UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WILLIAM COWAN, 

 Plaintiff, 

v. 

TRENT MILLER, et al., 

 Defendants. 

 

Case No. 2:15-cv-12428 

District Judge Gershwin Drain 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

ORDER DENYING PLAINTIFF’S MOTION TO RELEASE MEDICAL 

RECORDS (DE 49) 

 Plaintiff, William Cowan, is a state inmate who is proceeding without the 

assistance of counsel. On September 26, 2016, Plaintiff filed a document titled 

“motion to release medical documents that surrounds the event of July 2, 2014 

only.”1

 DE 49. The entirety of the motion is as follows: “I, William Cowan is 

[sic] filing this motion to release medical documents that contains [sic] to my 

injuries that surrounds the incident of July 2, 2014 ‘only’!” Id. On September 30, 

2016, Judge Drain issued an order referring Plaintiff’s motion to me for resolution. 

(DE 50.) 

 Defendants filed a response in opposition on October 5, 2016, which 

contains two main points. (DE 52.) First, Defendants contend that Plaintiff 

 

1 The Court has standardized the idiosyncratic capitalization used in the motion. 

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recently refused to sign an authorization form for the release of his medical 

information. Second, Defendants note that Plaintiff may obtain his medical 

records via making a proper request pursuant to MDOC Operating Procedure 

03.04.108B “Prisoner Access to Medical Records”.2

 Generally, a party may obtain documentary evidence via making a proper 

discovery request under Federal Rule of Civil Procedure 34, after which the party 

to whom the request is addressed may either comply or object to the request on 

several possible legally cognizable grounds. The instant motion is fatally flawed 

for several reasons. First, Plaintiff has failed to certify, as required by 

Fed.R.Civ.P. 37(a)(1), that he “in good faith conferred or attempted to confer with 

the person or the party failing to make disclosures or discovery in an effort to 

obtain it without court action.” Second, he failed to provide, as required by Local 

Rule 37.2, a “verbatim recitation of each...request...which is the subject of the 

motion or a copy of the actual discovery document which is the subject of the 

motion.” Third, there is no indication that Plaintiff sought the records under 

 

2 The Michigan Department of Corrections (“MDOC”) was dismissed as a party in 

July 2016 (DE 45) but the remaining Defendants, who are MDOC employees, have 

not argued that they are not the custodians of the records which Plaintiff seeks. 

However, Plaintiff’s refusal to sign a form which would provide Defendants with 

access to his medical records would unavoidably inhibit their ability to provide 

those same records to Plaintiff. Nonetheless, given Plaintiff’s failure to seek the 

records in discovery or through the MDOC process (which will be discussed 

further infra) the Court will not definitively opine as to whether Plaintiff’s refusal 

to provide Defendants with access to the records dooms his motion. 

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Fed.R.Civ.P. 34 before filing it. See, e.g., Pasley v. Caruso, 2010 WL 3907497, at 

*1 (E.D.Mich. Sept. 29, 2010) (denying a pro se incarcerated plaintiff’s request for 

medical records because, inter alia, “Plaintiff has not shown that he served 

Defendant Caruso with a proper discovery request pursuant to Federal Rule of 

Civil Procedure 34.”). 3

 

In addition, Plaintiff may obtain the medical records pursuant to making a 

proper request under MDOC Operating Procedure 03.04.108.4

 The volume of 

Plaintiff’s medical records is unclear, so it cannot be known with certainty what 

costs Plaintiff would incur if he received them pursuant to a request under MDOC 

 

3 The Court’s normal practice is to not issue a ruling on a motion until after a reply 

is filed or the time for doing so under E. D. Mich. LR 7.1 has expired. However, 

this is not a typical situation, because no reply brief could cure the inherently fatal 

defects in the motion. Therefore, waiting upon the filing of what would be a futile 

reply brief would only cause an unnecessary delay, especially since a party may 

not raise arguments for the first time in a reply brief. See, e.g., Clark v. Shop24 

Global, LLC, 77 F.Supp.3d 660, 677 n. 6 (S.D. Ohio 2015) (holding that “[a] 

movant cannot raise new issues for the first time in a reply brief because 

consideration of such issues deprives the nonmoving party of its opportunity to 

address the new arguments.”) (quotation marks and citation omitted); Scottsdale 

Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“[W]e have found issues to 

be waived when they are raised for the first time in motions requesting 

reconsideration or in replies to responses.”). 

 

4 Section U of MDOC Operating Procedure 03.04.108 provides in relevant part that 

“[a] prisoner may receive copies of documents generated by the Department and 

contained within his/her health record by making a specific, written request to the 

appropriate health information manager or designee and paying the required perpage fee, as set forth in OP 03.04.108B ‘Prisoner Access to Medical Records.’” 

See

http://www.michigan.gov/documents/corrections/PD_03_04_108_500056_7.pdf

(last visited October 7, 2016). 

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Operating Procedure 3.04.108. Nonetheless, the Court cautions Plaintiff that 

despite his having been granted in forma pauperis status, he is not exempt from 

having to pay all costs incurred in obtaining discovery materials. See, e.g., Pasley, 

2010 WL 3907497, at *1 (“Consequently, even if Plaintiff had sought to obtain his 

medical records from Defendant Caruso pursuant to a proper discovery request, he 

would still be required to pay the cost of copying the records.”); Smith v. Yarrow, 

78 Fed.Appx. 529, 544 (6th Cir. 2003) (“A prisoner plaintiff proceeding in forma 

pauperis may seek a waiver of certain pretrial filing fees, but there is no 

constitutional or statutory requirement that the government or Defendant pay for an 

indigent prisoner's discovery efforts.”). At his option, Plaintiff may therefore wish 

to limit the scope of his request, e.g., by date range, medical provider, etc., in light 

of these economic considerations. 

In short, there is no indication that Plaintiff made any prior efforts to obtain 

the medical records via either propounding to Defendants a discovery request or by 

making a request through MDOC Operating Procedure 3.04.108. Instead, the 

motion appears to be an effort by Plaintiff to obtain materials with this Court’s 

involvement, and for free. Consequently, the motion is DENIED. 

IT IS SO ORDERED. 

Dated: October 14, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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I hereby certify that a copy of the foregoing document was sent to parties of record 

on October 14, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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