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De Rossitte v. Correct Care Solutions, Inc.

United States District Court, W.D. Arkansas, Hot Springs Division

March 4, 2019

CHRISTOPHER EUGENE DE ROSSITTE PLAINTIFF
v.
CORRECT CARE SOLUTIONS, INC., DR. NANETTE VOWELL, and NURSE MELISSA L. GIFFORD DEFENDANTS

          ORDER

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action filed by Plaintiff Christopher Eugene De Rossitte pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff's Motion to Compel. (ECF No. 130). Defendants have filed a Response in opposition to the motion. (ECF No. 140). The Court finds the matter ripe for consideration.

         BACKGROUND

         Plaintiff filed this lawsuit on May 4, 2017, asserting a 1983 claim for denial of medical care. Plaintiff alleges Defendants Correct Care Solutions, Inc. (“CCS”), Dr. Nanette Vowell, and Nurse Melissa L. Gifford. have denied him medical care for over three years. Specifically, he claims:

The Plaintiff, for over two and half years, has and continues to suffer from a frequently debilitating and always painful condition (likely a bacterial infection, MRSA). Symptoms include many NEVER addressed by ANY CCS staff person despite dozens and dozens of sick calls, requests and grievances: constant pain in tissues of face and head; frequent, usually daily headaches, mild to severe; excessive thirst; difficulty swallowing; recurrent boils and bumps on face; recurrent swelling of eyelids; earaches; muscle weakness and pain, shortness of breath, persistent and recurrent rashes; urine irregularities; poor blood work labs; bouts of nausea. And also includes a few INEFFECTIVELY addressed symptoms; constant eye pain and irritation; build-up of irritants under eyelids resulting in sleep deprivation; blurred, cloudy and dimmed vision; constant sinus trouble; recurring cough; recurring sore throat; edema on arms. Possible long-term health issues and permanent vision damage may already have resulted.[1]

(ECF No. 14, pp. 4, 8). Plaintiff is suing Defendants in both their personal and official capacities.

         On June 5, 2018, Plaintiff filed his first Motion to Compel (ECF No. 74) which was granted by the Court (ECF No. 80), and subsequently appealed by Defendants (ECF No. 90). On, November 9, 2018, the Honorable Susan O. Hickey, United States District Judge, affirmed the Court's decision granting Plaintiff's first Motion to Compel. (ECF No. 122). As a result, Defendants were ordered to produce the following information to Plaintiff:

1) The names and addresses of potential witnesses Defendants intend to call at trial and a short description of the nature of their testimony.
2) Internal responses or other documents related to the Plaintiff's August 2016 letter to CCS.
3) The full text of ADC HSP 800.00.
4) All eOmis medical records and documents and other electronic documents concerning the Plaintiff from November 1, 2013 until the present.
5) Internal and external communication concerning Plaintiff's medical care from November 1, 2013 until the present.
6) Blood lab reports from November 1, 2013 until the present.
7) ADC Health Services Request Forms relating to Plaintiff from November 1, 2013 until the present.
8) ADC Request Forms marked “medical” from November 1, 2013 until the present relating to Plaintiff.
9) The contact address for and medical documents generated by Dr. Kristin Law regarding her December 16, 2016 examination of Plaintiff.
10) The contact address for and medical documents generated by Dr. Thomas Moseley regarding his January 27, 2017 examination of the Plaintiff.
11) List of state or federal sanctions, fines, criminal charges or other court imposed settlements or injunctions against or involving CCS over the last 3 years which are based on similar allegations made by Plaintiff in the prison setting for denial of medical care.
12) List of complaints filed against Defendant Vowell with the State of Arkansas Physician's Board over the last 3 years which are based on similar allegations made by Plaintiff in the prison setting for denial of medical care.
13) Copy of any record or document in which Defendant Vowell curtails or discontinues any treatment or medication for the Plaintiff between November 1, 2013 until the present.
14) Any document generated or added to by Defendant Vowell suggesting the Plaintiff is delusional, a malingerer or a hypochondriac or any discussion of his mental health between November 1, 2013 until the present.
15) Physician notes, electronic or otherwise, concerning the Plaintiff between November 1, 2013 until the present.
16) List of complaints filed against Defendant Gifford with the State of Arkansas Nursing board over the last 3 years which are based on similar allegations made by Plaintiff in the prison setting for denial of medical care.
17) Any document generated or added to by Defendant Vowell [Gifford] suggesting the Plaintiff is delusional, a malingerer or a hypochondriac or any discussion of the Plaintiff's mental health.

(ECF No. 80, pp. 5-6).

         On January 17, 2019, Plaintiff filed a Motion for Sanctions (ECF No. 127) claiming Defendants failed to produce all the medical records ordered by the Court and asserting Defendants altered some of the records they did produce. Plaintiff also claimed Defendants failed to produce emails from Defendants Vowell and Gifford. Id. On February 26, 2019, the Court denied Plaintiff's Motion for Sanctions finding Defendants had produced all the documents previously ordered by the Court that were in their possession and found Defendants did not alter any documents. (ECF No. 144). The Court also noted that on July 24, 2018, Defendants sent Plaintiff 1, 781 pages of Bates-numbered medical records to Plaintiff. On August 6, 2018, Defendants sent Plaintiff an additional 79 Bates-numbered pages of records which included additional medical records and other documents. As recently as January 31, 2019, Defendants sent Plaintiff 405 Bates-numbered pages of mental health records. (ECF No. 134, p.2).

         The same day Plaintiff filed his Motion for Sanctions, he filed the instant Motion to Compel (ECF No. 130) seeking what appears to the Court to be some of the same documents already produced by Defendants. Plaintiff also asks the Court to compel production of information not addressed in any of the Court's previous orders.

         APPLICABLE LAW

         The scope of discovery in a civil case is governed by Federal Rule of Civil Procedure 26, which provides in part:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) The discovery sought is unreasonable, cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) The proposed discovery is outside the scope permitted by Rule 26(b)(1).

Fed. R. Civ. P. 26(b)(2)(C). Further, under rule 26(c), “[t]he Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c).

         The burden is generally on the party resisting discovery to show why discovery should be limited. Cincinnati Ins. Co. v. Fine Home Managers, Inc., 2010 WL 2990118, at *1 (E.D. Mo. July 27, 2010). In carrying this burden, the objecting party cannot rely on mere statements and conclusions but must specifically show how the objected-to disclosures would be irrelevant or overly burdensome, overly broad, or oppressive. S ...


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