Owens, Allan v. Balow, Gregory et al

Filing 47

ORDER granting plaintiff's 39 Motion for Extension of Time to file a reply in support of his motion to compel; denying plaintiff's 32 Motion to Compel; denying defendant's 38 Motion to Compel. Plaintiff has until August 29, 2016 to sign the releases sought by the defendant. If plaintiff chooses not to sign these medical release forms, defendant may file a motion for sanctions. Signed by Magistrate Judge Stephen L. Crocker on 8/18/2016. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ALLAN DEAN OWENS,
OPINION AND ORDER
Plaintiff,
v.

15-cv-489-bbc

GREGORY BALOW,
Defendant.

Plaintiff Allan Dean Owens, a prisoner at Fox Lake Correctional Institution, is proceeding
on claims that defendant Gregory Balow violated his First and Eighth Amendment rights by
depriving him of sleep, assaulting him and threatening him in response to plaintiff filing
grievances against defendant. Two motions related to discovery issues are pending: plaintiff’s
motion to compel defendant to provide certain documents and electronic materials, and
defendant’s motion for an order requiring the release of certain medical records. I am denying
both of these motions, but am ordering plaintiff to execute the medical releases defendant needs
to secure plaintiff’s medical records.

Plaintiff’s Motion to Compel
Plaintiff requests an order compelling defendant to produce the following materials: (1)
all emails, text messages or electronic communications sent or received by defendant or his fellow
prison guards related to this case; (2) copies of all complaints and grievances filed against
defendant by any prisoners within the last five years; and (3) digital recordings of certain
conversations that took place between plaintiff and his former girlfriend, Polly Newman, on July
5, July 6 and July 8 of 2012. I am denying plaintiff’s motion in all respects.

First, defendant states that he and his lawyer have conducted keyword searches for any
electronic communications related to this lawsuit and that the only responsive documents they
were able to discover are documents protected against disclosure by the attorney-client privilege.
Plaintiff does not contend that this search was insufficient, nor does plaintiff identify any
particular electronic communications that are being wrongfully withheld. Accordingly, plaintiff’s
request for an order compelling the production of these materials is denied as moot.
With respect to plaintiff’s request for copies of all complaints and grievances filed against
defendant over the past five years, defendant states that any such documents have been
produced. Plaintiff does not identify any particular grievance or complaint that is allegedly being
wrongfully withheld other than the grievances he personally filed against defendant, copies of
which plaintiff already possesses. Accordingly, this request is similarly being denied as moot.
Finally, I am denying plaintiff’s request for the digital recordings of his conversations with
Newman on the ground that plaintiff has failed to show that these recordings are relevant to the
issues in this case. See F.R. Civ. P. 26(b)(1) (information is only subject to discovery to the
extent that it is “relevant to any party’s claim or defense and proportional to the needs of the
case”). Plaintiff claims that on the recordings, Newman states that “a deputy gave her money
twice,” among other things. Even assuming that this claim is true, whether and why a deputy
might have given Newman money has no apparent relevance to plaintiff’s claims that defendant
threatened him and deprived him of sleep in response to plaintiff’s exercise of his First
Amendment rights. To the extent that the court can hypothesize that Newman’s statements
might have impeachment value, this is too speculative and there are too many evidentiary
impediments (hearsay, confusion and unfair prejudice to name a few) to require production.

B. Defendant’s Motion to Compel
Plaintiff claims that defendant Balow’s harassment and abuse has interfered with his
ability to sleep, caused him stress, anxiety, hallucinations and suicidal thoughts, and has
contributed to issues with his gallbladder. To defend himself against these claims, defendant
Balow wants copies of medical records maintained by various health care providers in order to
establish that plaintiff’s various health issues pre-date defendant’s alleged misconduct. The
specific medical records at issue are those maintained by the following five providers: (1)
Wisconsin Department of Health Services; (2) Mayo Clinic Health System-Eau Claire Clinic;
(3) Chippewa Valley Hospital and Oakview Care Center, Inc.; (4) Heike Pharmacy; and (5) Dr.
Robert Dohlman.
The aforementioned medical records are protected against disclosure by the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”), so defendant asked plaintiff
to sign a release form authorizing his providers to disclose the records. Plaintiff signed this
release with respect to one provider, the Mayo Clinic Health System, but has refused to sign a
release with respect to the other providers because he contends that any medical records predating his incarceration in Pepin County Jail are irrelevant. Defendant then issued third-party
subpoenas directly to plaintiff’s other providers for whom they have not obtained releases, but
unsurprisingly, these providers have refused to disclose the records out of fear that they would
violate federal law. So, defendant is now asking the court to enter an order requiring these
providers to release plaintiff’s records.
I am denying defendant’s motion because as a matter of policy, this court will not force
a party in a civil case to sign a medical or psychological records release, nor will the court compel
a health care provider to release records over that party’s objection. However, plaintiff cannot

have it both ways: he cannot claim that defendant harmed him and then deny that same
defendant access to health records that may be relevant to the plaintiff’s alleged harm. Records
that pre-date the incidents alleged still are relevant so that the defendant can determine if
plaintiff already had any of the symptoms or conditions that he claims in this lawsuit resulted
from defendant’s behavior. If plaintiff feels strongly enough about the confidentiality of these
records that he will not agree to their disclosure, then this court will honor that decision. The
tradeoff, however, is that the court may dismiss or limit plaintiff’s liability or damages claims to
which the withheld records are relevant. See Fed. R. Civ. P. 37(c) (authorizing court to dismiss
an action or proceeding for failure to obey an order to provide or permit discovery).
I conclude that the records defendant seeks are relevant to plaintiff’s claims and therefore
are subject to discovery. Plaintiff has put his mental and psychological health at issue by
claiming defendant’s conduct has caused him insomnia, hallucinations and other psychological
problems. Records predating his time in Pepin County Jail are relevant because these medical
records might show, or might lead to other evidence that might show, that plaintiff had the
various mental health problems he is attributing to defendant prior to his incarceration.
Accordingly, I will give plaintiff a deadline to execute a release for the medical records referenced
in defendant’s motion. If plaintiff refuses to execute such a release, then defendants may file
a motion for sanctions under Rule 37. This motion should set forth both sides’ positions on the
scope of the release and should identify the sanctions to which he believes he is entitled.
Plaintiff will be given an opportunity to respond, then the court will rule on an appropriate
sanction, including whether any of plaintiff’s claims should be dismissed.

ORDER
It is ORDERED that:
(1) Plaintiff’s motion for extension of time to file a reply in support of his motion to
compel, dkt. 39, is GRANTED;
(2) Plaintiff’s motion to compel, dkt. 32, is DENIED;
(3) Defendant’s motion to compel, dkt. 38, is DENIED.
(4) August 29, 2016 is plaintiff’s deadline to sign the releases sought by defendant. If
plaintiff chooses not sign these medical release forms, then defendant may file a motion for
sanctions.

Entered this 18th day of August, 2016.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge