order that he be allowed to possess his medical records in his

17 cell, his motion is DENIED.
18

IT IS SO ORDERED.

19

Dated: July 24, 2019.

20

_________________________________
William G. Cobb
United States Magistrate Judge

21
22
23

4