Prince v. Cha et al

Filing 73

ORDER granting 53 Motion to Compel. Defendants are DIRECTED to permit plaintiff to inspect his medical records and review, and if necessary, supplement, their responses to plaintiffs requests within fourteen (14) days of the date of this Order. Signed by Magistrate Judge Mark R. Abel on 04/10/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

James J. Prince,

:
Plaintiff

Defendants

Judge Watson

:

Dr. Cha, et al.,

Civil Action 2:13-cv-00035

:

v.

:

Magistrate Judge Abel

:

ORDER
This matter is before the Magistrate Judge on plaintiff James J. Prince’s February
13, 2014 second motion to compel discovery requests (doc. 53). Defendants maintain
that plaintiff’s motion to compel should be denied because he failed to make any effort
to resolve this discovery dispute informally and because the motion was filed after the
close of discovery. Defendants also maintain that they have no documents in their
possession, custody or control that are responsive to his requests.
To obtain discovery, the information sought must meet the requirement of Rule
26(b)(1) that it be relevant to the claim or defense of any party. If the discovery sought
is relevant, under Rule 26(b)(2)(C)(I) the court may nonetheless limit discovery that is
unreasonably cumulative, duplicative, or “obtainable from some other source that is
more convenient, less burdensome, or less expensive . . . .” The court may also
consider whether the “burden or expense of the proposed discovery, outweighs its
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likely benefit, taking into account the needs of the case, the amount in controversy, a
party's resources, the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues.” Rule 26(b)(2)(C)(iii),
Fed. R. Civ. P. Moreover, the court has the power to issue a protective order to prevent
a party or third party to the litigation from experiencing “annoyance, embarrassment,
oppression, or undue burden or expense” of discovery.
Plaintiff argues that because he represents himself he is authorized under the
Ohio Department of Corrections and Rehabilitation (“ODRC”) policy to obtain a copy of
his prison medical records. Defendants incorrectly rely on section 5120.21 of the Ohio

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Revised Code1 for the assertion that plaintiff’s medical records are not subject to
discovery. ODRC Policy 07-ORD-11 provides:
a. Offenders wishing to review their personal current active medical
record may do so once each quarter by sending a request in writing to the
institution Health Care Administrator.
b. The Health Care Administrator will arrange a convenient time for the
offender to review his or her medical record. A medical staff employee
must be present during the entire time that the offender is reviewing the
medical record.
c. No copies of the medical file may be made for the offender.
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Section 5120.21(C) states:
(C)(1) As used in this division, “medical record” means any
document or combination of documents that pertains to the
medical history, diagnosis, prognosis, or medical condition of a
patient and that is generated and maintained in the process of
medical treatment.

(2) A separate medical record of every inmate in an institution
governed by the department shall be compiled, maintained, and
kept apart from and independently of any other record pertaining
to the inmate. Upon the signed written request of the inmate to
whom the record pertains together with the written request of
either a licensed attorney at law or a licensed physician designated
by the inmate, the department shall make the inmate's medical
record available to the designated attorney or physician. The record
may be inspected or copied by the inmate's designated attorney or
physician. The department may establish a reasonable fee for the
copying of any medical record. If a physician concludes that
presentation of all or any part of the medical record directly to the
inmate will result in serious medical harm to the inmate, the
physician shall so indicate on the medical record. An inmate's
medical record shall be made available to a physician or to an
attorney designated in writing by the inmate not more than once
every twelve months.
Ohio Rev. Code § 5120.21(C).
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d. The offender is permitted to take notes, but with a pencil only.
e. In the event of ongoing litigation, the Ohio Attorney General’s Office or
DRC Legal Department may put in place alternate access to the medical
file for an offender on a case-by-case basis.
Defendants are ORDERED to provide plaintiff an opportunity to review his medical
records.
Plaintiff argues that under ODRC Policy 79-ISA-01, documents in Dr. Cha’s
employee file concerning sexual misconduct and documents concerning Dr. Cha and
Short-Tucker’s resignation are not deemed confidential. Plaintiff seeks permission to
review Dr. Cha’s employee file or other North Central Correctional Institution
administration file concerning grievances related to sexual misconduct or investigations
conducted as a result of plaintiff’s complaint of sexual misconduct. In response to this
request, defendants asserted that this information is confidential and unlikely to lead
the discovery of admissible evidence. Additionally, defendants maintain that there are
no responsive documents.
If plaintiff in fact reported that Dr. Cha engaged in sexual misconduct, it appears
that an investigation would have occurred. ODRC Policy 79-ISA-01(V) states that “[a]ll
allegations of sexual misconduct and/or sexual harassment shall be administratively
and/or criminally investigated.“ Defendants maintain, however, that no responsive

documents exist. The Court cannot compel defendant to produce what does not exist.
Defendants, however, are obligated to respond honestly and completely to discovery
requests, and failure to do so will result in sanctions. Bratka v. Anheuser-Busch, 164
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F.R.D. 448, 463 (S.D. Oh. 1995). In their response in opposition to the motion to compel,
defendants failed to make any substantive response to this discovery request or to
demonstrate that the burden of the proposed discovery outweighs its likely benefit.
Plaintiff also seeks production of the medical contract between defendant Dr.
Keaton and North Management Training Corporation for the medical treatment of
inmates at North Central Correctional Complex. In their response in opposition to the
motion to compel, defendants failed to make any substantive response with respect to
this discovery request or to demonstrate that the burden of the proposed discovery
outweighs its likely benefit.
Plaintiff James J. Prince’s February 13, 2014 second motion to compel discovery
requests (doc. 53) is GRANTED. Defendants are DIRECTED to permit plaintiff to
inspect his medical records and review, and if necessary, supplement, their responses to
plaintiff’s requests within fourteen (14) days of the date of this Order. If defendants
locate responsive documents but conclude disclosure of such documents would be
detrimental, they should file a protective order in accordance with Rule 26(c) of the
Federal Rules of Civil Procedure.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
Order, or part thereof, in question and the basis for any objection thereto. The District
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Judge, upon consideration of the motion, shall set aside any part of this Order found to
be clearly erroneous or contrary to law.

s/Mark R. Abel
United States Magistrate Judge

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