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Williams v. Marks

United States District Court, D. Nevada

October 29, 2019

MICHAEL WILLIAMS, Plaintiff,
v.
MARKS, et al., Defendants.

          ORDER RE: ECF NOS. 45 AND 49

          William G. Cobb, United States Magistrate Judge.

         On July 5, 2019, Plaintiff made a motion to be allowed to retain copies of his medical records relevant to his litigation in his cell to be able “to properly prepare for summary judgment.” (ECF No. 45 at 3.) Plaintiff recognized that Nevada Department of Corrections (NDOC) Administrative Regulation (AR) 639.02.8 states that “[c]opies of health record shall not be released directly to the inmate while incarcerated.” However, Plaintiff argued that he fell within the exception to the prohibition as the AR states at subparagraph 02.8:

Exception to this release shall be made only when an inmate is personally involved in a lawsuit directly involving medical issues that would require the use of his/her medical records, as verified by the Office of the Attorney General.”

AR 639.02.8; ECF No. 45 at 3.

         Plaintiff also predicated his motion on another provision of AR 639, i.e., 639.03.1, which states “[a]n inmate is prohibited from possessing any portion of their medical file on their person, in their cell or on the yard unless otherwise permitted by a court order.” (Id. at 3.)

         Defendants Isidro Baca, Dana Marks and Melissa Mitchell, who were sued under a claim of deliberate indifference to a serious medical need (ECF No. 3 at 6)[1], opposed Plaintiff's motion. (ECF No. 47.) Defendants asserted Plaintiff should not be entitled to possess medical records in his cell because Plaintiff “failed to provide a compelling reason for setting aside the NDOC's long-standing policy of prohibiting inmates from possession their medical records in their cells.” (ECF No. 47 at 2.) Defendants further argued that:

“Plaintiff appears to interpret AR 639 as an invitation to obtain a court order and ignore the records review process. This interpretation is incorrect. The NDOC is not inviting inmates to obtain orders and possess their records in their cells. Rather, AR 639.02.8 simply recognizes that the Office of the Attorney General may need to instruct medical staff to directly release medical records to an inmate and that the medical staff are permitted to comply with such instructions. AR 639.03.1 simply recognizes the force of a court order and that medical staff are permitted to comply with such an order.”

(ECF No. 47 at 3; emphasis added.)

         Defendants submitted a prior version of AR 639 which was in effect from April 25, 2010, to January 8, 2012, Exhibit B. (ECF No. 47-2; the AR was titled “temporary”.) The former version of AR 639 did not contain the litigation exception language appearing in the current version of AR 639. Instead, paragraph 8 of the 2010-2012 version simply prohibited NDOC staff from providing an inmate copies of his medical records. (ECF No. 47-2 at 4.)[2]

         The next version of AR 639 Defendants reference in the one adopted on March 1, 2018, which is the AR regarding medical records which currently remains in effect. (ECF No. 47-4, Exhibit D.) Defendants do not explain what AR(s) regarding medical records may have been adopted and utilized from 2012 through March 1, 2018. Defendants did submit, however, an undated declaration of former Director of the Nevada Department of Corrections Greg Cox pertaining to the 2010-2012 version of AR 639, entitled “Declaration of Greg Cox, in support of Defendants' Brief Addressing the Confidentiality and Safety and Security Issues Pertaining to Inmate Medical Records” (ECF No. 47-1) Cox's Declaration was originally filed in the case of McCabe v. Gibbons, 3:09-cv-244-LRH-RAM. (ECF No. 72-1, 12/5/2011.) The Cox Declaration identifies the policy rationale for the reasons the former versions of AR 639 (and Medical Directive (MD) 707) then in effect which prohibited inmates from possessing medical records, i.e., safety and security of the inmate and the institution.

         Neither Director Cox's Declaration nor Defendants' opposition memorandum in this case (ECF No. 47), however, addressed what revisions to AR 639 occurred between 2012 (when that version, i.e., Defendants' Exhibit B; ECF No. 47-2, expired) and March 1, 2018 - when the current version of AR 639 was adopted. (Defendants' Exhibit D, ECF No. 47-4.)

         The current version of Medical Directive 707 (ECF No. 47-5) prohibits inmates from possessing medical records on the yard (ECF No. 47-5, ¶ 13 at p. 5)[3] and the current version of AR 639.02.8 states copies of an inmate's medical records shall not be “released” to the inmate. The current version of AR 639 also allows medical records to be released to an inmate “when an inmate is personally involved in a lawsuit directly involving medical issues that would require use of his/her medical records, as verified by the Office of the Attorney General.” (ECF No. 47-4, ¶ 98 at pp.4-5.)

         As mentioned above, Defendants' counsel argued that AR 639.02.8 “. . . simply recognizes that the Office of the Attorney General may need to instruct medical staff to directly release medical records to an inmate and that medical staff are permitted to comply with such instructions.” Defendants' counsel also argued that an inmate must show a “compelling reason for setting aside the NDOC's long-standing policy of prohibiting inmates from possessing medical records in their cells.” (ECF No. 47 at 2.) Defendants further contended that AR 639.03.1 “simply recognizes the force of a court order and that medical staff are permitted to comply with such an order.” (Id. at 3; emphasis added.)

         This court in its order of July 24, 2019 (ECF No. 49), recognized the federal court's typical deference to “the judgment of prison officials in matters of security, ” citing Bell v. Wolfish, 441 U.S. 520, 546-47 (1979). This ...


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