Sonia v. Department of Corrections et al

Filing 54

ORDER denying plaintiff's 28 Motion to Add Defendants; denying plaintiff's 31 Motion for a Physical and Mental Examination; granting defendants' 39 Motion for Protective Order; denying plaintiff's 41 Motion to Compel D iscovery; denying plaintiff's 46 Motion for Protective Order; denying plaintiff's motion for court appointed counsel (Dkt. 42 ), signed by Hon. James P. Donohue. **7 PAGE(S), PRINT ALL**(Brett Sonia, Prisoner ID: 390444)(SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MS. BRETT (BROOKE) SONIA,
Plaintiff,

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ORDER RE: PENDING MOTIONS

v.

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Case No. C17-955-JLR-JPD

DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

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

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action that defendants have violated her Eighth Amendment rights by failing to properly treat her

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gender dysphoria. This matter comes before the Court at the present time on the following

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motions: (1) plaintiff’s motion to add defendants; (2) plaintiff’s motion for a physical and

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mental health examination; (3) defendants’ motion for protective order; (4) plaintiff’s motion to

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compel discovery; (5) plaintiff’s request for protection order; and, (6) plaintiff’s motion for court

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appointed counsel.1 The Court, having reviewed the pending motions, all briefing filed in

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relation to those motions, and the balance of the record, hereby finds and ORDERS as follows:

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Also pending at this time is defendants’ motion for summary judgment which will be addressed

separately.

ORDER RE: PENDING MOTIONS
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(1)

Plaintiff’s motion to add defendants (Dkt. 28) is DENIED. Plaintiff’s motion is,

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in effect, a motion to amend her complaint. Plaintiff indicates in her motion that she is seeking

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to add new defendants and new claims to this action. However, plaintiff failed to submit with

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her motion a proposed amended complaint. A motion to amend must be accompanied by a

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proposed amended complaint before it will be considered by the Court. Plaintiff’s motion is

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therefore procedurally deficient and must be denied. The Court also notes that the defendants

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and claims plaintiff seeks to add by way of the instant motion are only tangentially related to the

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Eighth Amendment claims which are before the Court in this action and would be more properly

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raised in a separate action.

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(2)

Plaintiff’s motion for a physical and mental examination (Dkt. 31) is DENIED.

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Plaintiff seeks an order under Fed. R. Civ. P. 35 requiring that she be afforded an independent

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medical examination by a “specialist” who can determine the necessary treatment(s) for her

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gender dysphoria. Plaintiff claims that only a complete examination by an independent specialist

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will enable the Court to make a proper determination on her constitutional claims. However,

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plaintiff’s reliance on Rule 35 is misplaced. Rule 35(a) gives a court discretion to order “a party

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whose mental or physical condition . . . is in controversy to submit to a physical or mental

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examination. . . .” Such an order “may be made only on motion for good cause and on notice to

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all parties and the person to be examined.” Fed. R. Civ. P. 35(a)(2). Rule 35 does not permit a

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court to appoint an expert to examine a party seeking an examination of herself. See Gannaway

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v. Prime Care Medical, Inc., 150 F.Supp.3d 511, 523 n.4 (E.D. Pa. 2015). As plaintiff is

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essentially seeking an expert opinion to support the claims asserted in this action, Fed. R. Civ. P.

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35 provides no basis for relief and her motion must therefore be denied.

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ORDER RE: PENDING MOTIONS
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(3)

Defendants’ motion for protective order (Dkt. 39) is GRANTED. Defendants

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filed their motion for protective order in conjunction with their motion for summary judgment,

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and they request therein that discovery in this matter be stayed pending the Court’s ruling on

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their dispositive motion in which they raise a defense of qualified immunity. Defendants

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indicate in their motion that they have responded to one set of requests for production

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propounded by plaintiff, but they have not responded to sets of interrogatories directed to each

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individual defendant.

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A district court has wide discretion in controlling the scope and extent of discovery.
Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). A court may, upon a showing of good

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cause, deny or limit discovery “to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense . . . .” Fed. R. Civ. P. 26(c). The Supreme Court has

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repeatedly held that when qualified immunity is raised as a defense by government officials, the

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question should be resolved at the earliest possible stage of litigation and discovery should be

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stayed until the threshold issue of immunity is resolved. Harlow v. Fitzgerald, 457 U.S. 800,

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816–818, (1982) (“bare allegations of malice should not suffice to subject government officials

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either to the costs of trial or to the burdens of broad-reaching discovery”); see also Anderson v.

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Creighton, 483 U.S. 635, 653 n.6 (1987).

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Plaintiff opposes defendants’ motion for protective order, arguing generally that

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defendants have a duty to furnish her with the requested discovery. (Dkt. 42.) Plaintiff has also

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filed a response to defendants’ summary judgment motion in which she again argues generally

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that she has a right to receive discovery. (See id.) However, plaintiff does not specifically

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identify in her papers what additional discovery she believes is necessary in order to respond to

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ORDER RE: PENDING MOTIONS
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the arguments set forth by defendants in their pending summary judgment motion. Given that

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defendants have raised a qualified immunity defense, and that plaintiff has not demonstrated that

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she requires additional discovery to respond to defendants’ summary judgment motion, the Court

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deems it appropriate to stay discovery pending resolution of that motion. If that motion is not

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resolved in defendants’ favor, the Court will establish a new discovery deadline.

