UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GARY L. MCCOY,

Plaintiff, Case No. 3:17-cv-432

vs.

DR. RODNEY L. CARLSON, et al., District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendants.

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ORDER AND ENTRY GRANTING PLAINTIFF’S THIRD MOTION FOR AN 

EXTENSION OF TIME TO FILE AN AFFIDAVIT OF MERIT

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This civil case is before the Court Plaintiff’s motion for a third extension of time to file an 

affidavit of merit. Doc. 26. Plaintiff argues that an extension is necessary because he has not yet 

received copies of his medical records from Pickaway Correctional Institution (“PCI”) and, 

therefore, his expert has been unable to review such records in preparation of an affidavit of merit. 

Doc. 26 at PageID 92-95. Defendants have filed a memorandum in opposition to Plaintiff’s 

motion. Doc. 27. In their opposition, Defendants argue that any delay at this point in obtaining 

medical records from PCI is a delay occasioned solely as a result of Plaintiff’s refusal to reimburse 

Defendants $0.05 per page in copying expenses for reproducing his medical records for production

(a total of $102.20). See id. at PageID 135-38. Plaintiff timely filed a reply memorandum. Doc. 

28. Having carefully considered all of the foregoing, Plaintiff’s motion is now ripe for decision.

At the outset, the Court notes well-established precedent that “the ‘right of access’ the 

courts have developed a distinction between actual access to the court and procedures essential to 

the trial process.” Johnson v. Hubbard, 698 F.2d 286, 288 (6th Cir. 1983). In other words, while 

in forma pauperis status entitles Plaintiff to proceed without the payment of filing fees, “there is 

no constitutional requirement to waive” other costs associated with litigation, id., and certainly 
“no constitutional or statutory requirement that the defendants pay for [a plaintiff’s] discovery 

efforts.” Hendricks v. Ohio Dep’t of Rehab. & Correction, No. 2:11-CV-40, 2011 WL 3652423, 

at *10 (S.D. Ohio Aug. 18, 2011).

Here, Plaintiff appears willing to pay Defendants for costs associated with producing a 

copy of his medical records but argues that the $102.20 fee requested is unreasonable under federal 

law, namely 42 U.S.C. § 17935 and 45 C.F.R. § 164.524. The federal law cited by Plaintiff states 

that, where an “individual requests a copy of protected health information . . . the covered entity 

may impose a reasonable, cost-based fee, provided that the fee includes only the cost of . . .” inter 

alia, labor, supplies and postage. 45 C.F.R. § 164.524(c)(4). 

Insofar as Defendants maintain Plaintiff’s medical records in a non-electronic form (i.e., 

on actual paper), it does not appear to the undersigned that the requested fee of $0.05 per page is 

unreasonable. If Plaintiff’s medical records are maintained in an electronic form -- which is 

unclear from the parties’ submissions to the Court at this time -- perhaps the $102.20 fee requested 

by Defendants is not reasonable. Based on the current record before the Court, however, the 

undersigned cannot make such a determination. Instead, the Court ORDERS that counsel confer

in good faith to promptly accomplish the production of Plaintiff’s medical records.

Accordingly, the undersigned GRANTS Plaintiff’s motion for an extension of time to 

comply with the affidavit of merit requirement in Ohio Civil Rule 10(D). Plaintiff shall file an 

amended complaint with attached affidavit(s) of merit on or before November 26, 2018. The 

undersigned anticipates granting no further extensions of time in this regard in the absence of 

extraordinary circumstances.

IT IS SO ORDERED.

Date: August 24, 2018 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge