The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
CHRISTOPHER EUGENE DE ROSSITTE PLAINTIFF
v. Civil No.6:17-cv-06043
CORRECT CARE SOLUTIONS, INC., DR.
NANETTE VOWELL, and NURSE
MELISSA L. GIFFORD DEFENDANTS
ORDER
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.
1 MRSA is a “drug-resistant strain of staph bacteria. MRSA is only susceptible to a limited number of antibiotics,
but most MRSA skin infections can be treated without antibiotics by draining the sores. MRSA can be spread
through direct contact with infected individuals or though contact with materials that have been exposed to the
bacteria...” Kaucher v. County of Bucks, 455 F.3d 418, 421 (3rd Cir. 2006).
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. See St. Paul Reinsurance Co., Ltd. v. Comm. Fin.
Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000) (collecting cases).
DISCUSSION
In the instant motion, Plaintiff states he sent discovery requests to Defendants on June 12,
July 7, and July 15 of 2018 and Defendants failed to adequately respond or produce the
information. Plaintiff acknowledges some of these requests overlap with the requests which were
the subject of the Court’s order granting his first motion to compel. In their Response to Plaintiff’s
motion, Defendants state Plaintiff’s summary of his requests does not accurately reflect the
requests Plaintiff made to them in 2018. (ECF No. 140). The Court agrees and will address only
Plaintiff’s actual discovery requests – as opposed to his summary - and Defendants’ responses
thereto. Plaintiff’s discovery requests at issue and Defendants’ responses are set forth below. The
Court will address each request in the order Plaintiff has presented them in his Motion to Compel.
(ECF No. 130).
A. June 12, 2018 request to Melissa Gifford (ECF No. 130-1, pp. 1-11)
INTERROGATORY NO. 1: Please provide a detailed and specific accounting of your
education and training regarding the spinal column such that enables you, without any
examination or inquiries directed to the patient (as was the case with the Plaintiff on June 6,
2018) to issue a competent medical opinion that a patient with a spinal column injury should
not continue on medications prescribed over many years and that his decision should not be
referred to a more knowledgeable person or physician.
RESPONSE: Objection. This interrogatory is argumentative. It also assumes facts not in
evidence. Defendant further objects because this interrogatory is not proportional to the needs
of the case because Plaintiff is asking for information regarding new medical issues that are
not relevant to the allegations in his Complaint.
Plaintiff has not made any claims in this lawsuit regarding denial of medical care for his
spinal column or fractured bones. Plaintiff has failed to establish why the requested
information in Interrogatory No. 1 submitted to Defendant Gifford on June 12, 2018 is relevant
and therefore his Motion to Compel as to this request is DENIED.
REQUEST NO. 1: As cited in the June 7th 2018 response by you to the Plaintiff’s June 6th
2018 initiated ADC Health Service Request Form, also known as a “sick call form”, please
provide all CCS policies and protocols which you followed (or did not follow) or in any way
related to your decisions, actions, inactions or Plaintiff’s condition in the June 6th encounter or
your response on June 7th to the form especially though not limited to the following:
a. Over-the-counter, or non-prescription medications
b. Naproxen
c. Acetaminophen
d. simethicone
e. Renewal of long-term or chronic prescriptions
f. Definitions of ‘chronic’ conditions
g. Spinal column injuries
h. Breaks, fractures other damage to bones
i. Vertebrae injuries
j. Nurses authority to prescribe treatment
k. nurses’ discretion to prescribe (or not) exercises or other non-medical treatment
or solutions in general and in specific regard to back or spinal column injuries
l. nurses’ authority to disregard, discount or otherwise not consider a previous
treatment
m. nurses’ authority to enable or deny provider visit and the criteria for such
n. “nursing protocol” as mentioned in the response in its entirety
o. Degenerative discs, also known as degenerative disc disease
p. Pain management
q. Conflict of interest avoidance
r. Responsibility regarding patients involved in litigation
s. Encounters with patients engaged in litigation against you, and recusal (or not)
from medical decision-making process
t. Encounter for standard sick call
u. Encounter for medicine renewal sick call
v. Definitions for sick call by type, whether new, existing, ongoing, repeat,
chronic or follow-up
RESPONSE: Objection. This interrogatory is not proportional to the needs of the case because
Plaintiff is asking for information regarding new medical issues that are not relevant to the
allegations in his Complaint.
