Baxter v. State of Tennessee et al

Filing 180

ORDER denying 138 Motion for Re-Opening Discovery; affirming the Magistrate Judge's Order; denying 141 Motion for Sanctions to Strike Medical Records; denying 143 Motion for Leave to File Amended Complaint; granting in part and denying in part 144 Motion for Sanctions and Motion to Compel; denying 146 Motion for Order to Show Cause; denying 147 Motion for Revision ; denying [148,149] Motion to Amend/Correct Motion for Re-Opening Discovery. Signed by Judge S. Thomas Anderson on 9/12/14. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
TIMOTHY AARON BAXTER,

)
)
Plaintiff,
)
)
v.
)
No. 10-2667-STA-tmp
)
STATE OF TENNESSEE, et al.,
)
)
Defendants.
)
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR REOPENING DISCOVERY
ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS TO STRIKE MEDICAL
RECORDS
ORDER AFFIRMING THE MAGISTRATE JUDGE’S ORDER
ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT
ORDER GRANTING IN PART, DENYING IN PART MOTION FOR SANCTIONS OR
IN THE ALTERNATIVE TO COMPEL RESPONSES
ORDER DENYING MOTION FOR ORDER TO SHOW CAUSE
ORDER DENYING MOTIONS TO AMEND/CORRECT MOTION FOR REOPENING
DISCOVERY
______________________________________________________________________________
Before the Court are Plaintiff Timothy Aaron Baxter’s Motion for Reopening Discovery
(ECF No. 138) filed on June 24, 2014; Objections to the Magistrate Judge’s Order Denying his
Motions for Revision (ECF No. 139); Motion for Sanctions to Strike Medical Records (ECF No.
141) filed on June 27, 2014; Motion for Leave to Amend Complaint (ECF No. 143) filed on June
30, 2014; Motion for Sanctions or in the Alternative Motion to Compel Responses (ECF No. 144)
filed on July 1, 2014; Motion for Order to Show Cause (ECF No. 146) filed on July 9, 2014; Motion
for Revision (ECF No. 147) filed on July 16, 2014; and Motion to Amend/Correct Motion for
Reopening Discovery (ECF No. 148, 149) filed on July 21 and July 28, 2014. Defendants have filed
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responses in opposition to the Motions. The Court’s rulings on Plaintiff’s Motions are set forth
below.
BACKGROUND
On September 9, 2010, Plaintiff filed a pro se Complaint pursuant to 42 U.S.C. § 1983 for
violations of his constitutional rights. According to the pleadings, on September 11, 2009, Plaintiff
was incarcerated at the West Tennessee State Penitentiary and was traveling in a truck driven by
Officer Mallory. When Plaintiff complained to Officer Mallory that he was driving recklessly,
Officer Mallory allegedly struck Plaintiff in the head with a radio. The Complaint alleges that
Officer Mallory and Officer Robert Moffatt then began to beat Plaintiff to the ground and that
Officer Moffatt struck Plaintiff with an ax handle. This case was transferred to the undersigned for
all further proceedings on October 2, 2013. A trial is set for October 29, 2014.
ANALYSIS
I. Motions for Re-Opening Discovery
In his Motion for Reopening Discovery (ECF No. 138), Plaintiff seeks production of all
medical records in the possession of the Tennessee Department of Corrections. According to
Plaintiff, some of these records are at odds with the records of a Dr. Cobb who apparently treated
Plaintiff for some of his alleged injuries in 2010. Plaintiff states that he obtained in the normal
course of discovery only records covering his treatment through July 2012. Plaintiff describes the
records he requests as newly discovered evidence, which is relevant to the issues for trial in this case.
Defendants oppose Plaintiff’s Motion because the discovery deadline passed on April 8, 2013.
Defendants construe Plaintiff’s description of newly discovered medical records to refer to those of
Dr. Cobb from May 2010. Defendants contend that Plaintiff could have obtained Dr. Cobb’s records
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at any time without propounding formal discovery.
The Court holds that Plaintiff has not shown good cause to re-open the discovery period.
Federal Rule of Civil Procedure 16(b)(3) requires the Court to enter a scheduling order and set a time
limit for certain events, including discovery. The final deadline for discovery set in this case was
April 8, 2013. Although Rule 16(b)(4) allows for case management deadlines to be extended, the
Court will extend the deadlines only for good cause. Plaintiff has failed to show any cause for reopening discovery at this late stage of the proceedings. Therefore, Plaintiff’s request to re-open
discovery must be denied.
Plaintiff does mention the existence of medical records that constitute newly discovered
evidence. Although Defendants understand these records to be records of Plaintiff’s treating
physician Dr. Cobb, it appears to the Court that Plaintiff actually seeks medical records that have
come into existence since July 2012 and are under the control of the Department of Corrections.
Rule 26(e) requires every party to supplement any required disclosure or discovery response
whenever “additional or corrective information has not otherwise been made known to the other
parties during the discovery process.” Local Rule of Court 26.1(d) requires parties to supplement
all discovery responses no later than 30 days prior to trial, which is set in this case for October 29,
2014. To the extent that Plaintiff is simply seeking production of “additional” medical records
created since July 2012, Defendants are ordered to supplement their discovery disclosures and
responses and produce all of Plaintiff’s medical records dating from July 2012 to the present.
Defendants’ supplemental disclosures are due by September 29, 2014.

