United States District Court, W.D. Michigan, Southern Division
PHILLIP J. GREEN United States Magistrate Judge
a civil rights action brought by a state prisoner pursuant to
42 U.S.C. § 1983. Plaintiff is an inmate at the Carson
City Correctional Facility. (ECF No. 111). His complaint
arises out of conditions of his confinement at the Michigan
Reformatory from October 29, 2015, through November 23, 2015,
and at the Bellamy Creek Correctional Facility from November
24, 2015, through July 12, 2016. Plaintiff is dissatisfied
with the decisions of medical professionals regarding how
frequently he can obtain refills of an inhaler that has been
prescribed and provided as treatment for his asthma and
cardiopulmonary disease (COPD).
filed this lawsuit on August 29, 2016. The defendants are
divided into two groups. The first group of defendants is
Corizon Health, Incorporated (Corizon) and its employees
Nurse Practitioners Corey Grahn and Andrea Lindhout
(collectively referred to as the Corizon defendants). The
second group of defendants (collectively referred to as the
MDOC defendants) is comprised of employees of the Michigan
Department of Corrections: Registered Nurse Lindsey Taylor,
Registered Nurse R. Harbaugh, Corrections Officer Burch,
Registered Nurse Diana Whitelock, Registered Nurse S.
Gregurek, Corrections Officer Nixon, Registered Nurse S.
Buskirk, Registered Nurse Kevin Corning, Registered Nurse
Joshua Langdon, Michigan Reformatory's Health Unit
Manager Bryan Deeren, Registered Nurse and Clinical
Administrative Assistant of the Southern Region Health Care
Administration Laura Kinder, and Manager of the MDOC's
Grievance Section of the Office of Legal Affairs Richard
matter is before the Court on a series of motions: the MDOC
defendants' motion for a stay of discovery (ECF No. 61),
the motion by the Corizon defendants to compel discovery (ECF
No. 66), plaintiff's motion to strike the MDOC
defendants' motion for a stay of discovery (ECF No. 71),
plaintiff's motion for a protective order (ECF No. 72),
plaintiff's motion to strike defendants' brief (ECF
No. 77), plaintiff's motion to quash a subpoena, for
sanctions, and request for an extension of time to file a
motion (ECF No. 80), plaintiff's motion to compel against
the Corizon defendants (ECF No. 90), plaintiff's motion
to enforce subpoenas and for an extension of time to file a
response to the MDOC defendants' motion for summary
judgment (ECF No. 95), and a motion by the Corizon defendants
for an extension of their deadline for filing a motion for
summary judgment (ECF No. 103).
review, the motion to stay discovery (ECF No. 71), the motion
to strike (ECF No. 77), the motion to extend time (ECF No.
80), and the motion to enforce subpoenas and to extend time
(ECF No. 95) will be denied. The Corizon defendants'
motion to compel (ECF No. 66) will be granted and plaintiff
will be ordered to sign the release for the MDOC's
records. Other motions (ECF No. 61, 72, 90, 103) will be
granted in part and denied in part as specified herein.
MDOC Defendants' Motion for Protective Order
MDOC defendants filed a motion for summary judgment based on
the affirmative defense provided by 42 U.S.C. §
1997e(a). Under the paragraph 2(c) of the Court's case
management order (ECF No. 22, PageID.109), discovery against
the MDOC defendants was limited to the issue of exhaustion of
administrative remedies. The discovery sought by plaintiff
(see ECF No. 62-1, PageID.646, PageID.646-48) was
not limited to the issue of exhaustion of administrative
remedies on the claims at issue in this lawsuit. The MDOC
defendants' motion for a protective order (ECF No. 61)
will be granted in part and denied in part. The motion will
be granted to the extent that the Court will continue to
enforce the case management order's limitation of
discovery against the MDOC defendants to the issue of
exhaustion of administrative remedies and the time period for
conducting such discovery has passed.
Plaintiff's Motions to Strike
March 31, 2017, plaintiff filed a motion to strike the MDOC
defendants' motion for a protective order (ECF No. 71)
and a motion to strike a “[b]rief filed by the MDOC
Defendants responding to Plaintiff's motion for a
protective order against the Corizon Defendants” (ECF
No. 77). Upon review, plaintiff's motions to strike will
be denied for multiple reasons. First, the Court has
determined that the MDOC defendants are entitled to a
the challenged motion and brief are not pleadings under Rule
7(a) and plaintiff has not established grounds for striking
those documents under Rule 12(f). See Fed. R. Civ.
P. 7(a), 12(f); see also Lucas v. JBS Plainwell,
Inc., No. 1:11-cv-302, 2011 WL 5408843, at *1 (W.D.
Mich. Nov. 8, 2011).
plaintiff's argument that the documents “should be
stricken from the record because their lawyer has not been
given leave of court to make an appearance” (ECF No.
78, PageID.749) is frivolous. Defendants' attorney did
not require leave of Court to make an appearance. Defendants
can be represented by more than one attorney.
Local Civil Rule 7.1(d) is an attempt to help the Court deal
with the proliferation of non-dispositive civil motion
practice - a problem that is well-illustrated by this case.
Rule 7.1(d) is designed to force the moving party to
ascertain whether the motion will be opposed, confer in a
good faith effort to resolve the dispute, and to provide the
Court with a separately filed certificate in writing
“setting forth in detail the efforts of the moving
party to comply with the obligation created by this
rule.” W.D. Mich. LCivR 7.1(d). It is patent that Rule
7.1(d) was not intended to exacerbate the existing problem by
creating opportunities for another yet layer of motions based
on assertions that a movant's certification was
“false” or that efforts to resolve the matter
before filing the motion were not made in good faith. (ECF
No.71, PageID.710-12). While a purported deficiency in the
movant's certification might warrant some limited
discussion in a brief filed in opposition to a motion, it
should never spawn a round of motions to strike.
Plaintiff's motions to strike will be denied.
The Corizon Defendants' Motion to Compel and
Plaintiff's Motion for a Protective Order
March 17, 2017, the Corizon defendants filed a motion to
compel. (ECF No. 66). It is beyond question that plaintiff
placed his medical records and treatment at issue by filing
this lawsuit claiming that he received constitutionally
inadequate medical care. The Corizon defendants are seeking a
Court order compelling plaintiff to sign an authorization for
release of the MDOC's records regarding plaintiff for the
period between from February 1, 2011 and the present.
(Id. at PageID.686).
March 31, 2017, plaintiff filed a motion captioned as a
“MOTION FOR PROTECTIVE AND/OR QUALIFIED PROTECTIVE
ORDER.” (ECF No. 72).Plaintiff concedes that the
Corizon defendants are entitled have access to the MDOC's
medical records regarding his condition and medical care.
(Id. at PageID.731).
seeks to restrict the Corizon defendants' access to only
those records related to his asthma and COPD. Plaintiff would
like to inspect the medical records before the MDOC provides
them to the Corizon defendants. He would like the Court to
prohibit the Corizon defendants from having ex parte
communications with medical care providers. He asks the Court
to order someone to “redact” his social security
number and birth date from any documents released to the
Corizon defendants. Plaintiff also desires that the Court
make provisions preventing unauthorized disclosures of the
medical records, order that any medical records released be
destroyed at the end of the litigation, and order that access
to the medical records be restricted to attorneys of record.
(Id. at PageID.733-38). Upon review, plaintiff's
motion for a protective order will granted in part and denied
in part. Plaintiff will be ordered to sign the release for
the MDOC's medical records, and if he fails to sign the
release (ECF No. 66-2, PageID.692) and mail it to the
attorney for the Corizon defendants and file proof of service
of same with the Court on or before November 24, 2017, a
report and recommendation will enter recommending that all
plaintiff's claims against the Corizon defendants be
dismissed with prejudice.
claiming deliberate indifference to serious medical needs
place their medical condition and the medical care that they
have received directly at issue and thereby waive whatever
privileges or statutory protection the medical records may
have previously enjoyed under HIPAA. See Simon v.
Cook, 261 F. App=x 873, 886 (6th Cir. 2008) (waiver of
federal common law psychotherapist-patient privilege);
Maday v. Public Libraries of Saginaw, 480 F.3d 815,
821 n.2 (6th Cir. 2007) (waiver of state-law privilege);
Fuller v. Kerr, No. 2:13-cv-13171, 2015 WL 1565367,
at *2-3 (E.D. Mich. Apr. 8, 2015) (waiver of federal common
law psychotherapist-patient privilege); Romano v. SLS
Residential, Inc., 298 F.R.D. 103, 112-15 (S.D.N.Y.
2014) (waiver of HIPAA protections).
addition, given the public's constitutionally-based right
to know the evidence on which this Court bases a decision on
a motion for summary judgment, motions to seal summary
judgment exhibits, including medical records, are regularly
denied by this Court. See, e.g., McCallum v.
Corizon, Inc., No. 1:15-cv-700 (W.D. Mich. Sept. 21,
2016) (Order denying Corizon's motion to seal summary
judgment exhibit); Simmons v. Rogers, No.
1:14-cv-1242 (W.D. Mich. March 21, 2016) (same).
Sixth Circuit has pointed out that the presumption of access
to court proceedings finds its genesis in the founding
principles of this country and a revulsion against secret
judicial proceedings, such as those held in the Star Chamber
and other prerogative courts.” Martis v. Dish
Network, No. 1:13-cv-1106, 2013 WL 6002208, at *1-2
(W.D. Mich. Nov. 12, 2013) (citing Brown & Williamson
Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-79 (6th Cir.
1983)). The presumption has roots both in the First Amendment
and the common law, and it applies to pleadings, motions, and
other documents that bear on the merits of a controversy.
Martis, 2013 WL 6002208, at *1. “The parties
are privileged to negotiate in secret, but they must litigate
in public.” Encana Oil & Gas (USA), Inc. v.
Zaremba Family Farms, Inc., No. 1:12-cv-369, 2012 WL
1377598, at *2 (W.D. Mich. Apr. 19, 2012).
concedes that the Corizon defendants should be permitted
access to the MDOC's medical records for the time period
that they have requested. (ECF No. 73 at PageID.734). He
asks, however, that the Court limit defendants' access to
records regarding “(1) the prescription and use of
inhalers and medication given to Kitchen to control his
asthma and (2) the treatment by physicians and medical
providers of Kitchen's asthma or chronic obstructive
pulmonary disease from February 1, 2011 to January 1,
2017.” (Id. at PageID.732). Defendants respond
that plaintiff placed his medical condition at issue, and
that he is not entitled to restrict defendants' access in
the manner suggested. (ECF No. 89 at PageID.815-20).
alleges that he suffered a broad range of injuries and he
claims entitlement to extensive damages. Every count that
plaintiff lists in his complaint includes allegations that as
a result of defendants' actions, plaintiff,
“suffered damages including without limitation bodily
injury and resulting pain and suffering, disability, mental
anguish, and the capacity for the enjoyment of life. The
losses described are permanent or continuing in nature and
[plaintiff] will suffer such losses in the future.”
(ECF No. 1 at ¶¶ 113, 118, 123, 128, 133, 137, 141,
PageID.18-25). “Plaintiff does not get to choose which
discrete portions of his medical records he permits
Defendants to discover.” Sleighter v. Kent County
Jail Adm'r, 1:12-cv-703, 2013 WL 5320203, at * 5
(W.D. Mich. Sept. 20, 2013). Defendants are entitled to all
the requested MDOC records regarding plaintiff for the period
from February 1, 2011, to the present.
asks that the Court order that he be permitted to inspect the
records before the MDOC provides them to the Corizon
defendants. (ECF No. 73 at PageID.734-35). Plaintiff has no
such right of inspection. Plaintiff invokes the Michigan
Medical Records Access Act, Mich. Comp. Laws ' 333.26261,
et seq., (ECF No. 73 at PageID.735), but the
question of whether he is entitled to access to the
MDOC's records under the Michigan statute is simply not
an issue in this lawsuit. It is utterly irrelevant to
defendants' entitlement to the documents in question.
addition, this case is brought under the Court's
federal-question jurisdiction. “Pursuant to Rule 501 of
the Federal Rules of Evidence, the issue of privilege in
federal-question cases is governed by federal law, not state
law. This is the rule even where, as here, there are pendent
state-law claims asserted as well as federal claims.”