Again, Plaintiff has failed to meet his burden to demonstrate the information requested is
relevant. The Court finds the requests in Request No. 1 are not proportional to the needs of the
case because Plaintiff is seeking information relating to medical issues that are not part of his
Complaint. Plaintiff has not made any claims regarding his spinal column, fractured bones,
vertebrae injuries, or issues with medications prescribed or not prescribed for these conditions.
Accordingly, Plaintiff’s Motion to Compel with respect to Request No. 1 submitted to Defendant
Gifford on June 12, 2018 is DENIED.
B. July 7, 2018 request to Melissa Gifford (ECF No. 130-2, pp. 1-4)
INTERROGATORY NO. 1: Please provide the termination date of Gifford’s employment with
CCS at the SNU-ORCU facility.
RESPONSE: In June of 2017, Defendant Gifford separated from Correct Care Solutions, LLC’s
employment for reasons unrelated to her clinical performance or her clinical judgment.
INTERROGATORY NO. 2: Please provide the reason(s) and cause(s) Gifford’s employment was
terminated by CCS at the SNU-ORCU facility.
RESPONSE: See Answer to Interrogatory No. 1.
As for Interrogatory No. 1, the Court finds Defendants’ response is proper under the
Federal Rules of Civil Procedure. Defendants have provided the date Defendant Gifford left her
employment. With respect to Interrogatory No. 2, Defendants represent Gifford’s department from
CCS was due to personal reasons unrelated to her job performance. The Court finds the personal
reasons Defendant Gifford left her employment with CCS are not relevant to the claims in this
lawsuit. Accordingly, Plaintiff’s Motion to Compel as to Interrogatory Nos. 1 and 2 submitted to
Defendant Gifford on July 7, 2018 is DENIED.
REQUEST NO. 1: Please provide copies of any notes memoranda or other documents generated
by or added to by Gifford concerning the Plaintiff not electronically stored.
RESPONSE: To the extent that any records or documents exist, they have been provided in the
medical records mailed to Plaintiff on July 23, 2018, or they are not in possession of Defendants.
According to Defendant Gifford’s Response to Request No. 1, Plaintiff has been provided
with the requested records which were mailed out to him on July 23, 2018 (after this Court granted
Plaintiff’s first motion to compel) or the requested documents are not in their possession. The
Court finds Request No. 1 is duplicative and repetitive and involves documents and information
previously provided to Plaintiff by Defendants. Therefore, Plaintiff’s Motion to Compel as to
Request No. 1 sent to Defendant Gifford on July 7, 2018, is DENIED.
C. July 7, 2018 request to CCS (ECF No. 130-3, pp. 1-7)
INTERROGATORY NO. 1: Please provide the termination date, reason(s) and cause(s) of
Melissa Gifford’s termination of employment at the SNU-ORCU facility.
RESPONSE: In June of 2017, Defendant Gifford separated from Correct Care Solutions, LLC’s
employment for reasons unrelated to her clinical performance or her clinical judgment.
For the same reasons stated above, Plaintiff’s Motion to Compel the personal reasons for
Defendant Gifford’s termination of employment with CCS in Interrogatory No. 1 submitted to
Defendant CCS on July 7, 2018 is DENIED.
REQUEST NO. 1: Please provide all additional electronic documents stored in eOMIS generated
up to and including the current date from the date of the Plaintiff’s arrival at the SNU-ORCU
facility on November 15, 2013 concerning the Plaintiff in any way. (Footnote 2 – Including
Condensed Health Services Encounter from November d1st 2013 until the present.)
RESPONSE: This information was mailed to Plaintiff on July 23, 2018, in response to the Court’s
Order (DE # 80) entered July 9, 2018.
REQUEST NO. 2: Please provide all documents, electronic or otherwise, generated by Gifford
that in any way concern the Plaintiff in addition to that already provided, up to and including the
date of her termination.
RESPONSE: See Response to Request No. 1.
The Court finds Request Nos. 1 and 2 are cumulative and duplicative. Defendants
represent the requested documents were provided to Plaintiff on July 23, 2018, in response to this
Court’s order granting Plaintiff’s first motion to compel. Therefore, Plaintiff’s Motion to Compel
the information in Request Nos. 1 and 2 sent to CCS by Plaintiff on July 7, 2018 is DENIED.
INTERROGATORY NO. 2: Please provide an accounting, (Footnote 1 By “accounting” is meant
only date filed, parties and current status; or if concluded, a VERY brief summary of disposition -
nothing more.) including date filed, of all federal lawsuits naming CCS as a defendant which has
gone to trial in the last 5 years and the disposition, and date thereof, of each (or note if ongoing);
and for the same period, a list of all federal lawsuits naming CCS as a defendant, with date filed,
which was settled prior to trial. Only, information, and only the very basic information here above
noted, concerning lawsuits which have gone to trial or been settled is requested here.
RESPONSE: Objection. The interrogatory seeks information that is not proportional to the needs
of this case in light of the factors listed in Fed. R. Civ. P. 26(b)(1). Among the factors which weigh
against disclosure in this case are the importance of the issues at stake in this action; the amount
in controversy; the importance of the discovery in resolving the issues; and whether the burden or
expense of the proposed discovery outweighs its likely benefit. In the case at bar, Defendant’s
undefined litigation history has no bearing as to whether Plaintiff was provided with appropriate
health care in the Arkansas Department of Correction within the 3 years prior to Plaintiff filing his
lawsuit. (Citations omitted)
Moreover, Defendant may not be aware of all lawsuits filed in federal court against. It. As
the Court regularly screens and dismisses frivolous inmate lawsuits, Defendant has no obligation
under the Federal Rules to produce attorney work product in response to Plaintiff’s discovery
requests. Fed. R. Civ. P. 26(b)(3). Finally, because Defendant does not have the requested records
in its possession, custody, or control it should not be required to obtain those documents from
public sources or third parties. (citations omitted). The man hours and research required to
produce such a request would be exceedingly costly to Defendant, both in attorneys’ fees and
PACER charges. Plaintiff may make requests for any such records at this own expense.
INTERROGATORY NO. 3: Please provide an accounting (Footnote 1 By “accounting” is meant
only date filed, parties and current status; or if concluded, VERY brief summary of disposition –
nothing more.) of all ongoing, settled or adjudicated lawsuits filed by inmates, or representatives
thereof of their estates, in the Arkansas Department of Corrections system naming CCS or
employees thereof as defendants which have proceeded beyond initial screening by the court either
in federal or state court in the last five years.
RESPONSE: See Answer to Interrogatory No. 2.
The Court finds Plaintiff’s request for lawsuits in Interrogatories 2 and 3 submitted on July
7, 2018 to be relevant. However, the requests are overly broad. The Court previously ordered
Defendants to produce a “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”. (ECF No.
80, p.6).
Because the Court’s order did not specifically mention “federal lawsuits”, Plaintiff’s
Motion to Compel as to Interrogatory Nos. 2 and 3 on July 7, 2018 will be GRANTED IN PART.
Defendants are ordered to produce a list of 1983 lawsuits (including the disposition of each
lawsuit) over the last 3 years which have proceeded to trial, or been settled prior to trial, against
CCS in connection with the services they provide to the Arkansas Department of Correction
involving allegations of denial of medical care in the prison setting within thirty (30) days of the
date of this order.
REQUEST NO. 3: Please provide all electronic communications, whether transmitted within the
eOMIS client or by other means, from or to any CCS staff person concerning the Plaintiff since
November 15th, 2013.
RESPONSE: Objection. Plaintiff’s request is not proportional to the needs of this case. Among
the factors which weigh against disclosure in this case are the importance of the issues at stake in
this action; the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. (Citations omitted).
The Court finds Request No. 3 to be relevant but also duplicative and cumulative of the
information previously ordered to be produced in its July 9, 2018 order. The Court previously
ordered Defendants to produce the following information to Plaintiff: “All eOmis medical records
and documents and other electronic documents concerning the Plaintiff from November 1, 2013
until the present” and “Internal and external communication concerning Plaintiff’s medical care
from November 1, 2013 until the present.” (ECF No. 80, p. 5). In their Response to the instant
motion to compel, Defendants state they stand on their objection even though Defendants
represented they had provided this information to Plaintiff in their Response to Plaintiff’s Motion
for Sanctions. (ECF No. 134).
The Court is mindful that a litigant is not entitled to receive the same information in
multiple ways. Scott v. City of Bismarck, 328 F.R.D. 242, 245 (D. North Dakota 2018). However,
because Defendants have not clearly stated whether or not they have complied with the Court’s
previous order in their Response to the instant motion and instead have made only a conclusory
response, Plaintiff’s Motion to Compel as to Request No. 3 submitted on July 7, 2018 to CCS is
GRANTED IN PART. Defendants are ordered to provide Plaintiff with the requested documents
or identify which documents, previously produced, are responsive to Request No. 3 by Bates-
number within thirty (30) days within the date of this order.