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II. Objections to the Magistrate Judge’s Order
In his Objections (ECF No. 139) to the Magistrate Judge’s Order Denying Motions for
Revision, Plaintiff requests that the Court review a determination of the Magistrate Judge. On June
12, 2014, the Magistrate Judge entered an order denying three separate motions for revision filed by
Plaintiff. Plaintiff had previously raised the same issues in other motions, which the Magistrate
Judge had denied and this Court had affirmed on review. The Magistrate Judge concluded that
Plaintiff’s motions did not set out any new facts or legal authority to support Plaintiff’s request for
revision or reconsideration. The Magistrate Judge construed one of Plaintiff’s motions for revision
as a motion to amend his complaint and name another correctional officer as a defendant. The
scheduling order’s deadline for amending pleadings was November 25, 2012. Plaintiff stated that
he learned of the officer’s identity in August 2013 but did not file a motion to add the officer as a
party until March 2014. The Magistrate Judge held that Plaintiff could not demonstrate good cause
for his failure to move to add the officer sooner. In Plaintiff’s objections to the Magistrate Judge’s
decision, Plaintiff cites a number of other instances of delay in the case and argues that each example
was attributable to Defendants, not himself. As such, Plaintiff asks the Court to set aside the
Magistrate Judge’s order.
The Court considers Plaintiff’s legal objections to the Magistrate Judge’s order under a
contrary to law standard,1 meaning “the Court may overturn any conclusions of law which contradict
or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.”2

1

United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)). See also 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
2

Doe v. Aramark Educ. Res., Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (internal
quotation marks and citations omitted). See also 32 Am. Jur. 2d Federal Courts § 143 (2008)
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While Plaintiff argues in some detail about delays in the orderly progress of his case and charges
Defendants with those delays, Plaintiff has failed to acknowledge that he waited several months
before raising the identify of Officer Mawby with the Court. The Court finds no error in the
Magistrate Judge’s holding that Plaintiff had not acted diligently to amend his pleadings sooner. The
Sixth Circuit has described a party’s diligence in meeting case management deadlines as “the
primary measure of Rule 16’s good cause standard.”3 Therefore, the Magistrate Judge’s order is
AFFIRMED, and Plaintiff’s objections to the Magistrate Judge’s order are overruled.

III. Motion for Sanctions to Strike Medical Records and Motion for Order to Show Cause
In his Motion for Sanctions (ECF No. 141), Plaintiff moves for a court order sanctioning
Defendants for obtaining and filing on the record Plaintiff’s medical records relating to treatment
Plaintiff received from Dr. Cobb. Plaintiff argues that Defendants subpoenaed the records without
first obtaining a signed HIPAA release from Plaintiff authorizing their disclosure. Plaintiff further
argues that Defendants improperly filed copies of the records on the docket in this case and did not
file the records under seal. Plaintiff requests that the Court strike the medical records from the
docket and impose “appropriate” sanctions against Defendants.
Defendants have responded in opposition. Defendants do not object to Plaintiff’s request that
the Court strike the medical records from the docket. Defendants do point out that the records were
filed in a redacted form. Defendants also deny that they received the records unlawfully. Defendants

(“A magistrate judge’s order is contrary to law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure”).
3

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005) (quotation
omitted).
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argue that the records do not contain any private medical information Plaintiff himself has not
already disclosed in the case. The records are also relevant to Plaintiff’s injury claims in this suit.
As such, Defendants contend that the Motion for Sanctions should be denied. In his Motion for
Order to Show Cause (ECF No. 146), Plaintiff argues that the Court should require Defendants to
show with greater particularity what steps they took to obtain Plaintiff’s medical records lawfully.
In response to the Motion for Order to Show Cause, Defendants argue that they properly subpoenaed
Plaintiff’s medical records under federal law by also giving Plaintiff notice of the subpoena and an
opportunity to object.4 Plaintiff did not object or take any steps to have the subpoena quashed.
The Court finds that it need not reach the issue of how the medical records were obtained or
whether Defendants acted properly in obtaining them. The parties agree that striking the records
would cure any prejudice or address any privacy concerns raised by Plaintiff. Rather than strike the
records outright, the Court orders the Clerk of Court to place the records at ECF No. 88 under seal.
Otherwise, Plaintiff’s Motion for Sanctions is DENIED.

IV. Motion for Leave to Amend Complaint
In his Motion for Leave to File Amended Complaint (ECF No. 143), Plaintiff only explains
that the proposed amended complaint will “correct insufficiently stated claims.” Plaintiff has

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Defendants rely on 45 C.F.R. § 164.512, which states as follows: “A covered entity may
disclose protected health information in the course of any judicial or administrative proceeding
[i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied
by an order of a court or administrative tribunal, [i]f the covered entity receives satisfactory
assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the
information that reasonable efforts have been made by such party to ensure that the individual
who is the subject of the protected health information that has been requested has been given
notice of the request.” 45 C.F.R. § 164.512(e)(1)(ii)(A).
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attached a copy of his proposed amended pleadings to his Motion. Defendants have responded in
opposition. Defendants construe the proposed amended complaint to include new state law causes
of action as well as allegations of criminal conduct. Defendants oppose the Motion because the
deadline for amending pleadings and completing discovery has long passed. Any amendment to the
pleadings at this stage of the case would be prejudicial to Defendants. Therefore, the Court should
not allow Plaintiff to amend.
As previously noted, Rule 16(b) requires the entry of a scheduling order and among the
mandatory deadlines listed in the Rule is a deadline for amending pleadings. The deadline for
amending pleadings established in this case was November 25, 2012. Plaintiff’s Motion comes more
than 19 months after the deadline for amending pleadings. Plaintiff has cited no new evidence or
any other previously unavailable information which he now proposes to include in his amended
pleadings. Nor has Plaintiff shown any cause for his failure to amend his complaint before now on
the eve of trial. Plaintiff only states without any explanation that the proposed amended complaint
will “correct insufficiently stated claims.” Permitting Plaintiff to amend so close to trial and long
after the close of discovery would unfairly prejudice Defendants. The Court holds then that
Plaintiff’s Motion is now untimely and must be DENIED.

