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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID EUGENE GRAHAM,

Plaintiff,

v. CASE NO. 5:10-cv-00065-RS-GRJ

S CARROLL, et al,

Defendants.

_____________________________/

O R D E R

Pending before the Court are: (1) Defendants’ Motion to Compel (Doc. 32) and

(2) Defendants’ Motion for Extension of Time. (Doc. 33.) The Plaintiff has not filed

responses and the time for doing so has passed. For the reasons discussed below, 1

Defendant’s Motion to Compel is due to be denied and Plaintiff’s Motion for Extension

of Time is due to be granted the motion to compel is due to be DENIED. 

DISCUSSION

In Plaintiff’s Third Amended Complaint, Plaintiff alleges that Defendants Searcy

and Witalec – two correctional officers at Northwest Florida Reception Center – used

excessive force by unnecessarily spraying Plaintiff with chemical agents causing severe

burns to Plaintiff’s skin and respiratory system. (Doc. 16.) Defendants contend that

they must have access to Plaintiff’s medical records in order to formulate a response to

Plaintiff has filed a Motion for Entry of Default. (Doc. 34.) While this filing does not constitute a

1

response to the motions it is evident that the Plaintiff opposes Defendants’ request for an extension of

time. The motion for entry of default is due to be denied because Defendants’ Motion to Compel and

Motion for Extension of Time are more than sufficient to demonstrate that Defendants have not failed to

“otherwise defend” as required by Rule 55(a) of the Federal Rules of Civil Procedure before a default may

be entered.
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Plaintiff’s Third Amended Complaint. According to Defendants, they have requested

Plaintiff to sign a HIPPA release but Plaintiff has refused to do so. Consequently, 2

Defendants request the Court to enter an order compelling Plaintiff to sign a HIPPA

release or in the alternative, to dismiss Plaintiff’s Eighth Amendment excessive force

claim. In their motion for extension of time Defendants request the Court to enter an

order enlarging the time within which Defendants must respond to Plaintiff’s Third

Amended Complaint by thirty days from the date the Court rules on Defendants’ Motion

to Compel. 

Without citing to any authority Defendants contend that Plaintiff should be

compelled to execute a HIPPA release because Plaintiff has placed his medical

condition at issue by alleging that he suffered injuries as a result of Defendants’ actions. 

Discovery has not yet commenced because the Court has not yet issued a

scheduling order. Further, because the Plaintiff is a prisoner and is not represented by

an attorney, the case is exempt from the initial disclosure requirements of Fed. R.

Civ.P. 26(a)(1). See, N.D.Fla.Loc.R. 26.1(A). As such, Plaintiff is not yet obligated to

provide any discovery. 

Moreover, even assuming Defendant’s request that Plaintiff execute a HIPPA

release was made during discovery, Plaintiff would not be obligated to do so. Rule 34

of the Federal Rules of Civil Procedure requires a party to produce all “documents and

things” over which the party has “possession, custody or control.” Thus, there is

nothing in the wording of the Rule that would require a plaintiff to execute a consent or

The Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq.

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Case No: 5:10-cv-00065-RS -GRJ
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medical release unless the Plaintiff wishes to do so voluntarily. 

Case law in this circuit is not instructive in view of the fact that the Eleventh

Circuit has never directly addressed the issue of whether a party can be compelled to

execute a medical release. The issue has been addressed, however, by several district

courts from other circuits. 

For example, in Clark v. Vega Wholesale, Inc., 181 F.R.d. 470, 472 (D. Nev.

1998) the United States District Court for the District of Nevada refused to order a party

to execute a medical release in response to a Rule 34 request to produce finding that

because the Plaintiff did not have exclusive control of the documents, the relationship

between the plaintiff and her doctor was not sufficient to establish control for purposes

of Rule 34. That position is also consistent with the position taken by the District Court

of Colorado in Neal v. Boulder, 142 F.R.D. 325 (D. Colo. 1992)(finding no basis under

Fed.R.Civ.P. 34 that allows courts to compel releases for the medical records because

of the plaintiffs’ lack of custody of the records). 

This position is, however, not universal. For example, in Smith v. The Logansport

Community Sch. Corp., 139 F.R.D. 637, 649 (N.D. Ind. 1991), the Northern District of

Indiana directed the plaintiff to execute a release of her counseling records, finding that

where “the mental or physical condition of a party has been placed in issue, the practice

of obtaining written consents for the release of records represents the least expensive

and most efficient means of procuring information rom medical or counseling

providers.” 

While the Court acknowledges that in some circumstances, compelling a party to

execute releases may be a more expedient and less costly method for a party to obtain

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the desired information from a third party, the Court, nonetheless, concludes that the

reasoning in Clark to be more consistent with Rule 34, and therefore, the Court declines

to order that the Plaintiff be compelled to execute a medical release form.

The fact that the Plaintiff has filed a lawsuit placing his medical condition in issue

does not waive the confidentiality of Plaintiff’s medical records. Thus, under HIPPA the

filing of a lawsuit does not waive the confidentiality of health information, and unless the

patient gives written consent the medical provider may only disclose confidential health

information under the steps outlined in HIPPA.

Therefore, although the Court declines to compel Plaintiff to execute a HIPPA

release, when discovery commences Defendants will be entitled to obtain the required

medical records (even though Plaintiff has refused consent) in several ways under

HIPPA. Counsel may obtain a court order which allows the health care provider to

disclose “only the protected health information expressly authorized by such order.” 45

C.F.R. 164.512(e)(1)(I). In the absence of a court order counsel may avail herself of

additional methods used in conjunction with traditional means of discovery. These

additional methods include obtaining the information through a subpoena or request to

produce in compliance with the requirements of 45 C.F.R. § 164.512(e). 

Thus, in sum while Defendants cannot compel Plaintiff to execute a HIPPA

release simply because Plaintiff filed a lawsuit placing his medical condition in issue

Defendants will be entitled to obtain this information, if necessary, through the

procedures for disclosure of medical records provided in HIPPA. 

The Court appreciates that the medical records could be very relevant to

Defendants’ defense to the claims in this case. The medical records, however, are not

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essential to the formulation of a response to the Third Amended Complaint. Indeed,

most defendants responding to complaints are fully able to do so without the benefit of

discovery and without the benefit of access to all of a plaintiff’s medical records. To the

extent that medical information is relevant to Defendant’s defense Defendants will have

full and fair opportunity to obtain the records in discovery and full and fair opportunity to

use the records to support an appropriate motion. 

Accordingly, for these reasons, it is ORDERED:

1. Defendants’ Motion to Compel (Doc. 32) is DENIED.

2. Defendants’ Motion for Extension of Time (Doc. 33) is GRANTED. 

Defendants shall file their response to the Third Amended Complaint within thirty (30)

days of this date.

3. Plaintiff’s Motion For Entry of Default (Doc. 34) is DENIED.

DONE AND ORDERED this 9 day of March, 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 5:10-cv-00065-RS -GRJ