Watkins v. Baum et al

Filing 94

ORDER Granting 93 Motion for Reconsideration of 89 Order Denying Motion to Compel; and Denying Plaintiff's 83 MOTION to Compel, signed by Magistrate Judge Karen L Strombom. (GMR- cc: pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JERMAINE D. WATKINS,

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Plaintiff,

No. C11-5494 RJB/KLS

v.
CATHERINE M. BAUM, ARNP.,
ELIZABETH G. SUITER, FMD,
MICHAEL R. ELLEN, UROLOGIST/
SURGEON, MIKE WATKINS, HCM,
STEVE HAMMOND, MD,
MUHAMMAD A. KHURSHID, MD,
TAMARA J. ROWDEN GPM,

ORDER GRANTING MOTION FOR
RECONSIDERATION AND DENYING
MOTION TO COMPEL

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Defendants.
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Before the Court is Plaintiff’s Motion for Reconsideration of Order Denying Motion to

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Compel. ECF No. 93. In its Order dated December 26, 2012, the Court denied Plaintiff’s

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motion to compel because Plaintiff did not include a certification that he conferred with counsel

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for Defendants before he filed his motion. ECF No. 89. In his motion for reconsideration,

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Plaintiff states and certifies as to his attempts to confer with counsel for Defendants on three

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occasions. ECF No. 93, p. 1. These communications consisted of letters wherein the parties

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agreed to extend Defendants’ response time. Id. Plaintiff states that his third letter was sent to

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counsel after the agreed upon extension to respond had expired. He states that counsel never

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responded to this letter. Id.

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ORDER- 1

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A party should, in good faith, confer or attempt to confer with a party failing to make

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disclosures in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(1). CR

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37(a)(1)(A) states:

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A good faith effort to confer with a party or person not making a disclosure or
discovery requires a face-to-face meeting or a telephone conference. If the court
finds that counsel for any party, or a party proceeding pro se, willfully refuses to
confer, fails to confer in good faith, or fails to respond on a timely basis to a
request to confer, the court may take action as stated in GR 3 of these rules.

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The parties’ letter exchanges do not constitute a “good faith effort to confer” as noted

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above. However, based on Plaintiff’s representation that his last attempt, in October 2012, to

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communicate with Defendants went unanswered, the Court will reconsider its decision to deny

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Plaintiff’s motion to compel and will review the Plaintiff’s motion on the merits.

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DISCUSSION

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The Federal Rules of Civil Procedure provide that “[p]arties may obtain discovery
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regarding any non-privileged matter that is relevant to any party’s claim or defense – including

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the existence, description, nature, custody, condition, and location of any documents or other

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tangible things and the identity and location of persons who know of any discoverable matter.”

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Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at the trial if the discovery

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appears reasonably calculated to lead to the discovery of admissible evidence. Id.

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When a party fails to answer an interrogatory under Rule 33 or fails to permit inspection

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of documents under Rule 34, the requesting party may move the court for an order compelling

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discovery. Fed. R. Civ. P. 37(a)(3). For purposes of such a motion, “an evasive or incomplete

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disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.

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R. Civ. P. 37(a)(4).

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ORDER- 2

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Furthermore, a court must limit the frequency or extent of discovery . . . [when] the

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discovery sought is unreasonably cumulative or duplicative or can be obtained from some other

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source that is more convenient, less burdensome, or less expensive. Fed. R. Civ. P. 26(b)(1)(C).

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Plaintiff asks for an order compelling Defendants Baum, Suiter, Watkins, Hammond, and

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Rowden, to produce for inspection and copying, the following:
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Request 1: The State of Washington licensure to practice that is on file with the

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Department of Corrections. ECF No. 83, p. 1. Defendants respond that health care providers are

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licensed by the Department of Health, the Department of Corrections does not keep copies of

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such licenses, and Mike Watkins and Tamara Rowden are not health care providers. ECF No.

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85, Exhibit 1 (Declaration of Patricia C. Fetterly), p. 2.

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By this request, Plaintiff seeks licensing material that is “on file with the Department of

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Corrections.” Defendants state that the information is not in the Department of Corrections’
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files. No further response to this request is necessary.
Request No. 2: The State of Washington certification (or) registration that is on file with

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the Department of Corrections. ECF No. 83, p. 1. Defendants responded that physicians are

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licensed by the Department of Health, that Health Care Managers such as Mike Watkins are not

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required to be licensed, and that Tamara Rowden was a grievance coordinator and not required to

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have any license. ECF No. 85, Exhibit 1 (Fetterly Decl.), p. 3.

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Defendants have appropriately responded to this request and no further response is
required.

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Request No. 3: The names and addresses of all non-parties identified on the Answer of

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Defendant Ellen at Section VIII Nos. 4 and 8, they may have information relevant to Plaintiff’s

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claims. ECF No. 83, p. 1. Defendants respond that Plaintiff seeks information relating to
ORDER- 3

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Defendant Ellen’s affirmative defenses and Defendant Ellen, who was represented by counsel, is

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no longer a party to this lawsuit. ECF No. 85, Exhibit 1 (Fetterly Decl.), p. 3. Plaintiff’s claims

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against Defendant Ellen were dismissed with prejudice on October 12, 2012. ECF No. 66.

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The Court agrees with Defendants. Within Defendant Ellen’s affirmative defenses are

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included the defenses that Plaintiff’s damages, if any, are the result of “other identified
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defendants or non-parties over whom this answering defendant has no control” and that in the

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event Plaintiff is “awarded damages against this answering defendant, damages should be

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apportioned among all parties and non-parties.” ECF No. 38, p. 7. These defenses are specific

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to Michael Ellen, who is no longer a party to this lawsuit. The remaining defendants cannot be

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ordered to provide the information requested by Plaintiff.

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Request No. 4: The (MAR) Medication Administration Record, for Oxycodone, and

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Ditropan, prescribed by Defendant Ellen, 8-9-07 thru 9-9-07.” ECF No. 83, p. 1. Defendants
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respond that Plaintiff’s institution medical records are always available for his review, at his

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request and that the particular record requested was provided to him. ECF No. 85, Exhibit 1

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(Fetterly Decl.), p. 3.

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Based on Defendants’ representation that this document has already been produced to
Plaintiff, the Court finds that Plaintiff’s request to compel is moot.
Fifth Request: The “Medical Intake Sheet completed on 4-12-12, from Rockwood

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Clinic.” ECF No. 83, p. 1. Defendants respond that they were unable to locate such a record in

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Plaintiff’s Department of Corrections medical file, but have provided copies of the report from

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Rockwood Clinic for April 12, 2012. ECF No. 85, Exhibit 1 (Fetterly Decl.).

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Defendants cannot be compelled to produce documents which they do not possess. No
further response to this request is required.
ORDER- 4

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Accordingly, it is ORDERED:

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(1)

Plaintiff’s motion for reconsideration (ECF NO. 93) is GRANTED.

(2)

Plaintiff’s motion to compel (ECF No. 83) is DENIED.

(3)

The Clerk of the Court shall send a copy of this Order to Plaintiff and to counsel

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for Defendants.
DATED this 14th day of January, 2013.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER- 5