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(4)

Plaintiff’s motion to compel discovery (Dkt. 41) is DENIED. Plaintiff, by way of

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the instant motion, seeks to compel defendants to respond to interrogatories and requests for

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production directed to them in December 2017. As explained above, this Court has concluded

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that discovery should be stayed pending resolution of defendants’ summary judgment motion.

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Plaintiff’s motion to compel is therefore moot.
(5)

Plaintiff’s request for protection order (Dkt. 46) is DENIED. Plaintiff asserts that

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defendants have improperly disclosed her medical records to the public and she seeks

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compensation for this alleged improper conduct as well as an order directing defendants not to

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disclose any further medical information regarding her. Plaintiff claims, in particular, that the

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fact that she is transgender is confidential medical information which should not have been

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disclosed. Defendants oppose plaintiff’s motion, arguing that she has put her medical condition

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at issue and has therefore waived any privacy related to her medical care.

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The Ninth Circuit has recognized a constitutional right to the privacy of medical

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information in some contexts, but courts have generally held that the right to privacy in medical

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records is waived when a plaintiff puts his or her medical condition at issue. See, e.g., Doe v.

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Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 837 F.Supp.2d 1145, 1157-58

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(D. Idaho 2011); Equal Employment Opportunity Commission v. Cheesecake Factory, Inc., 2017

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ORDER RE: PENDING MOTIONS
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WL 3887460, *7-8 (W.D. Wash. Sept. 6, 2017). Plaintiff has clearly put her medical condition

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at issue in this case and has therefore waived her right to privacy in medical records relating to

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her gender dysphoria.

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To the extent plaintiff claims that disclosure of her medical records in defendants’

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summary judgment papers violates her rights under the Health Insurance Portability and

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Accountability Act (HIPAA), her claim is also without merit as HIPAA regulations allow a

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covered entity to “use or disclose protected health information for treatment, payment, or health

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care operations.” 45 C.F.R. § 164.506(a). Health care operations include “[c]onducting or

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arranging for medical review, legal services, and auditing functions.” 45 C.F.R. § 164.501.

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Under these provisions, a covered entity may use protected health information to defend itself

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against a lawsuit by a patient. See Health and Human Services, May a Covered Entity Use of

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Disclose Protected Health Information for Litigation (Jan. 7, 2005), available at

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https://www.hhs.gov/hipaa/for-professionals/faq/704/may-a-covered-entity-use-protected-health-

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information-for litigation/index.html. Plaintiff fails to demonstrate that there was anything

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improper about defendants’ submission of medical records in support of their pending summary

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judgment motion which are clearly relevant to the claims asserted by plaintiff in her second

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amended complaint.

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The Court is compelled to note that not only has plaintiff established no legal basis for

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her request for an order of protection, her request is arguably frivolous. Plaintiff’s primary

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expressed concern about defendants’ disclosure of her medical records is that defendants have

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made it public knowledge that she is transgender, which she claims exposes her to the possibility

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of future assaults by other inmates. (See Dkt. 46 at 3.) However, it is disingenuous for plaintiff

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ORDER RE: PENDING MOTIONS
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to complain that defendants have exposed her to a risk of harm by making this information part

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of the public record when she clearly states in her pleadings that she suffers from gender

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dysphoria. (See Dkts. 5-1, 5-2, 15.) It is also noteworthy that plaintiff appears to have re-

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submitted the medical records of which she now complains in conjunction with her response to

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defendants’ summary judgment motion. (See Dkt. 42 at 31-41.) Plaintiff’s motion lacks merit

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and must therefore be denied.

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(6)

Plaintiff’s motion for court appointed counsel (Dkt. 42 at 60-65) is DENIED.

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There is no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although

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the Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party proceeding in

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forma pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984);

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Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional circumstances

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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plaintiff to articulate her claims pro se in light of the complexity of the legal issues involved.

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Wilborn, 789 F.2d at 1331.

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Plaintiff asserts in her motion for court appointed counsel that the issues in this case are

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complex and that she currently has mental health issues which interfere with her ability to litigate

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this case. Plaintiff also claims that her imprisonment hinders her ability to access other offender

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witnesses who are material to her case. However, plaintiff, in her various submissions, many of

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which are quite recent, has demonstrated ample ability to articulate her claims and arguments

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without the assistance of counsel. With respect to plaintiff’s alleged lack of access to offender

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witnesses, plaintiff makes no showing that such witnesses would be able to provide evidence

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ORDER RE: PENDING MOTIONS
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relevant to the pending summary judgment motion, a motion which is currently ripe for review

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and to which plaintiff has already filed a response. Finally, the Court notes that though it has not

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yet conducted an in-depth review and analysis of defendants’ summary judgment motion, that

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motion raises substantial questions regarding the likelihood that plaintiff will succeed on the

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merits in this action. In sum, plaintiff has not demonstrated that this case involves exceptional

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circumstances which warrant the appointment of counsel, and the instant motion must therefore

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be denied.

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(7)

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

defendants, and to the Honorable James L. Robart.
DATED this 15th day of March, 2018.

A

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JAMES P. DONOHUE
United States Magistrate Judge

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ORDER RE: PENDING MOTIONS
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