Carlson v. Fewins, No. 1:08-cv-991, 2010 WL
11488917, at *2 (W.D. Mich. Apr. 9, 2010) (citing Hancock
v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992)).
There is no federal physician-patient privilege. See
Hancock v. Dodson, 958 F.2d at 1373; see also
Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D.
547, 551 (S.D. Ohio 2014) (“It is well-established
that, under federal common law, there is no physician-patient
asks that the Court “prohibit the Corizon Defendants
from having ex parte communications with his medical
providers.” (ECF No. 73 at PageID.736).
Court has “broad discretion” in regulating
discovery. Strayhorne v. Caruso, No.11-15216, 2014
WL 916814, at *2 (E.D. Mich. Mar. 10, 2014). The Court, in
its discretion, declines to impose the suggested restriction.
The Corizon defendants are entitled to speak with
Corizon's employees and contractors and others medical
care providers regarding the care that plaintiff has received
or is receiving. “The HIPAA regulations plainly permit
adversaries in litigation to have access to a claimant's
medical records that are relevant to the issues in the
litigation. Having access to the medical witnesses who may
testify at trial serves the same goal of allowing equal
access to the evidence, which is essential to the success of
the adversary process.” Thomas v. 1156729 Ontario
Inc., 979 F.Supp.2d 780, 784 (E.D. Mich. 2013); see
also Owusu v. Michigan Dep't of Corr. Pain Mgmt.
Comm., No. 16-cv-12490, 2017 WL 3913152, at * 1-2 (E.D.
Mich. Sept. 7, 2017) (noting that ex parte
communications with health care providers are contemplated by
HIPAA and are regularly allowed by federal courts).
cites 45 C.F.R. § 164.512(e)(v), which states:
(v) For purposes of paragraph (e)(1) of this section, a
qualified protective order means, with respect to protected
health information requested under paragraph (e)(1)(ii) of
this section, an order of a court or of an administrative
tribunal or a stipulation by the parties to the litigation or
administrative proceeding that:
(A) Prohibits the parties from using or disclosing the
protected health information for any purpose other than the
litigation or proceeding for which such information was
(B) Requires the return to the covered entity or destruction
of the protected health information (including all copies
made) at the end of the litigation or proceeding.
defendant opposes plaintiff's motion because plaintiff is
asking the Court to impose a host of additional restrictions,
nothing in defendants' brief suggests that a
straightforward qualified protective order sufficient to
satisfy the above referenced requirements would be opposed.
Only this portion of plaintiff's motion will be granted
and the Court's order will contain basic provisions
sufficient to satisfy 45 C.F.R. § 164.512(e)(v). The
Court is granting this relief to avoid potential further
delays in getting the medical records into the hands of the
addition, to the above referenced provision regarding
destruction of records, plaintiff would like the Court to
“require the Corizon defendants to send the released
medical records, and all copies made of them, to an attorney
selected by [plaintiff] or the Court at the end of the
litigation, so that the records can be properly
destroyed.” (ECF No. 73, PageID.737). HIPPA and its
regulations contain no such requirements. There is nothing
before the Court suggesting that defendants' attorneys
will be unable to properly dispose on any medical records at
the conclusion of this lawsuit and all related appeals.
asks the Court to “order the redaction of his social
security number and birth date from any medical records
released to the Corizon Defendants.” (ECF No. 73 at
PageID.736). Plaintiff is not entitled to have anything
redacted from the documents that the MDOC is going to
produce. The attorneys already have an obligation to redact
portions of the information regarding plaintiff's birth
date and social security number from documents filed with the
Court. See Fed. R. Civ. P. 5.2(a)(1), (2). There is
no need for an order.
asks the Court to order that the MDOC's medical records
should only be “seen by attorneys Ronald W. Chapman,
Sr., Carly Van Toomme, Patrick L. Klida, and Adam P.
Sadowski.” (ECF No.73 at PageID.737). The Court, in its
discretion, declines to impose the suggested restriction
because it would improperly ...