IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James J. Prince,

Plaintiff

 v.

Dr. Cha, et al.,

Defendants

:

:

:

:

:

Civil Action 2:13-cv-00035

Judge Watson

Magistrate Judge Abel

ORDER

This matter is before the Magistrate Judge on plaintiff James J. Prince’s February

13, 2014 second motion to compel discovery requests (doc. 53). Defendants maintain

that plaintiff’s motion to compel should be denied because he failed to make any effort

to resolve this discovery dispute informally and because the motion was filed after the

close of discovery. Defendants also maintain that they have no documents in their

possession, custody or control that are responsive to his requests.

To obtain discovery, the information sought must meet the requirement of Rule

26(b)(1) that it be relevant to the claim or defense of any party. If the discovery sought

is relevant, under Rule 26(b)(2)(C)(I) the court may nonetheless limit discovery that is

unreasonably cumulative, duplicative, or “obtainable from some other source that is

more convenient, less burdensome, or less expensive . . . .” The court may also 

consider whether the “burden or expense of the proposed discovery, outweighs its

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likely benefit, taking into account the needs of the case, the amount in controversy, a

party's resources, the importance of the issues at stake in the litigation, and the

importance of the proposed discovery in resolving the issues.” Rule 26(b)(2)(C)(iii),

Fed. R. Civ. P. Moreover, the court has the power to issue a protective order to prevent

a party or third party to the litigation from experiencing “annoyance, embarrassment,

oppression, or undue burden or expense” of discovery. 

Plaintiff argues that because he represents himself he is authorized under the

Ohio Department of Corrections and Rehabilitation (“ODRC”) policy to obtain a copy of

his prison medical records. Defendants incorrectly rely on section 5120.21 of the Ohio

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Revised Code1

 for the assertion that plaintiff’s medical records are not subject to

discovery. ODRC Policy 07-ORD-11 provides: 

a. Offenders wishing to review their personal current active medical

record may do so once each quarter by sending a request in writing to the

institution Health Care Administrator. 

b. The Health Care Administrator will arrange a convenient time for the

offender to review his or her medical record. A medical staff employee

must be present during the entire time that the offender is reviewing the

medical record. 

c. No copies of the medical file may be made for the offender. 

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Section 5120.21(C) states:

(C)(1) As used in this division, “medical record” means any

document or combination of documents that pertains to the

medical history, diagnosis, prognosis, or medical condition of a

patient and that is generated and maintained in the process of

medical treatment.

(2) A separate medical record of every inmate in an institution

governed by the department shall be compiled, maintained, and

kept apart from and independently of any other record pertaining

to the inmate. Upon the signed written request of the inmate to

whom the record pertains together with the written request of

either a licensed attorney at law or a licensed physician designated

by the inmate, the department shall make the inmate's medical

record available to the designated attorney or physician. The record

may be inspected or copied by the inmate's designated attorney or

physician. The department may establish a reasonable fee for the

copying of any medical record. If a physician concludes that

presentation of all or any part of the medical record directly to the

inmate will result in serious medical harm to the inmate, the

physician shall so indicate on the medical record. An inmate's

medical record shall be made available to a physician or to an

attorney designated in writing by the inmate not more than once

every twelve months.

Ohio Rev. Code § 5120.21(C).

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d. The offender is permitted to take notes, but with a pencil only. 

e. In the event of ongoing litigation, the Ohio Attorney General’s Office or

DRC Legal Department may put in place alternate access to the medical

file for an offender on a case-by-case basis. 

Defendants are ORDERED to provide plaintiff an opportunity to review his medical

records. 

Plaintiff argues that under ODRC Policy 79-ISA-01, documents in Dr. Cha’s

employee file concerning sexual misconduct and documents concerning Dr. Cha and

Short-Tucker’s resignation are not deemed confidential. Plaintiff seeks permission to

review Dr. Cha’s employee file or other North Central Correctional Institution

administration file concerning grievances related to sexual misconduct or investigations

conducted as a result of plaintiff’s complaint of sexual misconduct. In response to this

request, defendants asserted that this information is confidential and unlikely to lead

the discovery of admissible evidence. Additionally, defendants maintain that there are

no responsive documents. 

If plaintiff in fact reported that Dr. Cha engaged in sexual misconduct, it appears

that an investigation would have occurred. ODRC Policy 79-ISA-01(V) states that “[a]ll

allegations of sexual misconduct and/or sexual harassment shall be administratively

and/or criminally investigated.“ Defendants maintain, however, that no responsive

documents exist. The Court cannot compel defendant to produce what does not exist.

Defendants, however, are obligated to respond honestly and completely to discovery

requests, and failure to do so will result in sanctions. Bratka v. Anheuser-Busch, 164

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F.R.D. 448, 463 (S.D. Oh. 1995). In their response in opposition to the motion to compel,

defendants failed to make any substantive response to this discovery request or to

demonstrate that the burden of the proposed discovery outweighs its likely benefit. 

Plaintiff also seeks production of the medical contract between defendant Dr.

Keaton and North Management Training Corporation for the medical treatment of

inmates at North Central Correctional Complex. In their response in opposition to the

motion to compel, defendants failed to make any substantive response with respect to

this discovery request or to demonstrate that the burden of the proposed discovery

outweighs its likely benefit.

Plaintiff James J. Prince’s February 13, 2014 second motion to compel discovery

requests (doc. 53) is GRANTED. Defendants are DIRECTED to permit plaintiff to

inspect his medical records and review, and if necessary, supplement, their responses to

plaintiff’s requests within fourteen (14) days of the date of this Order. If defendants

locate responsive documents but conclude disclosure of such documents would be

detrimental, they should file a protective order in accordance with Rule 26(c) of the

Federal Rules of Civil Procedure. 

Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P., and

Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days

after this Order is filed, file and serve on the opposing party a motion for

reconsideration by the District Judge. The motion must specifically designate the

Order, or part thereof, in question and the basis for any objection thereto. The District

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Judge, upon consideration of the motion, shall set aside any part of this Order found to

be clearly erroneous or contrary to law.

s/Mark R. Abel 

United States Magistrate Judge

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