ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendant moves for summary judgment (Docket No. 39) and a protective order (Docket No. 57). Also before the court are several motions filed by the plaintiff: (1) for an order prohibiting the defendant's use of plaintiff's mental health information (Docket No. 46); (2) for a determination that defendant's declaration was made in bad faith (Docket No. 49); and (3) to compel various discovery (Docket Nos. 64, 65, and 67). For the reasons that follow, the undersigned recommends that the motions for summary judgment and to find defendant's declaration to be in bad faith be denied. Additionally, plaintiff's motion to prohibit use of his mental health information is denied, but his motion for a protective order governing such information is granted. The court also grants, in part, plaintiff's motions to compel.
I. Mental Health Evidence and Protective Order
Defendant filed as Exhibit E in support of his motion for summary judgment several documents taken from plaintiff's psychiatric records from the California Medical Facility ("CMF"). Dckt. No. 40, Ex. E. Plaintiff seeks a court order prohibiting defendant from using his mental health information. Dckt. No. 46. Plaintiff also asks the court to sanction defense counsel as well as CMF Litigation Coordinator B.C. Williams and CMF Custodian of Medical Records Anna Lovey. Plaintiff argues that the release of his mental health information to defense counsel violated the California Civil Code and the California Department of Corrections and Rehabilitation Operating Manual (hereinafter "DOM"), because it was not made with his consent or pursuant to a court order or subpoena. Defendant responds that he legally obtained the records because they are not privileged, that plaintiff has waived any interest he has in their confidentiality, and, somewhat confusingly, that plaintiff's records are protected by HIPAA and defendant failed to comply with HIPAA, but that plaintiff's remedy should be, at most, a protective order.
Plaintiff argues that defendant violated the California Information Practices Act (Cal. Civil Code §§ 1798-17.98.78) (hereinafter "IPA") by obtaining his psychiatric records without his consent, a court order, or a subpoena. The IPA does restrict disclosure of personal records to certain situations, including where the disclosing party has obtained the prior written consent of the individual to whom the record pertains or pursuant to a subpoena or court order. Cal. Civ. Code § 1798.24(a), (k). However, the IPA also provides that it shall not be deemed to abridge the rights of litigants under California's statutory and common-law discovery rules. Id. § 1798.71.
In California, discovery may be had of communications between a psychiatric provider and a patient where the patient has raised the specific condition in litigation. In re Lifschutz, 2 Cal.3d 415, 433-435 (1970). In such a situation, the patient-litigant loses, or waives, his interest in the confidentiality of those communications insofar as they pertain to the specific mental conditions raised by the plaintiff in the litigation. Id. In this case, plaintiff has alleged that he "suffers from severe depression and induced paranoia," that recreational therapy on the yard is provided to him as part of his treatment for those conditions, that defendant deprived him of such therapy for 30 days, and that the denial "caused severe emotional distress and additional psychological trauma" because "physical therapy and exercise eases plaintiff's psychological and mental problems." Compl., Dckt. No. 1, at 12-13. Plaintiff has thereby placed his severe depression and paranoia at issue in this case and waived his interest in the confidentiality of his psychiatric records as to those conditions. Exhibit E does not contain documents revealing or discussing other conditions not placed in issue by plaintiff. Accordingly, the release of that information to defendant was lawful under California discovery law and therefore did not violate the IPA.
Plaintiff also argues that the release of his psychiatric information to defendant violated the DOM. The DOM specifically provides, however, that "[c]opies of health records shall be made available for review . . . at the request of the State AG's office." DOM § 91070.8.3.
Moreover, federal privilege law, rather than state privilege law, applies in this federal court action containing solely federal claims. See Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005) (stating that the federal court is not bound to apply a state-law privilege).
For those reasons, the court cannot conclude that California law provides a basis for prohibiting defendant from using the psychiatric records contained in defendant's Exhibit E to the motion for summary judgment or for sanctioning defense counsel, Mr. Williams, or Ms. Lovey.
The disclosure and use of plaintiff's psychiatric records in this case implicates several federal laws: (1) a due process right to privacy; (2) the psychotherapist-patient privilege; and (3) the Health Information Portability and Accountability Act (hereinafter "HIPAA"). The court will discuss each in turn.
The Ninth Circuit has recognized a limited right to informational privacy protected by the federal Constitution's Due Process Clause. Seaton v. Mayberg, 610 F.3d 530, 537-39 (9th Cir. 2010). It is presently unclear whether and to what extent this right extends to prison psychiatric records used in litigation. See id. at 534 (holding that "prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological interest in access to them.") and at 537-39 (discussing earlier Ninth Circuit cases, which recognized a right to privacy in medical information in certain contexts). Assuming that prisoners do enjoy a constitutional right to privacy in their prison medical records, such a right is waived when the a prisoner places his or her medical condition at issue in a lawsuit. Thomas v. Carrasco, Case No. 1:04-cv-05793-MJS (PC), 2010 U.S. Dist. LEXIS 108918, *9-12 (E.D. Cal. Oct. 13, 2010); Doe v. Marsh, 918 F. Supp. 580, 585 (N.D.N.Y. 1996); Ferrell v. Glen-Gery Brick, 678 F. Supp. 111, 112-13 (E.D. Pa. 1987). Here, as discussed above, plaintiff has placed his mental conditions in issue and thereby waived any constitutionally-protected interest in the privacy of his psychiatric records pertaining to those conditions.
Federal courts also recognize a common-law privilege protecting the disclosure of confidential communications between a patient and psychotherapist. Jaffee v. Redmond, 518 U.S. 1, 12 (1996). The privilege may be waived, however, when the patient files a lawsuit that places the privileged communications in issue. See Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa.1997); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F. Supp. 346, 349-50 (C.D. Ill. 1997); cf. Home Indem. Corp. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (applying waiver to attorney/client privilege).
The Supreme Court in Jaffee recognized that privileges may be waived, but did not discuss in what circumstances the psychotherapist-patient privilege is waived. See 518 U.S. at 18. District courts have generally followed two approaches to determining whether the privilege has been waived. Fritsch v. City of Chula Vista, 187 F.R.D. 614, 621 (S.D. Cal. 1999); Wilson v. Nesbeth, No. CIV S-06-1139 GGH P, 2010 U.S. Dist. LEXIS 120527, *2 (E.D. Cal. Oct. 29, 2010). Some courts apply a broad test, finding waiver whenever emotional distress damages are sought. Fritsch, 187 F.R.D. at 621-24 (collecting cases). Other courts apply a narrower test, finding waiver only where emotional distress claims are more than mere "garden variety" or incidental emotional distress damages claims. Id. at 624-29 (collecting cases); Wilson, 2010 U.S. Dist. LEXIS 120527 at *2-4 (following the narrower approach and finding no waiver where plaintiff did not seek damages for emotional injuries or allege that defendant's conduct in denying plaintiff a psychological evaluation caused plaintiff damage).
Even under a narrow approach, the court concludes that plaintiff has waived the psychotherapist-patient privilege with regard to Exhibit E. Exhibit E contains: (1) a summary of therapy hours offered and provided to plaintiff in April and May 2007, including rehabilitation therapy*fn1 ; (2) plaintiff's psychotherapist's notes regarding plaintiff's depression and paranoia and treatment therefor on June 10, 2007, May 11, 2007, and April 5, 12, 15, and 17, 2007. Plaintiff has not simply alleged a "garden variety" claim for emotional distress, but instead has claimed that he "suffers from severe depression and induced paranoia," that recreational therapy on the yard is provided to him as part of his treatment for those conditions, that defendant deprived him of such therapy for 30 days, and that the denial "caused severe emotional distress and additional psychological trauma" because "physical therapy and exercise eases plaintiff's psychological and mental problems." Compl. at 12-13. Because plaintiff has alleged that defendant's conduct deprived him of psychotherapeutic treatment and exacerbated his mental problems, plaintiff has waived the psychotherapist-patient privilege with regard to the records contained in Exhibit E, and thus the privilege does not provide a basis for prohibiting defendant's use of Exhibit E or imposing sanctions.
HIPAA places restrictions on certain health care entities' disclosure of health information, by, for example, requiring that an entity first obtain consent, a court order, or a subpoena. 45 C.F.R. § 164.512. Defendant states that "[i]t cannot be disputed" that the California Department of Corrections and Rehabilitation and CMF are subject to HIPAA and that plaintiff's health information is protected by HIPAA. Dckt. No. 56, Def.'s Opp'n to Pl.'s Mot. Seeking an Order at 6. Defendant states that he did not notify plaintiff of the use of his medical records because he believed the records were not privileged, but cites to no portion of HIPAA allowing a party to fail to comply with the Act out of such a belief. Defendant proposes a protective order to protect the information contained in Exhibit E.
The Ninth Circuit has held that HIPAA provides no private right of action. Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007). The court therefore finds that plaintiff may not privately enforce any rights he may possess under HIPAA by obtaining an order prohibiting defendant from using his records in this action or sanctioning defense counsel, Mr. Williams, or Ms. Lovey. See Smith v. Daniels, No. 1:07-CV-2166-RWS, 2010 U.S. Dist. LEXIS 124736, *18-19 (N.D. Ga. Nov. 24, 2010) (denying plaintiff's request to strike medical information submitted by defendants because HIPAA provides no private right of action).
For the foregoing reasons, the court denies plaintiff's request for an order prohibiting defendant from using his mental health information and imposing sanctions. However, the court finds that a protective order is called for as provided below.
Due to defendant's apparent concession that HIPAA should have been complied with in this case, as well as in deference to plaintiff's privacy, the court will grant defendant's motion for a protective order (Docket No. 57) and direct the Clerk to remove Exhibit E (as well as its reproduction as Exhibit 2 to plaintiff's motion) from the court's electronic docket and file a copy under seal.
II. Defendant's Declaration
Plaintiff has filed a motion seeking a determination that defendant's declaration in support of his motion for summary judgment was submitted in bad faith under Federal Rule of Civil Procedure 56(h). That rule provides:
If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court -- after notice and a reasonable time to respond -- may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
Plaintiff argues that defendant's declaration was submitted in bad faith because of "inaccuracies, discrepancies and contradictions" allegedly contained therein. Plaintiff seeks sanctions against defendant and defense counsel, attorney fees, an order holding defendant or defense counsel in contempt, and leave to propound additional interrogatories.
The primary inaccuracy cited by plaintiff concerns the date on which the fight on the yard that is central to this lawsuit occurred. Plaintiff's complaint alleges that, on April 4, 2007, defendant was berated by a superior correctional officer after he was absent from his assigned post when a fight between two inmates broke out on the yard. Dckt. No. 1 at 7-8. Defendant then began "speaking disrespectfully" to other inmates on the yard, and plaintiff "politely asked" him to "tone down his language and demeanor." Id. Defendant then unilaterally denied plaintiff access to the yard for 30 days. Id. Defendant's declaration states that the yard fight occurred on April 4th, but an attached entry from a unit log book has the date at April 3rd. Other alleged "discrepancies" flow from this date uncertainty, such as who defendant's partner was on the date the fight occurred.
Defendant has submitted a notice of errata, stating that the fight occurred on April 3rd and changing all references in submitted documents which had stated that it occurred on April 4th. Dckt. No. 63. According to defendant, the log entry is a business record that should be relied on to establish the date and other submissions, including defendant's declaration, and that using the April 4th date were "an honest mistake by counsel." Dckt. No. 58, Def.'s Opp'n to Pl.'s Mot. for Determination of Bad Faith at 1-2 and Ex. A (Decl. of Kelli Hammond). Plaintiff states that he remembers the fight as occurring on April 4th, but will stipulate to whatever date the court determines after the court has viewed certain documents that would establish the correct date. These documents, such as a possible rules violation report issued to the combatant inmates and those created in investigating plaintiff's staff complaint against defendant, have been sought by plaintiff in discovery, but have not been produced. See Discussion of plaintiff's discovery motions, below. The court is unable to determine, based on the submissions to date, the correct date of the fight.
Nevertheless, the court finds no reason at this time to discredit defense counsel's assertion that defendant's declaration and other documents submitted by defendant used the April 4th date due to simple error. While plaintiff's recollection that the fight occurred on April 4th, rather than April 3rd, may reveal a fact that is presently in dispute, it is not a basis for finding that defendant's declaration was submitted in bad faith.
The remaining "inaccuracies, discrepancies and contradictions" plaintiff contends are included in defendant's declaration are nothing more than additional instances in which plaintiff or plaintiff's witnesses dispute defendant's version of the facts. The court cannot conclude that defendant is being dishonest simply because plaintiff presents different facts than defendant. Accordingly, the undersigned recommends denial of plaintiff's motion for a determination that defendant's declaration was submitted in bad faith under Federal Rule of Civil Procedure 56(h).
Plaintiff seeks leave to propound 20 additional interrogatories to develop assertions made by defendant in his declaration in support of summary judgment and his discovery responses. The deadline for propounding interrogatories passed on February 16, 2010 (except as to certain specific interrogatories, which the court allowed plaintiff to serve by August 24, 2010). Dckt. Nos. 18, 38. As the deadline has passed, the court construes this request as a request to modify the schedule under Federal Rule of Civil Procedure 16(b).
A schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff states that he seeks the discovery to develop claims made by defendant in response to plaintiff's prior interrogatories and in his declaration in support of his summary judgment motion. While it is possible that the questions plaintiff wishes to ask could not have been asked before plaintiff received defendant's initial responses and declaration, plaintiff delayed serving his original set of interrogatories right up until the cut-off date and thus did not leave himself any time to review defendant's first responses and then serve additional interrogatories before the deadline passed. In addition, plaintiff's interrogatories already include questions posed in response to defendant's declaration. Thus, it appears that plaintiff had the opportunity to question defendant regarding his declaration before the discovery deadline passed. Plaintiff has not shown that he could not have served the questions he now wishes to ask of defendant prior to the discovery cut-off if he had acted diligently. Accordingly, the court denies plaintiff's request to propound additional interrogatories. However, this denial is without prejudice -- plaintiff may renew his request to propound additional interrogatories by motion setting forth the interrogatories he wishes to pose and explaining why he could not pose them prior to the discovery deadline.
III. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment on the grounds that: (1) no violation of the Eighth Amendment occurred on the undisputed facts and (2) defendant is entitled to qualified immunity. The court finds defendant's arguments unpersuasive for the reasons that follow.
A. Summary Judgment Procedure
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. "When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate." Nw. Motorcycle Ass'n, 18 F.3d at 1472.
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting the prior language of Rule 56(c), which was amended in 2007 to implement purely stylistic changes). If the moving party meets its initial responsibility, the opposing party must demonstrate -- through evidence in the form of affidavits and/or admissible discovery material -- a factual dispute that is both material (i.e. it affects the outcome of the claim under the governing law) and genuine (i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party).Fed. R. Civ. P. 56(c)(1)(A); Anderson, 477 U.S. at 248-50; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986). Alternatively, the opposing party may demonstrate that a fact is genuinely disputed by "showing that the materials cited [by the moving party] do not establish the absence . . . of a genuine dispute, or that [the moving] party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B); Matsushita, 475 U.S. at 586. Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence ...