The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN DALE PREACHER, )
)
Plaintiff ) Case No. 2:19-cv-1207
)
vs. ) CATHY BISSOON
) UNITED STATES DISTRICT JUDGE
)
) RICHARD A. LANZILLO
CORRECT CARE SERVICES et al., ) UNITED STATES MAGISTRATE JUDGE
)
Defendants )
) MEMORANDUM OPINION AND
) ORDER ON PLAINTIFF'S MOTION TO
) COMPEL DISCOVERY [ECF NO. 179]
I. Introduction
Plaintiff John Dale Preacher, an inmate currently incarcerated at the Pennsylvania State
Cortectional Institution at Greene (SCI-Greene), commenced this § 1983 civil rights action against
Correct Cate Services (Correct Care) and medical personnel employed by Correct Care as well as
numerous individuals employed by the Pennsylvania Department of Corrections at SCl-Greene.
Presently, twenty-nine defendants remain as parties to this action: twenty-six individual employees
of the DOC (DOC Defendants) and Correct Care and two Correct Care physicians, Dr. Kaufnan
and Dr. Kross (collectively, Medical Defendants). Preacher’s motion to compel discovery (ACF No.
179) against all Defendants is pending before the Court. For the reasons discussed below,
Preacher’s motion is GRANTED in part and DENIED in part.
II. Preacher’s Claims
Patties may obtain discovery regarding any nonprivileged matter that 1s relevant to any
patty’s claim or defense, and for good cause, the Court may order discovery of any matter relevant
to the subject matter involved in the action. Fed. R. Civ. P. 26(b)(1). Accordingly, before turning to
the specific discovery requests at issue, it is appropriate to identify Preacher’s claims in this action.
This is a challenging task because Preachet’s two hundred twenty-six-page Amended Complaint is
simultaneously verbose and vague.'
The Amended Complaint (ECF No. 119) asserts a multitude of claims against the
Defendants, including violations of his rights under the First, Eighth, and Fourteenth Amendments
to the U.S. Constitution and state law. Although the Amended Complaint defies ready
summarization, it appears to be based primarily upon Preacher’s assertions that Defendants have (1)
held him “hostage in the Restricted Housing Unit (RHU)” at SCI-Greene and wrongfully continued
his status in the Security Threat Group Management Unit (STGMU) and on the Restricted Release
List, allegedly in retaliation for filing grievances and lawsuits, (2) denied him necessary medical care
for a hand injury and mental health needs, and (3) subjected him to sexual harassment by corrections
officers. His theories of liability include retaliation, deliberate indifference to serious medical needs,
failure to protect, procedural due process, sexual harassment, conspiracy, and negligence.
The factual narrative upon which Preacher bases his claims begins on December 28, 2016,
when Preacher was transferred from the Restricted Housing Unit at SCI-Forest to SCI-Greene.
Upon Preacher’s arrival at SCI-Greene, the Prison Review Committee advised him that “based upon
SCI-Forest’s recommendations,” he would pose a security risk if housed in the general population
1 Preacher’s original Complaint was three hundred ninety-seven-pages in length. ECF No. 1. Both his original
Complaint and his Amended Complaint included essentially a log of events peppered with labels such as “harassment,”
“retaliation,” and “abuse” and adjectives such as “fraudulent” and “dishonest.”
and, therefore, he instead would be housed in the Special Management Unit and may be included on
the Restrict Release List (RRL). ECF No. 119, 9924-25. According to Preacher, various Defendants
“maliciously and sadistically” informed him that he could only be considered for transfer to the
general prison population if he completed a “step-down” program. Id. at 45. While Preacher was
housed in the SMU, he challenged his placement, but various DOC Defendants refused his requests
for transfer; other DOC Defendants upheld these determinations after Preacher filed administrative
appeals. During this same period, other DOC Defendants allegedly engaged in vaguely described
and frequently unspecified forms of assault and harassment. Id. at [J 25-302.
Ill. Preacher’s Discovery and Prior Motion Practice
Plaintiff has served the following written discovery upon the Defendants to which they
responded:
of documents (ECF No. 77)
documents (ECF No. 87)
documents (ECF No. 90)
of documents (ECF No. 110)
May 21, 2020 Fifteen (15) combined interrogatories and requests for production of
documents (ECF No. 113
Faced with successive rounds of discovery totaling 246 requests, many of which Defendants
considered to be objectionable, Defendants filed motions requesting the entry of a protective order.
ECF Nos. 114, 115. On June 3, 2020, the Court entered an Order granting Defendants’ motions
and stating in relevant part as follows:
Having considered the claims asserted in the Complaint, the
discovery requests served to date, and considerations of
proportionality, the Court hereby limits Preacher to one final set of
wtitten discovery requests consisting of no more than 25 requests,
including subparts, whether they take the form of interrogatories,
requests for production or requests for admissions. If Preacher
wishes to setve any requests beyond the final set authorized in this
Order, he must file a motion with the Court requesting leave to do so
and attach his proposed additional discovery requests to the motion.
Leave to serve any additional discovery will be granted only upon
Preacher's showing of good cause and substantial need.
ECF No. 117.
On June 28, 2020, Preacher served a further set of discovery requests directed to all
Defendants. This discovery consisted of fifteen additional requests for production of documents
and five additional interrogatories. ECF No. 137.
On July 8, 2020, Preacher filed a motion to compel discovery against all Defendants.
Because of the lengthy and argumentative nature of the motion, the Court was unable to determine
which of Defendants’ responses Preacher was challenging as tmproper. Apparently, Preacher
expected the Court to review each of his discovery requests and the Defendants’ objections and
responses thereto and determine whether each objection or response was appropriate. The Court
declined to do so. See Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D.Cal. Jan.13, 2012) (where the
responding party objects to a discovery request, the party moving to compel bears the burden of
demonstrating why the objections are not justified); E/ks ». Cambra, 2008 WL 860523, at *4 (E.D.Cal.
Mar. 27, 2008). A party moving to compel discovery must reasonably inform the Court which
discovery requests ate the subject of the motion to compel, and, for each disputed response, why the
information sought is relevant and why the responding party's objections are not meritorious.
Grabek, 2012 WL 113799, at *1; Womack v. Virga, 2011 WL 6703958, at *3 (E.D.Cal. Dec.21, 2011).
Preacher failed to do so. Accordingly, on September 28, 2020, the Court entered an Order denying
Preachet’s motion, but the Order was expressly without prejudice to Plaintiffs right to file a
renewed motion identifying specifically which interrogatories, requests for production and/or
requests for admissions and responses were the subject of the motion. ECF No. 172.
While his initial motion to compel discovery was pending, Preacher served additional
discovery on the Defendants consisting of five interrogatories. ECF No. 148.
IV. Preacher’s Renewed Motion to Compel
On October 15, 2020, Preacher filed a second Motion to Compel Discovery as well as a
supporting brief and Declaration. See ECF Nos. 179-181. Although these submissions include
significant recitations of Preacher’s claims and argument regarding their merit, the Court has
identified the following categories of discovery requests that appeat to be the subject of Preacher’s
renewed motion.’
2 The Court is addressing the disputed discovery responses categorically because any attempt to do so on a request by
request basis would be impractical. The subjects of Preachet’s discovery ate scattered among hundreds of
interrogatories, requests for production of documents, and requests for admissions, many of which are redundant or
overlapping in subject matter.
A. Preacher’s “Complete Psychological Records”
In his interrogatories to Defendants, Preacher requested his “complete psychological records
for inspection.” ECF No 77, 7. This request was followed by others of a similar nature including
requests for:
e The psychological evaluations /assessments of Plaintiff conducted by Psychological
Services Specialist Ms. Stacie Karp at SCI-Greene on or about January 23, 2017 for
purposes of SMU (Special Management Unit) placement.
e The psychological evaluation/recommendation from SCI-Waymart’s Special
Assessment Unit Team (Dr. Difebo; Ms. Janes and Ms. Riggle) in relation to the
SMU Program referral dated on or about June/May 12", 2017 to June 9, 2017.
e The psychological evaluation of assessment conducted by PSS Weeden at SCI-
Greene on or about January 25, 2019, for purposes of the STGMU teferral
conducted at SCI-Green.
e The psychological evaluation/assessment in relation to Plaintiffs placement on the
Restricted Release List conducted by PSS Weeden on or about August 29, 2019 at
SClI-Greene.
e The recommendations provide (sic) by the Special Assessment Unit Team at SCI-
Waymart in relation to the S.M.U. referral submitted by SCI-Greene officials on ot
about 1-23-2017; S.A.U. Team recommendations on or about June 5, 2017.
Defendants have objected to these requests on the grounds that they seek “confidential,
subjective mental health information pertaining to the assessment and treatment of Plaintiff’ and
that “[rJelease of this information to Plaintiff may pose a secutity risk to staff and/or the
institution.” Treating similar objections as assertions of privilege, courts in this circuit have
recognized their legitimacy. See Mearin v. Folino, 2012 WL 4378184, at *4 (W.D. Pa. Sept. 24, 2012);
Mercaldo v. Wetzel, 2016 WL 5851958, at *6 (M.D. Pa. Oct. 6, 2016); Spencer v. Collins, 2013 WL
5176747, at *2 (M.D. Pa. Sept. 12, 2013); Brown v. Martinez, 2006 U.S. Dist. LEXIS 29772, at *6-9
(M.D. Pa. May 12, 2006); Mincy v. Chmielewskt, 2006 U.S. Dist. LEXIS 77595, at *5—8, 2006 WL
3042968 (M.D. Pa. Oct. 25, 2006); Griffin-Fi v. Beard, 2009 WL. 678700, at *8 (E.D. Pa. Mar. 16,
2009), order corrected on reconsideration, 2009 WL 1229599 (E.D. Pa. Apr. 30, 2009); Whetstone v. Bohinski,
2010 WL 785246, at *2—3 (M.D. Pa. Mar. 3, 2010), modified on reconsideration, 2010 WI. 1505906 (M.D.
Pa. Apr. 13, 2010). In Mearmn, an inmate plaintiff sought mental health records to which the
defendant objected on the grounds that the information was privileged, confidential, and sensitive.
2012 WL 4378184, at *4. The defendant asserted that “allowing an inmate to be privy to his mental
health records could permit the inmate to manipulate his treatment and frustrate the goals of his
treatment by interfering with a candid analysis of the inmate. Moreover, divulging an inmate's mental
health records would subject any staff member involved in Plaintiff's treatment to retaliation.” Id,
There, the Court declined to order production of the records, in part persuaded by the defendant’s
reasoning, but also because the plaintiffs requests were overbroad and largely irrelevant to his
claims. Id. at *5,
Similarly, in vertas v. Beard, , 2012 WL 3096430 (W.D. Pa. Jul. 30, 2012), the Court declined
to grant an inmate plaintiffs motion to compel production of psychological records because the
plaintiffs complaints of decreased vision, eye pain, headaches and photophobia were not sufficiently
relevant and “unpersuasive in light of the security concerns asserted by Defendants.” 2012 WL
3096430 at *9. See also Spencer, 2013 WL 5176747, at *2 (inmate’s motion to compel production of
his psychiatric records denied because defendants’ security concerns were “Sustified,” and plaintiff
was not challenging his mental health treatment).
The security concerns underlying such objections seem particularly weighty when the
psychological records requested relate to officials’ assessments of whether a prisoner presents a
security or mental health risk requiring his placement in a special housing unit. At the same time,
many courts confronting such objections have required in camera production and review of the
requested records in order to scrutinize and weigh the relevance of the records against the security
concerns raised by the defendants. In camera review is patticularly appropriate where mental health
records are televant to the plaintiff's claim and a correctional defendants wholesale decline to
ptoduce those records on the basis of confidentiality or security. The Court adopted this approach
in Griffin-E/ v. Beard. There, the Court followed the reasoning of both Brown and Mincy in ordet to
come up with an atrangement where the Department of Corrections would produce a privilege log
and supporting documentation to the Court, which would then then proceed to “[weigh] the
assetted security concerns against the relevance of the documents to Plaintiff's claims” via za camera
review. Id. at *8-9 (citing Brown, 2006 U.S. Dist. LEXIS 29772, at *6—-9; Mincy, 2006 U.S. Dist.
LEXIS 77595, at *5—8, 2006 WL 3042968. In Brown, the Coutt ordered in camera teview of
psychological records in dispute between an inmate plaintiff and defendants. 2006 U.S. Dist. LEXIS
29772, at *4. After that review, Chief Judge Vanaskie granted the defendants’ motion for protective
order, deeming the documents irrelevant to plaintiffs claims in relation to the defendants’
documented security concerns. Id. at *9.
This balanced approach has historically been favored, even when privileged information is
implicated. In Kerr v. U.S. Dest. Court for Northern Dist. of Cakforma, the Supreme Court considered
whether a wtit of mandamus was appropriate in a case where California state prisoners in a class
action lawsuit requested documents that were asserted to be irrelevant, confidential, and privileged.
426 U.S. 394 (1976). After weighing the competing interests of all the parties, the Court noted that
“in camera review 1s a highly appropriate and useful means of dealing with claims of governmental
privilege.” Id. at 406. In addition, the United States Court of Appeals for the Third Circuit has
stated “[t]he indiscriminate claim of privilege may in itself be sufficient reason to deny it.” United
States v. O'Neill, 619 F.2d 222, 227 (3d Cir. 1980). “If a valid claim of privilege is properly invoked,
the party who seeks the information must show the need for it so that the Court can “balance on
one hand the policies which give rise to the privilege and theit applicability to the facts at hand
against the need for the evidence sought to be obtained in the case at hand.” Id. (citing Riley v. City of
Chester, 612 F.2d 708 at 716 (3d Cir. 1979)).
In the present case, a question exists whether the records requested by Preacher are relevant
to his claims. He apparently desires production of his psychiatric records in order to challenge his
placement in the STGMU. However, STGMUs like the one maintained at SCI-Greene further the
specific and legitimate penological interest of reducing the risk of violence presented by certain
inmates. Fraise v. Terhune, 283 F.3d 506, 520-523 (3d Cir. 2002). An inmate’s transfer to the STGMU
does not violate his substantive due process tights. Id. Further, an inmate assigned to the STGMU
has procedural remedies available to challenge that assignment. Douglas ». McAnany, 2012 WL
6763586, at *3 (W.D. Pa. Dec. 21, 2012), report and recommendation adopted sub nom. Reid-
Douglas v. McAnany, 2013 WL 42377 (W.D. Pa. Jan. 3, 2013). It also appears that Preacher may
desire these records because he wishes to challenge the adequacy of his psychiatric treatment under
the Eighth Amendment, although this is far from clear from his pleadings and other submissions.
Notwithstanding these questions of relevance and the legitimacy of the security to concerns
expressed by the Defendants, the Court finds that an approach like that followed by the coutts in
Brown and Mincy 1s appropriate in this case. ‘The Defendants will be ordered to produce Preachet’s
psychological records and records regarding his placement in the STGMU for in camera review by the
Court to the extent such records are within theit possession, custody or control.? However, the
breath of Preacher’s request for such records is excessive. The Defendants’ production of these
records is limited to the petiod December 28, 2016, the date of Preacher’s transfer to SCI-Greene,
through September 20, 2019, the date Preacher commenced this action. Upon receipt, the Court
will review these records, weigh their potential relevance against the security and confidentiality
concerns raised by Defendants, and determine to what extent, if any, they are subject to production
to Preacher.
B. Documents Concerning Possible Mistreatment of Other Inmates
Preacher moves to compel responses to Requests Nos. 2, 3, and 4 of his Second Request for
Production of Documents. Request No. 2 demanded production of “any and all statements made
by Defendants in relation to any investigations, grievances or PREA reports for the use of force,
sexual abuse. If statements are made in any other document, produce the documents.” ECF No.
78. The DOC Defendants objected to this request as “vague, overbroad, and unduly burdensome,”
and specifically noted that “there ate over twenty (20) DOC Defendants named in this lawsuit, from
more than two (2) State Correctional Institutions, and some are retired from DOC employment.”
ECF No. 187-1. They also objected to the request as seeking itrelevant and personal and
confidential information which may pertain to other inmates and/or staff. Id. The Court finds that
Preacher’s request is grossly overbroad, seeks irrelevant information, and is significantly
disproportionate to the needs of the case. Preacher did not limit his request to any specific
Defendant, to events or even to matters relating to himself. The Court will not rewrite his discovery
request to make it reasonable in scope.
? The Court recognizes that although Preacher frequently directs his discovery to all Defendants, not all are able to
produce what he wants.
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Request No. 3 of Preacher’s Second Request for Production sought “any and all disciplinary
and personal complaints made against the Defendants, other than or by any other person besides the
Plaintiff” Defendants objected to this request on various grounds, including that it was overly
broad and sought documents that were neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Defendants objected to Request No. 4, which sought “prior
civilian complaints against the Defendants for incidents of assault and battery, sexual abuse,
negligence, and delayed medical care,” on the same basis. Jd. Defendants’ objections to these
requests are appropriate and well-taken. Prior misconduct of defendants may be discoverable where
a pattern of similar misconduct is at issue. See eg., Rega v. Beard, 2010 WL 1253531, at *9 (WD. Pa.
Mar, 24, 2010). This, however, is not such a case. See Coit v. Garman, 2018 WL 3818853, *3 (M.D.
Pa. Aug. 10, 2018); Lofton v. Wetzel, 2015 WI. 5761918, *2 (M.D. Pa. Sept. 9, 2015). Here, the breath
and indiscriminate nature of Preacher’s requests directed to essentially every Defendant, including
the Medical Defendants, reveals it is a true “fishing expedition” on matters of no relevance to the
issues in this case. Preacher has not alleged facts to support a Monell policy ot custom claim or any
other pattern of misconduct that would justify these requests. The Court also finds that the requests
are not likely to lead to the discovery of admissible evidence and ate substantially disproportionate
to the needs of the case. Finally, to the extent similar requests were posed to the Medical
Defendants, the suffer from the same defects and sought documents pertaining to other inmates
that are protected by HIPAA privacy laws. Preachet’s motion to compel production of these
records will be DENIED.
C. Video Evidence
Preacher asserts that the Defendants are “intentionally suppressing” video of “incidents of
extraordinary occurrences” in “violation of Brady v. Maryland, 373 US. 83, 83S. Ct. 1194, 10 L. Ed.
11
2d 215 (1963). ECF No. 179, p.35. Preacher states that his first set of interrogatories and request
for documents included a request that Defendants produce “video footage of H-Unit at 11 a.m. to 2
and that the DOC Defendants objected to this request on the grounds of relevance and
responded that “security at SCI-Somerset has confirmed Plaintiff was not involved in any
extraordinary occurrence on this date, therefore, no video footage was retained.” Id, p. 36. The
DOC Defendants have adequately responded that they are not in possession, custody ot control of
video for the date, time and location specified by Preacher. In addition, Preacher has not offered an
adequate explanation regarding what “extraordinary occurrence” occurred to allow the Coutt to
overtule the DOC Defendants’ relevancy objection.
Preacher also demands production of videos he believes were recorded on approximately
nine other occasions. See 7d; ECF No. 187-2, 8-11, 13-17, 21. As to each of these occasions, the
DOC Defendants have asserted the same relevancy objection and explained that no video from
these occasions has been preserved because Preacher was not involved in any extraordinary
occurrences on those dates, Preacher may challenge the failure to preserve video for the dates in
question, but for purposes of the pending motion to compel, the DOC Defendants have responded
that they do not possess any such video. The Court cannot compel production of materials that do
not exist ot concerning which a defendant lacks possession, custody or control. Preachet’s motion
to compel production of videos will be DENIED.
D. Discovery Concerning the Standard of Care
In his seventh set of interrogatories, Preacher posed the following questions:
8. What is the Standard of Care owed to Prisoners?
KK
10. What ts the Policy or Custom utilized when delivering medical cate to
Prisoners?
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11. If an injury such as a dislocated bone or fractured ligament is left untreated
and/or without any assistive or supportive device, would that cause injuries
to worsen?
Although the scope of discovery is broad under Rule 26(b), a patty may not discover mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation. Runyan v. Sybase, Inc, 1993 WL 377062, *6 (E.D. Pa. Sept. 16, 1993) (citing
Fed. R. Civ. P. 26(6)(3)). Furthermore, interrogatories may not call for conclusions of law, a party’s
conception of the law as applied to the particular facts or seek what legal principles on which a party
will rely. Id. (citing 8 Chatles A. Wright &Arthur A. Miller, Federal Practice and Procedure § 2167
(1970)). The interrogatories at issue call for purely legal conclusions on issues in this case. Preacher
explicitly asks Dr. Kross to identify the “standard of care,” as well as the “policy or custom” when
delivering medical care to inmates. Preacher also asks whether leaving an injury untreated would
cause that injury to worsen, which is simply another way of framing the central allegation that
Preacher has levied against Dr. Kross. In addition to being overly broad, such interrogatories ate
the quintessential examples of improper interrogatories seeking legal conclusions. Accordingly,
Preachetr’s motion to compel answers to these interrogatories will be DENIED.
ORDER
As set forth in the foregoing Memorandum Opinion, Plaintiff's Motion to Compel
Discovery (ECF No. 179) is GRANTED in part and DENIED in part. The motion is GRANTED
in that Defendants are ordered to produce to the Court only and for i camera review Plaintiff's
psychological records and records regarding his placement in the STGMU for the period December
28, 2016 through September 20, 2019. Upon receipt, the Court will review these records, weigh
their potential relevance against the security and confidentiality concerns raised by Defendants, and
13
determine to what extent, if any, they are subject to production to Plaintiff. In all other respects,
Plaintiffs Motion to Compel is DENIED.
Entered this 30" day of November, 2020.
KE A.LA A i
United States Magistrate Judge
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