United States District Court, E.D. California
ORDER
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff
is a state prisoner, proceeding without counsel. This action
proceeds on plaintiff's Eighth Amendment medical claims
against defendant Dr. Kuersten. (ECF No. 22 at 9-10.) As
discussed below, counsel for defendant Kuersten is ordered to
provide additional briefing on plaintiff's motion to
compel further production (ECF No. 76).
Background
On
August 1, 2019, plaintiff's motion to compel further
production of documents was partially granted, and the court
ordered, in pertinent part:
1. Within thirty days, in response to Request No. 8,
defendant shall provide plaintiff with a copy of documents
addressing plaintiff's medical transfers from 2014
through 2017, and provide a declaration to the court
attesting to such production.
2. Within thirty days, in response to Request Nos. 9 and 19,
defendant shall provide plaintiff with a copy of any RFS or
orders pertaining to plaintiff's GI specialty appointment
from November 1, 2016, through December 31, 2016, including
any orders that were cancelled, modified or voided, and file
a declaration attesting to such production. If counsel for
defendant does not have such medical records in her current
physical possession, counsel for defendant shall make a good
faith effort to locate such records from plaintiff's
electronic medical file as well as any hard copy physical
file at both CSP-Solano and Old Folsom State Prison. If
counsel for defendant is unable to locate such documents, she
shall file a declaration setting forth her efforts to locate
such documents.
3. Within thirty days, in response to Request No. 13,
defendant is directed to file a declaration advising whether
or not any documents have, to date, been received and, if so,
what date they were produced to plaintiff.
4. Further, counsel for defendant shall work with the
litigation coordinator and medical records supervisor, Mr.
Weeks, at CSP-Solano, to provide plaintiff with meaningful
access to his medical file, both on the computer and in hard
copy format, along with a contemporaneous ability to obtain
copies of pertinent documents, including those marked
cancelled, voided, or modified, particularly in response to
Request Nos. 9, 15, 16, 17, and 18. Meaningful access
includes an ability to review the medical records and
determine which record he needs to copy, as well as
sufficient time to review and copy such records.
(ECF No. 66 at 17-18.) On August 29, 2019, defendant filed a
response, noting counsel contacted both defendant and the
litigation coordinator, who contacted M. Weeks, Health
Records Technician II Supervisor at California State Prison,
who copied all of plaintiff's medical records from
October 28, 2008, through July 31, 2019, consisting of
plaintiff's medical file maintained in paper format,
stored electronically, and maintained on the CERNER computer
system. (ECF No. 71 at 2.) Plaintiff was provided two
banker's boxes of such medical records on August 14,
2019, “in the manner in which they are maintained by
the medical department.” (Id.)
On
October 24, 2019, defendant filed an opposition to
plaintiff's motion for further compliance confirming that
after plaintiff again complained that documents were missing,
counsel contacted Mr. Weeks to determine if there were any
additional documents. Mr. Weeks confirmed that all of
plaintiff's medical records had been produced, over 6,
000 pages, and provided a screenshot of the filters allegedly
used when printing the medical records. The filters were set
to include “all inactive orders, such as discontinued,
canceled, or voided orders.” (ECF No. 77 at 2, 4.)
In
addition, counsel notes that in response to a discovery
request, defendant advised plaintiff that documents entered
into the computer system cannot be changed, based on
defendant's statement under oath: “if a medical
record is altered there is an addendum to the record, or a
strike out with the initials of the person who changed the
record. Once the record is scanned into the system it cannot
be altered.” (ECF No. 77 at 9.) Because defendant
provided all of plaintiff's medical records from October
28, 2008, through July 31, 2019, defendant contends there are
no other documents in the computer system to produce. (ECF
No. 77 at 2.)
On
November 12, 2019, plaintiff filed a reply complaining that
defendant's production was not responsive to the
court's August 1, 2019 order and refused to provide
plaintiff access to review his medical records on the
computer. (ECF No. 81.) Plaintiff argues that some of the
records provided have been edited, and that the screenshot
template and email from Mr. Weeks fails to demonstrate Mr.
Weeks used such filter when printing the medical records
provided to plaintiff, and fail to address plaintiff's
claim that some of the records have been modified.
(Id.)
On
December 6, 2019, defendant filed a notice of errata filing
the inadvertently omitted declaration signed by M. Weeks on
August 23, 2019. (ECF No. 83.) Mr. Weeks confirms he received
the court's August 1, 2019 order, and provided plaintiff
with two bankers boxes of medical records on August 14, 2019,
“irrespective of whether they were stored in paper
format, electronic format, or on the CERNER medical computer
system at CSP-Solano.” (ECF No. 83 at 5.) Mr. Weeks
understood that plaintiff believed that certain medical
records cannot be printed, but “[t]hat is
incorrect.” (Id.) Mr. Weeks explained that
while sometimes restrictions preclude the release of certain
types of sensitive information without approval of the mental
health team, all records in the electronic health record can
be printed. (Id.) Finally, Mr. Weeks states that:
“[a]fter ...