V. Motion for Sanctions or in the Alternative to Compel
In his Motion for Sanctions or in the alternative Motion to Compel (ECF No. 144), Plaintiff
states that he propounded requests for admission on Defendants on May 19, 2014, and that
Defendants have failed to respond. Plaintiff requests that the Court “identify the offending conduct
with reasonable specificity,” sanction Defendants under Rule 37(c)(2) for their failure to respond,
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and deem all of the facts in the requests for admission as admitted or in the alternative order
Defendants to respond.5 In their response in opposition, Defendants argue that Plaintiff did not serve
the requests before the discovery deadline passed, and so Plaintiff’s requests are untimely.
Federal Rule of Civil Procedure 36 governs requests for admissions. The Court’s initial
scheduling order required that “[a]ll discovery pursuant to Federal Rules of Civil Procedure 26
through 35 and Rule 37 shall be completed” by the discovery deadline. The scheduling order clearly
exempted requests for admission under Rule 36 from the general discovery deadline. Therefore,
Plaintiff’s Motion is GRANTED in part. Defendants are ordered to respond to Plaintiff’s requests
for admissions within fourteen (14) days of the entry of this order. Plaintiff has not shown why the
Court should impose sanctions under Rule 37(c)(2), which states that sanctions are mandatory “[i]f
a party fails to admit what is requested under Rule 36 and if the requesting party later proves a
document to be genuine or that matter true.”6 Clearly, sanctions under this paragraph are premature.
Plaintiff has not proven any matter true, and the Court is ordering Defendants to respond to the
requests for admissions. Plaintiff’s request for sanctions and his alternative request to deem the
matters admitted are therefore DENIED.

VI. Motion for Revision
In his Motion for Revision (ECF No. 147), Plaintiff asks the Court to reconsider its order
denying his motion for medical examination entered on June 5, 2014. Plaintiff sought a court order
to have him transported to a physician’s office in Jackson, Tennessee, for the purpose of undergoing

5

Pl.’s Mot. for Sanctions 2.

6

Fed. R. Civ. P. 37(c)(2).
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an independent medical examination. The Court denied Plaintiff’s motion for several reasons. First,
Plaintiff filed the motion only ten days before his appointment was scheduled. The Court found that
Defendants were left with insufficient time under the Local Rules of Court to file a response. By the
time the Court ruled on the Motion, the appointment had passed. Second, Plaintiff filed his motion
after the close of discovery. Perhaps most importantly, Plaintiff had not shown that Rule 35
provided the correct procedure for his request for medical examination. As such, the Court denied
Plaintiff’s motion.
Plaintiff now argues that the Court should reconsider. Plaintiff asserts that opposing counsel
was on notice of the appointment even before Plaintiff filed his motion. Plaintiff had addressed
correspondence about the examination to counsel for Defendants some weeks before he filed his
motion. Even then Defendants failed to make a timely response to his motion, and the Court had to
order Defendants to respond. Plaintiff further claims that he was placed on “arbitrary lockdown”
while his motion was being briefed and was denied the legal resources he needed to prepare and file
his reply brief in a timely fashion. Plaintiff argues at length that his injuries are highly relevant to
the issues in this case and that he continues to experience pain from his injuries. Therefore, Plaintiff
requests that the Court allow his medical examination and reset the trial date.
The Court holds that reconsideration of its previous order is not warranted. While Plaintiff
has elaborated on the relevance of the medical examination, Plaintiff’s Motion for Revision has not
addressed the Court’s earlier conclusions that the discovery deadline had passed and that relief under
Rule 35 was not available.7 These determinations were and remain dispositive of Plaintiff’s request
7

Plaintiff seems to argue that he was deprived of access to legal materials and that this
deprived him of the opportunity to prepare a reply brief. Plaintiff actually filed a reply brief
(ECF No. 135), which was docketed the day after the Court entered its order denying the motion
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for a medical examination. Therefore, the Motion for Revision and the accompanying request to
continue the trial date are DENIED.

VII. Motions to Amend/Correct Motion for Reopening Discovery
In his Motions to Amend/Correct Motion for Reopening Discovery (ECF Nos. 148 and 149),
Plaintiff requests that the Court allow him to amend his previously filed Motion for Reopening
Discovery to include additional requests for production of certain documents. Specifically, Plaintiff
seeks to provide or to obtain the following as part of a reopened discovery period: (1) an executed
authorization for the release of Plaintiff’s health information from TDOC; (2) recordings of
interviews with Defendants taken during TDOC’s internal investigation of the incident; (3) original
photographs of Plaintiff’s injuries sustained during the alleged incident, which were taken as part
of TDOC’s internal investigation; (4) a copy of the transcripts and video recording of Plaintiff’s
deposition; and (5) a copy of Defendant’s liability insurance agreement with TDOC. Plaintiff states
that the documents are required for his trial preparation.
Defendants have responded in opposition to Plaintiff’s requests. Defendants continue to
argue generally that the discovery period is closed and that the Court should not reopen discovery
so close in time to the trial. As for Plaintiff’s request to submit a signed release for his medical
records, Defendants assert that it is unnecessary for Plaintiff to sign a release. Plaintiff can review
his own records at Northwest Correctional Facility. Defendants next state that no recorded
for medical examination. Even if Plaintiff had filed his reply before the Court rendered its
decision, the Court would not have considered it. Plaintiff did not comply with the Local Rules
and seek leave to file the reply. See Local R. 7.2(c) (allowing reply briefs only by leave of court
and where the party files a motion for leave to submit a reply within seven days of service of the
response brief).
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interviews with Defendants exist and are not in Defendants’ possession. Likewise, Defendants are
not in possession of any original photographs of Plaintiff’s injuries. Defendants only have color
photocopies, which they have provided to Plaintiff during the regular discovery period. Defendants
also object to producing a copy of the transcript or video to Plaintiff. Defendants argue that they are
not required to produce a copy of the transcript or video to Plaintiff and that Plaintiff has had the
opportunity to obtain his own copy. Finally, Defendants respond that no such liability insurance
agreement exists here due to the fact that the state of Tennessee is self-insured.
The Court holds that Plaintiff’s Motions are not well-taken. For the reasons already given,
the Court denies Plaintiff’s request to re-open discovery in this case. The Court has already held that
no cause exists for reopening discovery at this juncture of the case. To the extent that Plaintiff’s
Motions to Amend/Correct Motion for Reopening Discovery are derivative of the underlying Motion
for Reopening Discovery, the Motions are DENIED. Even on the merits, Plaintiff is not entitled to
most of the additional discovery he seeks. Plaintiff has shown no cause for requiring Defendants to
provide him with a free copy of the transcript or video recording of Plaintiff’s deposition. Other
courts to have addressed the issue have held that even plaintiff proceeding in forma pauperis is not
entitled to free deposition transcripts, much less free video recordings of a deposition.8 Accordingly,
the request for a copy of the deposition is denied. Otherwise, the Court finds it unnecessary for
Plaintiff to execute a signed release for his medical records. And as for the request for photographs
or recorded interviews with Defendants, it appears that no such evidence exists. Therefore,
Plaintiff’s requests for discovery are DENIED.
8

Tabron v. Grace, 6 F.3d 147, 158–60 (3d Cir. 1993); Rivera v. DiSabato, 962 F. Supp.
38, 40 (D.N.J.1997) (holding that in forma pauperis prisoner was not entitled to a free transcript
of his deposition in a civil rights suit).
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With respect to Plaintiff’s medical records, the Court restates its previous instruction:
Defendants are ordered to supplement their discovery disclosures and responses and produce all of
Plaintiff’s medical records dating from July 2012 to the present. Defendants’ supplemental
disclosures are due by September 29, 2014.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: September 12, 2014.

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