D. July 15, 2018 request to CCS (ECF 130-4, pp. 5-9)
INTERROGATORY NO. 1: Please provide all those documents requested of Melissa Gifford in
the Plaintiff’s June 12th 2018 Additional Interrogatories for her, requests 2, 3, 4 and 5. Presumably,
no longer an employee of CCs, she no longer has access to this materials, and therefore it is
requested of CCs. An additional copy of that request is attached to this request for the Defense’s
convenience.
RESPONSE: This information was provided to Plaintiff in response to the Court’s Order (DE #80)
entered July 9, 2018.
Accordingly, Plaintiff’s Motion to Compel with respect to Interrogatory 1 sent to
Defendants on July 15, 2018 is denied because Defendants represent they have already provided
the information to Plaintiff.
REQUEST NO. 1: Please provide a copy of any policy or implemented practice applied to the
ORCU-SNU facility from the date CCS assumed responsibility for the medical care of the
inmates therein which:
a) sought to reduce costs by:
1. Reducing the number of prescriptions
2. Requiring sick calls be initiated to renew long-term (Footnote “Long-term” to
mean prescribed and then renewed for two or more 180 day periods
consecutively.), non “life sustaining” medications
3. Revising and cancelling or not renewing long-term medications
4. Reducing the number of conditions considered ‘chronic care”
5. Reducing frequency of blood labs
6. Refusing renewal of long-term medications with no reported or diagnosed change
in condition
7. Eliminating from the catalogue of approved medications and were not replaced by
others applicable to the same conditions (e.g. simethicone)
b) Sought to reduce the number of ‘scripts’ and/or required initiating sick calls for
renewal of ‘scripts’ for permanent conditions
c) Sought to reduce the occurance of referals to outside providers for orthopedic needs
d) Defined any condition which is remediable by surgery and which represents a major
impairment (e.g. preventing walking) as not eligible for treatment.
e) Medications no longer carried or discontinued, for any reason, during 2018, the
Plaintiff was prescribed and the reason of that discontinuation of availability
RESPONSE: Objection. Plaintiff’s request is not proportional to the needs of this case. Among
the factors which weight against disclosure in this case are the importance of the issues at stake
in this action; the importance of the discovery in resolving the issues; and whether the burden or
expense of the proposed discovery outweighs its likely benefit. (Citations omitted)
Plaintiff is suing Defendants in both their individual and official capacities. Consequently,
policies and practices seeking to reduce costs which might effect the medical care provided to
Plaintiff is certainly relevant to Plaintiff’s claim he is being denied medical care. In addition, the
Court finds Defendant CCS has failed to provide specific explanations or factual support as to how
Plaintiff’s request is improper.
Even so, the Court finds Plaintiff’s request regarding policies and practices “c) sought to
reduce the occurance of referals to outside providers for orthopedic needs and d) defined any
condition which is remediable by surgery and which represents a major impairment (e.g.
preventing walking) as not eligible for treatment” are not related to Plaintiff’s claims. In addition,
the multiple requests for information in Request No. 1 is cumulative and confusing. Accordingly,
Plaintiff’s Request No. 1 submitted to CCS on July 15, 2018, is GRANTED IN PART as follows.
Within thirty days of the date of this order, Defendant CCS is ordered to produce any
policies or practices of CCS in place from November 1, 2013 to the present at the ORCU-SNU
which seek to reduce the costs of providing medical care to inmates such as: reducing the number
of prescriptions for medications, reducing the number of conditions considered “chronic care,”
reducing the number of blood labs, reducing the catalogue of approved medications, and requiring
sick calls to renew long-term prescribed medications.
REQUEST NO. 2: Please also provide the results of the blood draw of July 13th 2018, and any
and all additional medical records generated since the Courts July 9th order.
RESPONSE: See Answer to Interrogatory No. 1.
The Court finds Plaintiff’s request for the results of his blood test to be relevant. However,
Defendants represent to the Court they have already provided the results to Plaintiff. Accordingly,
Plaintiff’s Motion to Compel the results of the blood draw on July 13, 2018 in Request No. 2
submitted on July 15, 2018, is DENIED.
CONCLUSION
Accordingly, as set forth above, Plaintiff’s Motion to Compel (ECF No. 130) is
GRANTED in part and DENIED in part.
IT IS SO ORDERED this 4th day of March 2019.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE