United States District Court, D. Nevada
ORDER RE: ECF NO. 45
William G. Cobb United States Magistrate Judge.
has filed a motion to obtain medical records through
discovery, as well a request for an order to allow him to
keep his medical records in his cell. (ECF No. 45.)
Defendants filed a response. (ECF Nos. 47, 47-1 to 47-5.)
is an inmate incarcerated within the Nevada Department of
Corrections (NDOC) proceeding pro se with a civil rights
lawsuit under 42 U.S.C. § 1983. He is currently housed
at Ely State Prison (ESP), but the events giving rise to this
litigation took place while he was housed at Northern Nevada
Correctional Center (NNCC). On screening, Plaintiff was
allowed to proceed with an Eighth Amendment deliberate
indifference to serious medical needs claim against
defendants Bacca, Mark and Melissa. This claim is based on
allegations that Bacca intentionally interfered with his
medical treatment by pressuring defendant Marks to withhold a
prescription for oxycodone, and as a result Marks refused to
continue to prescribe oxycodone to Plaintiff. He avers that
Melissa failed to respond to his reports of pain. He claims
that this conduct caused him to remain in unbearable pain. He
was also allowed to proceed on his Eighth Amendment claim
against defendant Ward based on allegations that Ward denied
Plaintiff's grievance that detailed the actions and
inactions of the medical staff regarding his unbearable pain.
Finally, he was allowed to proceed with a claim against
defendant Ward for interference with his right of access to
the grievance process. (Screening Order, ECF No. 3.)
motion, Plaintiff argues that because of HIPPA, prisoners are
not able to obtain their medical records in litigation. He
states that NDOC's Administrative Regulation (AR) 639
provides that copies of health records shall not be released
directly to the inmate, except when an inmate is involved in
a lawsuit that would require use of the medical records, as
verified by the Office of the Attorney General. In addition,
the AR prohibits an inmate from possessing any portion of
their medical file on their person, in their cell or on the
yard, "unless otherwise permitted by court order."
asserts that he needs to obtain his medical records and
possess them in his cell in order to prepare for summary
judgment, and for the duration of this litigation.
response argues that while prison regulations preclude an
inmate from possessing medical records, they may review their
medical records under direct supervision of medical staff.
When an inmate is involved in litigation, the inmate is
required to send a request to review the records by filing a
kite. The regulations also allow inmates to make copies of
their medical records for legal purposes.
parties point out, AR 639 prohibits inmates from possessing
medical records in their cells. When an inmate is involved in
a lawsuit, he may request to review his medical records and
make copies of pertinent records for use in litigation.
Courts generally defer to the judgment of prison officials in
matters of security. See Bell v. Wolfish, 441 U.S.
520, 546-47 (1979). "[M]aintaining institutional
security and preserving internal order and discipline are
essential goals that may require limitation or retraction of
the retained constitutional rights of both convicted
prisoners and pretrial detainees." Id.
"[T]he problems that arise in the day-to-day operation
of a corrections facility are not susceptible of easy
solutions. Prison administrators therefore should be accorded
wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain
institutional security." Id. at 547 (citations
omitted). "Such considerations are peculiarly within the
province and professional expertise of correctional
officials, and, in the absence of substantial evidence in the
record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily
defer to their expert judgment in these matters."
Id. at 548 (citation and quotation marks omitted).
the court has on occasion, and on a showing of extraordinary
circumstances, issued orders allowing prisoners to possess
medical records, Plaintiff has not set forth anything in his
motion that presents such extraordinary circumstances. The
procedure of kiting to request a review of medical records
and copying pertinent records applies to all inmates
asserting medical care claims in litigation. Plaintiff has
not demonstrated this procedure is insufficient in his case.
His medical care claims are not unduly complex. Nor has he
represented that something about his condition makes it
unduly difficult to proceed in this fashion. He does not
state whether he requested to review his medical records and
make copies in accordance with AR 639.
the court notes that Plaintiff has already filed his motion
for summary judgment. (ECF No. 48.) He attaches as exhibits
to his motion 21 medical kites filed from January 31, 2019 to
June 5, 2019; 15 medical kites from August 3, 2018 to
December 26, 2018, emergency grievances and grievances.
Nowhere in his motion for summary judgment does he state that
he requested and was denied an opportunity to review and copy
pertinent medical records to prepare his motion for summary
the court will afford Plaintiff an opportunity to review his
medical records in accordance with AR 639 and supplement his
motion for summary judgment if he deems necessary. He will
not be permitted to possess his medical records.
motion (ECF No. 45) is GRANTED IN PART AND DENIED IN
PART. Plaintiffs motion is GRANTED
insofar as the court orders that he be allowed to review his
medical records and copy any pertinent medical records that
he wishes to use to supplement his motion for summary
judgment. The Deputy Attorney General shall ensure that this
occurs expeditiously following the issuance of this Order.
Plaintiff has up to and including the extended dispositive
motion deadline of August 19, 2019 to file a
supplement to his motion for summary judgment that includes
any argument to expand on the argument made in the motion for
summary judgment filed relative to his review of his medical
records. Plaintiff may attach as exhibits to the supplement
only those medical records that are specifically relevant to
his argument and the medical care claims proceeding in this
case. Defendants' deadline to respond to Plaintiffs
motion will run from the date that they are served with the
as he asks for an order that he be allowed to possess his
medical records in his cell, his motion is