Dooley v. Wetzel

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CASEY DOOLEY,

Plaintiff, CIVIL ACTION NO. 3:18-cv-01310

v. (MARIANI, J.)

(SAPORITO, M.J.)

JOHN E. WETZEL, Secretary of the

Pa. D.O.C., et al.,

Defendants.

MEMORANDUM

This matter comes before the court on a pro se Rule 37(a) motion to

compel, filed by the incarcerated plaintiff, Casey Dooley. (Doc. 95.) The

motion requests an order by the court directing the defendants to produce

in discovery a copy of one particular document—an August 9, 2021,

psychological evaluation report authored by one of the defendants,

Melissa McMahon, a psychological services specialist with the

Pennsylvania Department of Corrections (“DOC”). The moving plaintiff

further requests that the court sanction the defendants for this alleged

discovery violation by awarding him $5,000 in unspecified “reasonable

expenses.”1 The motion is fully briefed and ripe for decision. (Doc. 95; Doc.

96; Doc. 102.)

On June 6, 2002, following a trial, a jury found Dooley guilty but

mentally ill on five counts of attempted murder, five counts of aggravated

assault, and one count each of reckless endangerment and possession of

an instrument of crime. See Dooley v. SCI Huntingdon Superintendent,

No. 09-5755, 2010 WL 4909604 (E.D. Pa. Nov. 30, 2010) (denying a § 2254

habeas petition), certificate of appealability denied, No. 10-4623 (3d Cir.

Mar. 16, 2011). On August 15, 2002, the state court sentenced Dooley to

serve an aggregate term of 102½ to 205 years in prison. See id. Dooley

appealed, and on April 7, 2004, the Superior Court of Pennsylvania

affirmed his sentence in part and reversed it in part, vacating the five

concurrent sentences for aggravated assault but leaving his aggregate

1 We note that the only monetary sanctions authorized by Rule

37(a) are reasonable expenses incurred in making the motion, including

attorney fees. See Fed. R. Civ. P. 37(a)(5); Martin v. Brown, 63 F.3d 1252,

1263 (3d Cir. 1995). But in this case, the moving plaintiff is proceeding

pro se, and thus he has incurred no attorney fees in making this motion.

If he were to prevail, he could recover only those expenses actually

incurred as a discovery sanction. See Cooper v. Meyer, No. 16-cv-526-jdp,

2018 WL 1400956, at *3 (W.D. Wis. Mar. 19, 2018); Juarez v. Delgado,

No. EDCV 13-0275-DDP (AS), 2015 WL 13917157, at *10 (C.D. Cal. Jan.

13, 2015); Milburn v. City of York, Civil Action No. 1:12-CV-0121, 2013

WL 3049108, at *3 n.2 (M.D. Pa. June 17, 2013).

sentence of 102½ to 205 years imprisonment undisturbed. See id. Dooley

sought allocatur in the Supreme Court of Pennsylvania, which was

denied on December 29, 2004. See id. Dooley sought state and federal

post-conviction relief, without success. See id.

In his complaint, Dooley seeks to hold several named defendants

liable for deprivation of his rights under the Eighth Amendment to be

free from cruel and unusual punishment. He alleges that the defendants

have been deliberately indifferent to his serious medical needs because

they have failed to classify him as a “D Code” inmate, thereby denying

him access to unspecified mental health treatment programs. Dooley

contends that the jury’s finding in June 2002 that he was “guilty but

mentally ill” should operate as a per se finding that he suffers from a

serious mental illness and is entitled to receive unspecified mental health

treatment (whatever is provided to “D Code” inmates) while incarcerated.

He seeks an award of compensatory and punitive damages against each

of the defendants.

The parties have engaged in the exchange of discovery. Dooley

served defendant McMahon with a set of twenty interrogatories and a

single request for the production of documents, to which McMahon

responded on October 14, 2021. (See Doc. 95, at 4–6 (response to request

for production); Doc. 102, at 5–14 (response to interrogatories); Doc. 102,

at 15–17 (response to request for production).)

In response to the interrogatories, McMahon disclosed that she had

personally interviewed or examined Dooley on several occasions between

2006 and 2012. Her last face-to-face encounter with Dooley, however,

occurred on January 6, 2012. She disclosed that Dooley was classified as

“Stability Code D” for a period—between August 8, 2013, and December

4, 2015—based on a mental diagnosis by a psychiatric provider. She

disclosed that his December 2015 reclassification to “Stability Code C”

was due to a diagnostic change by a psychiatric provider. McMahon

disclosed that, in her role as mental health coordinator at the time, she

documented these changes in the DOC computerized records system.

When asked whether she had authored any written reports concerning

Dooley’s mental health or his request for a “D Code,” she responded that

she had authored a single written report on August 9, 2021, concerning

annual psychological evaluation and review of Dooley’s eligibility for

“Housing Code Z” (single-cell status); she had never authored a report

regarding his request for a “D Code,” or any other written report. This

single written report she authored was forwarded to Dooley’s unit

management team for review or further consideration.

Dooley’s single request for the production of documents directed to

McMahon requested “copies of any and all reports that you authored . . .

relating to [Dooley’s] mental health and [his] requests for a [‘D Code’].”

McMahon responded with the following objection:

The Defendant objects to this Request to the extent

that it seeks confidential records. The Defendant

objects to this request to the extent that it seeks certain

information that if obtained, an inmate will be able to

use such information to adversely affect institutional

safety and security and may also attempt to

manipulate and circumvent Department policy, which

can affect the overall safety and security of the

institutions. Thus, the disclosure of this information

would create safety and security concerns and may

endanger the lives of involved staff.

(Doc. 95, at 4; Doc. 102, at 15.) The defendant did not raise an objection

with respect to relevance or proportionality of this discovery request, nor

any other basis for withholding responsive documents from disclosure.

Defense counsel has represented that McMahon authored only a

single report responsive to Dooley’s request for production—the August

9, 2021, report regarding Dooley’s Code Z single-cell status. In a

declaration by McMahon, she has stated that she authored only the one

such report, which referenced Dooley’s then-current “Stability Code C”

classification and whether he met eligibility criteria for “Housing Code

Z” (single-cell status). She has acknowledged that this evaluation

includes discussion of Dooley’s current psychological status, his historical

mental health information, classification information, misconduct

information, risk factors specific to the inmate, and the thoughts,

opinions, and impressions of the authoring mental health professional.

She stated that the form itself contains language highlighting its

confidential nature and the potential impact on institutional safety and

security if disclosed to anyone. She further stated that, at the time of the

evaluation, Dooley would have been informed of these confidentiality

restrictions and signed an informed consent document acknowledging

these confidentiality restrictions.

McMahon’s declaration also catalogued several security-related

concerns that supported treating the document as confidential and

withholding it from disclosure to the inmate-plaintiff: (a) if inmates learn

the factors considered by mental health staff when conducting an annual

psychological evaluation, such information would be used to manipulate

behavior during future psychological reviews to obtain inappropriate

housing or programming; (b) inmates would use the information to

retaliate against mental health staff for reporting unfavorable

information or making unfavorable recommendations; (c) disclosure of a

mental health professional’s candid thoughts and opinions regarding the

inmate and any risks associated with that inmate would destroy the trust

relationship necessary for effective mental health evaluation and

treatment; (d) such disclosure would also have a chilling effect on the

rapport between mental health professionals and other inmates who

learn of that disclosure; (e) such disclosure would discourage mental

health staff from providing candid information and opinions; and

(f) without reliable psychological information or evaluations, inmates

may be given unsafe housing or programming.

In the defendant’s brief in opposition, defense counsel has further

represented that other defendants in this action have already produced

copies of Dooley’s mental health contact notes (or “DC-560s”) and

psychiatric assessments, for a total of more than 650 pages of such

materials. The plaintiff has not disputed this representation in his reply

brief, which addresses the relevance of the August 2021 report only.

In her brief, the defendant argues that the motion to compel should

be denied because disclosure of the report is neither relevant nor

proportional to the needs of the case, and because the disclosure of this

confidential information may jeopardize institutional safety and security.

As a threshold matter, we note that the defendant’s written

response to the request for production included only an objection on

confidentiality and institutional safety and security grounds. It did not

include a relevance or proportionality objection. But, unlike Rule 33,

which provides that any ground for objection to an interrogatory is

automatically waived if not timely stated in response to the

interrogatories, Rule 34 does not contain a similar automatic waiver

provision with respect to objections to document requests. Compare Fed.

R. Civ. P. 33(a)(4) with Fed. R. Civ. P. 34(b)(2)(C); see also Allen v. Banner

Life Ins. Co., 340 F.R.D. 232, 239–40 (D.N.J. 2022); Scaturro v. Warren

& Sweat Mfg. Co., 160 F.R.D. 44, 46 (M.D. Pa. 1995). Under the

circumstances presented, and in the absence of any egregious conduct by

the defendant, we decline to find any waiver of the defendant’s relevance

and proportionality objection.

Rule 26(b) of the Federal Rules of Civil Procedure defines the proper

scope of discovery in federal civil actions:

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). Moreover, under Rule 26(b), “courts have broad

authority to impose limits on otherwise relevant discovery when the

discovery sought is unreasonably cumulative, or where the burden or

expense of discovery outweighs its likely benefit.” In re Novo Nordisk Sec.

Litig., 530 F. Supp. 3d 495, 504 (D.N.J. 2021); see also Fed. R. Civ. P.

26(b)(2)(C). “[This] rule of proportionality guards against redundant or

disproportionate discovery by giving the court authority to reduce the

amount of discovery that may be directed to matters that are otherwise

proper subjects of inquiry.” Leski, Inc. v. Fed. Ins. Co., 129 F.R.D. 99, 105

(D.N.J. 1989) (internal quotation marks omitted); see also Novo Nordisk,

530 F. Supp. 3d at 504.

“Relevance is liberally construed[,] especially during discovery.”

Novo Nordisk, 530 F. Supp. at 503; see also Fort Washington Res., Inc. v.

Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994) (“The question of relevancy is

to be more loosely construed at the discovery stage than at the trial.”).

Here, while it is clear from the evidence adduced by the parties that the

report does not directly concern Dooley’s requests for “Stability Code D”

status, it does touch on his mental health status, and it references his

stability code status at the time of the report. In the context of discovery,

the report would appear to be relevant to the plaintiff’s claims, albeit only

marginally so.

Notwithstanding this marginal relevance, we conclude that the

report should not be disclosed. Under the circumstances described by the

parties, this particular report is unreasonably cumulative to evidence

already produced by other defendants,. In particular, we note that the

primary records of Dooley’s mental health treatment and his

classification have already been produced to him by other defendants,

rendering McMahon’s derivative, records-based written evaluation of

Dooley’s suitability for single-cell, Z-code status cumulative and at most

only marginally relevant; McMahon’s August 2021 report is necessarily

based on a review of records alone, and not any contemporaneous

examination of the inmate-plaintiff, as McMahon’s last in-person

encounter with Dooley occurred more than nine years earlier, in January

2012. Moreover, based on the merely tangential relationship of this

report to Dooley’s quest for “Stability Code D” status, the plaintiff’s access

to several hundred pages of primary source material concerning his

classification and mental health treatment produced by other

defendants, and the burden this proposed disclosure would impose on

institutional safety and security interests relative to the marginal-at-

best benefit to the plaintiff’s claims, we conclude that the production of

McMahon’s report is not proportional to the needs of this case.

Having determined that the plaintiff’s request for production of

McMahon’s August 9, 2021, written report is only marginally relevant, is

unreasonably cumulative to materials produced by other defendants, and

is not proportional to the needs of this case, we need not reach the second

ground for withholding the document from disclosure—freestanding

confidentiality and institutional safety and security objections. But we

note that other courts have upheld the very same objections under

similar circumstances. See, e.g., Reaves v. Wetzel, Civil Action No. 16-

1869, 2017 WL 3621575, at *2 (W.D. Pa. Aug. 23, 2017).

Accordingly, the plaintiff’s Rule 37(a) motion to compel (Doc. 95)

will be denied.

That determination, however, leaves us with one last issue to

resolve. Rule 37(a)(5) of the Federal Rules of Civil Procedure provides

that:

If the motion is denied, the court . . . must, after giving

an opportunity to be heard, require the movant, the

attorney filing the motion, or both to pay the party or

deponent who opposed the motion its reasonable

expenses incurred in opposing the motion, including

attorney’s fees. But the court must not order this

payment if the motion was substantially justified or

other circumstances make an award of expenses

unjust.

Fed. R. Civ. P. 37(a)(5)(B) (emphasis added). Although the non-moving

defendant is represented by salaried government attorneys, she

nevertheless may recover an award of costs and attorney fees as a

discovery sanction under Rule 37(a)(5). See United States v. Aldeco, 917

F.2d 689, 690–91 (2d Cir. 1990); United States Dynamic Visions Inc., 307

F.R.D. 299, 302–04 (D.D.C. 2015); see also Commodity Futures Trading

Comm’n v. Trade Exch. Network Ltd., 159 F. Supp. 3d 5, 9 (D.D.C. 2015).

The plaintiff’s financial indigency2 does not exempt him from this

2 Although he has neither moved for nor been granted leave to

proceed in forma pauperis in this federal removal action, we note that the

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discovery sanction. See Snyder v. Citisteel USA Inc., Civil Action No. 04-

970-JJF, 2007 WL 9773663, at *2 (D. Del. 2007); Bosworth v. Record Data

of Md., Inc., 102 F.R.D. 518, 520–21 (D. Md. 1984). Under the

circumstances, however, we find that the plaintiff’s motion was

substantially justified because the plaintiff’s position had a reasonable

basis in fact and law and, thus, there exists a genuine dispute concerning

the defendant’s compliance with the discovery rules. See Fitz, Inc. v.

Ralph Wilson Plastics Co., 174 F.R.D. 587, 591 (D.N.J. 1997) (defining

“substantial justification”) (citing Pierce v. Underwood, 487 U.S. 552, 565

(1988)); see also Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212,

241 (3d Cir. 2007) (citing Fitz); Rorrer v. Cleveland Steel Container, 564

Fed. App’x 642, 644 (3d Cir. 2014) (citing Tracinda and Fitz). Accordingly,

we will order each of the parties to bear his or her own costs with respect

to this motion.

An appropriate order follows.

Dated: May 19, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

plaintiff was granted in forma pauperis status in state court proceedings

prior to removal.