Ballard v. NC Dept. of Public Safety et al

Filing 88

ORDER denying 65 Motion to Compel; granting 71 Motion for Protective Order; denying 75 Motion for Law Library; denying 75 Motion to Appoint Counsel; denying 81 Motion for Rule 26(f) Meeting; granting 82 Motion for Protective Order; denying 85 Motion to Stay. Signed by Chief Judge Frank D. Whitney on 6/16/2015. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-cv-175-FDW
ROBERT S. BALLARD,

)
)
Plaintiff,
)
)
vs.
)
)
NC DEPARTMENT OF
)
PUBLIC SAFETY,
)
MARTA M. KALINSKI, Doctor,
)
PAULA SMITH, Doctor, Director of
)
Health Services,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on the following motions by the parties: (1)
Plaintiff’s Motion to Compel Defendants to Release and Produce Documents, (Doc. No. 65),
Plaintiff’s Motion for Law Library, (Doc. No. 75), Plaintiff’s Motion for Rule 26(f) Meeting,
(Doc. No. 81), Plaintiff’s Motion to Stay/Continue, (Doc. No. 85), and Defendant’s Motions for
Protective Order, (Doc. Nos. 71; 82).
I.

Background

Plaintiff filed this action on November 26, 2013, bringing a claim against the sole
remaining Defendant in this action, Marta Kalinski, for deliberate indifference to a serious
medical need. Specifically, Plaintiff alleges that Defendant took Plaintiff off pain medications
without any cause and/or justification, and such actions showed a deliberate indifference to a
serious medical need. On June 30, 2014, this Court conducted an initial review of Plaintiff’s
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and concluded that Plaintiff’s allegations of an
Eighth Amendment violation against Defendant Kalinski survived initial review. (Doc. No. 19).
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Defendant filed a motion to dismiss for failure to state a claim on August 28, 2014, which
motion this Court denied on February 10, 2015. (Doc. Nos. 31; 45).
The Court entered a Pretrial Order and Case Management Plan on February 12, 2015,
requiring all discovery to be completed by June 11, 2015. (Doc. No. 47). The Order specifically
stated that the parties were required to “initiate discovery requests . . . sufficiently in advance of
the discovery completion deadline so as to comply with this Order. Discovery requests that seek
responses . . . after the discovery completion deadline are not enforceable except by order of the
Court for good cause shown.” (Id. at 2-3). Per the Order, each party was to propound no more
than 20 Interrogatories, including subparts, and to request no more than 20 requests for
admission. (Id. at 2).
Defendant was served with Plaintiff’s First Set of Interrogatories on February 22, 2015,
and two sets of Requests for Production of Documents, one dated February 21, 2015, and one
dated February 24, 2015, all of which were received by defense counsel on February 27, 2015.
Plaintiff then served Defendant with a Third Request for Production of Documents on March 1,
2015. The Court then granted Defendant’s motions for extensions of time, giving Defendant
until April 30, 2015, in which to file discovery responses. (Doc. No. 53). On April 13, 2015,
Plaintiff served a “Request for Admissions” on Defendant.
On April 21, 2015, Defendant sent Plaintiff her discovery responses. Along with the
responses, Defendant sent Plaintiff all of the records she had received (and has received to date)
from the North Carolina Department of Public Safety for Plaintiff. Defendant was involved in
Plaintiff’s care from approximately August 2013 to February 2014. Defendant received records
up through September 2014, more than six months after the last time Defendant had any contact
with or entered any orders with respect to Plaintiff, and Defendant asserts that she has provided
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these records to Plaintiff, totaling approximately 2,897 pages. On April 25, 2015, Plaintiff
served Defendant with a Second Set of Interrogatories and a Fourth Request for Production of
Documents. On May 22, 2015, Plaintiff served on Defendant a Fifth Request for Production of
Documents.
II.

Discussion

a. Plaintiff’s Motion to Compel (Doc. No. 65)
The Court first addresses Plaintiff’s motion to compel filed on May 1, 2015, in which
Plaintiff moved “for an order compelling defendants to produce certain documents withheld by
defendants.” (Doc. No. 65). In Plaintiff’s motion, Plaintiff claims there is a “health care
manual” in Defendant’s possession and which Defendant is denying Plaintiff. (Id. at 1).
Plaintiff then claims that Defendant has gone through Plaintiff’s medical records and removed
certain papers. (Id. at 2). Finally, Plaintiff claims that Defendant is in possession of a policy
regarding the dispensing of scheduled narcotic medicine and that said policy is in the “health
care manual that the Defendants do not want Plaintiff to have.” (Id. at 3).
The Court denies the motion to compel for the reasons stated in Defendant’s response, in
which Defendant denies withholding any medical information from Plaintiff. Defendant also
states that she is neither the owner of the health care manual at issue, nor does she have it in her
possession. The Court finds that Defendant has complied in good faith with Plaintiff’s discovery
requests, and the Court will not compel Defendant to produce the health care manual that
Plaintiff is seeking. Federal Rules of Civil Procedure 34(c) and 45 provide a means for Plaintiff
to obtain documents from non-parties such as the North Carolina Department of Public Safety
(the purported owner of the health care manual requested by Plaintiff), and Plaintiff’s attempt to
seek this information through Defendant is improper. Furthermore, the burden and expense of
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making Defendant attempt to obtain such information would be greatly outweighed by any
potential benefit as Plaintiff’s request would also not likely lead to the discovery of relevant
evidence. In sum, the Court denies Plaintiff’s motion to compel.
b. Defendant’s Motion for a Protective Order (Doc. No. 71)
The Court next addresses Defendant’s Motion for a Protective Order regarding Plaintiff’s
Second Set of Interrogatories, Fourth Request for Production of Documents, and Requests for
Admissions recently served on Defendant. (Doc. No. 71). After reviewing the court file and the
materials submitted by the parties, the Court concludes that, for the reasons set forth in
Defendant’s brief, Defendant shall not be required to answer Plaintiff’s Second Set of
Interrogatories, Plaintiff’s Fourth Request for Production of Documents, or Plaintiff’s Requests
for Admissions. Specifically, the Court finds that Defendant has engaged in discovery in good
faith and has reasonably responded to Plaintiff’s discovery requests. With respect to Plaintiff’s
Second Set of Interrogatories, Plaintiff has exceeded his Interrogatory limit of 20 and Plaintiff’s
Second Set of Interrogatories are therefore improper. Moreover, Plaintiff’s Second Set of
Interrogatories subjects Defendant to annoyance, undue burden, and expense, as well as being
unreasonably cumulative and duplicative. Plaintiff’s Second Set of Interrogatories also seeks
information that Plaintiff may himself ascertain from the medical records. Many of Plaintiff’s
questions are phrased to be harassing and argumentative. Other questions by Plaintiff are within
his own knowledge and available from a more convenient source. Moreover, Defendant has
already responded to the First Set of Interrogatories where many of these same questions were
asked, and Defendant has represented to this Court that she does not have Plaintiff’s latest
medical records. Finally, considering the filings and the submissions before this Court, any
benefit to Defendant answering Plaintiff’s Second Set of Interrogatories is outweighed by the
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burden and expense of doing so.
As to Plaintiff’s Fourth Request for Production of Documents, in which Plaintiff seeks
his medical records from September 2014 to the present, Defendant has asserted that she was
involved in Plaintiff’s care from approximately August 2013 to February 2014. Defendant
received records from May 2014 up through September 2014, more than six months after the last
time Defendant had any contact with or entered any orders with respect to Plaintiff. Defendant
asserts that she provided these records to Plaintiff, copying and mailing thousands of pages of
records at Defendant’s expense. Defendant has further represented to this Court that she is not in
possession of Plaintiff’s latest medical records.
With respect to Plaintiff’s Request for Admissions, Plaintiff’s Request for Admissions
are not properly phrased questions under Rule 36 capable of being admitted or denied.
Moreover, Rule 36 mandates that when seeking a request for admission about the genuineness of
a document, a copy of the subject document must be attached, and Plaintiff has failed to do so.
Furthermore, Plaintiff’s questions are argumentative, harassing, and in the vein of argumentative
Interrogatories. As the Court has noted, Plaintiff has already exceeded his Interrogatory limit per
this Court’s order. Moreover, certain numbers of Plaintiff’s request questions seek to ascertain
information about physician employment at Alexander Correctional Institution and other inmate
deaths, which seeks confidential, proprietary, and HIPAA-protected information, and also
information that is not in Defendant’s possession.
In sum, Defendant’s motion for a protective order is granted as to Plaintiff’s Second Set
of Interrogatories, Fourth Request for Production of Documents, and Requests for Admissions.
c. Defendant’s Motion for a Protective Order (Doc. No. 82)
The Court next addresses Defendant’s Motion for a Protective Order regarding Plaintiff’s
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Fifth Request for Production of Documents, served on May 22, 2015. Plaintiff’s Fifth Request
for Production of Documents seeks the production of “medical records of the Plaintiff from
September 1, 2014, to April 1, 2015” and demands a copy of a “health care manual for
prisoners.” As Defendant notes, the medical records sought by Plaintiff’s Fifth Request for
Production are practically identical to the records requested in his Fourth Request for Production
served on April 25, 2015. Defendant seeks an order from this Court relieving Defendant from
responding to Plaintiff’s request on the grounds that the Request was not timely served under the
Court’s Pretrial Order and Case Management Plan, and because Plaintiff’s Request is harassing,
duplicative of previous discovery requests to which Defendant has already fully responded, and
because it subjects Defendant to annoyance, burden, and expense. For the reasons stated in
Defendant’s brief in support of the motion for a protective order, the Court will grant the motion,
and the Court finds that Defendant is relieved of any duty to respond to Plaintiff’s Fifth Request
for Production of Documents.
In sum, Defendant’s motion for a protective order is granted as to Plaintiff’s Fifth
Request for Production of Documents.
d. Plaintiff’s Motion for Law Library, (Doc. No. 75), and Plaintiff’s Motion for
Rule 26(f) Meeting, (Doc. No. 81)
The Court next addresses Plaintiff’s “Motion for a Law Library or Appointment of
Counsel” in which Plaintiff argues that he has written to North Carolina Prisoner Legal Services,
which has informed Plaintiff that they cannot assist him. Plaintiff also states that he has been
unable to obtain an attorney to assist him and that he does not have access to a law library.
Plaintiff asks the Court to appoint counsel to him or to provide a law library to Plaintiff within
the next thirty days and to continue the period of discovery until ten days after a ruling on
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Plaintiff’s motion. Plaintiff’s motion will be denied. To the extent that Plaintiff seeks
appointment of counsel, the Court denies the motion for the same reasons the Court has already
denied Plaintiff’s previous requests for appointment of counsel. Furthermore, the Court has no
authority to “install a decent law library immediately in Maury Correctional Institution” as
Plaintiff requests. (Doc. No. 75 at 3). In sum, Plaintiff’s motion is denied.
Next, in support of his motion for a Rule 26(f) meeting, Plaintiff requests an order from
the Court requiring the parties to meet and confer in accordance with Federal Rule of Civil
Procedure 26(f) and he states that he is willing to discuss a possible settlement. Plaintiff’s
motion will be denied because this action is exempted from Rule 26(f)’s requirement of a
preliminary scheduling conference. See FED. R. CIV. P. 26(f)(1) (exempting those actions not
required to provide certain initial disclosures pursuant to Rule 26(a)(1) from the requirement of
conducting a preliminary scheduling conference); see FED. R. CIV. P. 26(a)(1)(B)(iv) (exempting
from initial disclosure requirements those actions “brought without an attorney by a person in the
custody of the United States, a state, or a state subdivision”).
e. Plaintiff’s Motion to Stay/Continue (Doc. No. 85)
Finally, in support of his motion to stay, Plaintiff has informed the Court that he received
authorization for surgery, and that he will likely undergo surgery sometime soon. The Court will
not stay this action. The discovery period is now closed, the Court is awaiting dispositive
motions. If Plaintiff needs additional time to respond to any dispositive motions filed by
Defendant, the Court will give him additional time, but the Court declines to stay the action at
this time.
IT IS, THEREFORE, ORDERED that:
1.

Defendant’s Motions for Protective Order, (Doc. Nos. 71; 82), are
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GRANTED.
2.

Plaintiff’s Motion to Compel Defendants to Release and Produce Documents,
(Doc. No. 65), Plaintiff’s Motion for Law Library, (Doc. No. 75), Plaintiff’s
Motion for Rule 26(f) Meeting, (Doc. No. 81), Plaintiff’s Motion to
Stay/Continue, (Doc. No. 85), are DENIED.
Signed: June 26, 2015

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