Mulligan v. Kenney et al

Filing 68

ORDER denying 62 Motion to Produce; Motions terminated: 62 MOTION to Produce filed by Bruce Daniel Mulligan. A COPY OF THIS ORDER HAS BEEN MAILED TO PLAINTIFF TODAY. Signed by Hon. Mary Alice Theiler.(GB)

01 02 03 04 05 06 07 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) Plaintiff, ) v. ) ) DR. DAVID KENNEY, et al., ) ) Defendants. ) ____________________________________ )

08 BRUCE DANIEL MULLIGAN, 09 10 11 12 13

CASE NO. C09-842-RSL-MAT ORDER DENYING PLAINTIFF'S MOTION TO PRODUCE MEDICAL RECORDS AT DEFENDANTS' EXPENSE

This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff alleges in his

14 amended complaint that defendants have been deliberately indifferent to his medical needs in 15 violation of the Eighth and Fourteenth Amendments, and have violated the Americans with 16 Disabilities Act, by denying his request to be assigned a single cell in order to accommodate his 17 "shy bladder." (See Dkt. No. 44 at 3.) This matter is now before the Court on plaintiff's 18 motion to produce medical records at defendants' expense. (Dkt. No. 62.) At issue is 19 whether defendants should be required to provide plaintiff with copies of his entire 3,000 page 20 medical file or whether plaintiff should be required to review his medical file, at no cost, at his 21 place of incarceration. 22 This is the second time the motion has come before the Court. The first time the Court ORDER DENYING PLAINTIFF'S MOTION TO PRODUCE MEDICAL RECORDS AT DEFENDANTS' EXPENSE - 1

01 considered plaintiff's motion, it concluded that the institutional process which allowed plaintiff 02 to review his medical file in only 30 minute increments every one to two weeks was not 03 adequate to provide plaintiff reasonable access to the documents he claimed to need for 04 purposes of this litigation. (See Dkt. No. 65.) However, the Court declined at that time to 05 order defendants to produce plaintiff's entire medical file because it appeared as though 06 accommodations could conceivably be made at plaintiff's institution to expedite the review 07 process and eliminate the need to produce the entire file. (Id. at 3.) Defendants were given 08 two weeks to consider how they wished to proceed and to report back to the Court. (Id. at 4.) 09 On November 9, 2010, defendants filed a supplemental response to plaintiff's motion to

10 produce his medical records. (Dkt. No. 66.) Defendants advised the Court therein that they 11 had elected to allow plaintiff more time to review his records and had made arrangements with 12 plaintiff's institution for him to have a four hour block of time to review his medical records 13 rather than the 30 minutes usually allowed. (Dkt. No. 66 at 2.) Defendants further advised 14 the Court that when plaintiff was presented with the option of setting a four hour block of time 15 to review his records, he replied that that was not what he wanted to do and that he was waiting 16 for a response back from the Court. (See id. and Ex. 2 at 2.) 17 On November 16, 2010, plaintiff filed a supplemental reply brief in support of his

18 request for production of his medical records. (Dkt. No. 67.) Plaintiff argues therein that the 19 four hour block of time offered by defendants is not satisfactory because it still does not provide 20 him enough time to read, and take notes on, 3,000 pages of medical records. (Id. at 2.) He 21 further argues that he will need copies of the files to use as exhibits and that his handwritten 22 notes of his medical records will not suffice. (Id. at 3.) Finally, plaintiff argues that he is ORDER DENYING PLAINTIFF'S MOTION TO PRODUCE MEDICAL RECORDS AT DEFENDANTS' EXPENSE - 2

01 currently engaged in a process of trying to find a medical doctor who is a specialist in 02 Nephrology and that a doctor will require a complete copy of his medical records in order to 03 assist him. (Dkt. No. 67 at 3.) 04 The Court, having reviewed the most recent submissions of the parties, is not persuaded

05 that defendants should be required to produce plaintiff's entire medical file at their own 06 expense. Defendants have made an effort to accommodate plaintiff's need for more time to 07 review his medical file and plaintiff has flatly rejected that effort. While plaintiff claims that 08 the four hour block of time offered by defendants is not sufficient to read and take notes on all 09 3,000 pages of his medical file, it would provide plaintiff with a substantial opportunity to 10 identify, and request copies of, documents he deems relevant to this litigation. 11 Moreover, it appears from the record that plaintiff has already received copies of a

12 significant number of pages of his medical file. Defendants note that they have produced 13 approximately 100 pages of plaintiff's medical records in response to earlier discovery 14 requests. (Dkt. No. 66 at 2.) Additionally, defendants note that plaintiff reviewed his medical 15 file on two occasions in 2009, and again on September 2, 2010, and has made copies of 16 approximately 55 pages of his file. (Id. at 2 and Ex. 2 at 2.) In light of the progress plaintiff 17 has apparently already made in reviewing his file, and in light of the fact that copies of a 18 substantial number of pages of the file have already been provided to plaintiff, the 19 accommodation offered by defendants appears reasonable. 20 21 Accordingly, the Court does hereby ORDER as follows: (1) Plaintiff's motion to produce his medical record at defendant's expense (Dkt.

22 No. 62) is DENIED; and ORDER DENYING PLAINTIFF'S MOTION TO PRODUCE MEDICAL RECORDS AT DEFENDANTS' EXPENSE - 3

01

(2)

The Clerk is directed to send copies of this Order to plaintiff, to counsel for

02 defendants, and to the Honorable Robert S. Lasnik. 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER DENYING PLAINTIFF'S MOTION TO PRODUCE MEDICAL RECORDS AT DEFENDANTS' EXPENSE - 4 DATED this 22nd day of December, 2010.

A

Mary Alice Theiler United States Magistrate Judge