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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-65-RS-GRJ

J T WITALEC, et al.,

Defendants.

_____________________________/

O R D E R

This case is before the Court on Doc. 36, Defendants’ motion for reconsideration

of the Court’s order (Doc. 35) denying Defendants’ motion to compel the Plaintiff to

execute a HIPAA medical release, or in the alternative to dismiss this case. The 1

motion to compel alleged that Defendants did not have access to Plaintiff’s medical

records and that Defendants could not respond to Plaintiff’s Eighth Amendment

excessive-force claim without such records. The Court denied the motion to compel

because: (1) Defendants cited no authority for the proposition that the Court could

compel Plaintiff to execute a release; (2) discovery has not yet commenced in this case,

and even if it had Fed. R. Civ. P. 34 does not obligate Plaintiff to execute a medical

release; and (3) when discovery commences Defendants can avail themselves of the

HIPAA procedures for disclosure of medical records without a release. The Court

observed that Plaintiff’s medical records are not essential to the formulation of a

response to the Third Amended Complaint. Doc. 35. 

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

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In the instant motion, Defendants ask the Court to reconsider requiring Plaintiff to

sign a medical release prior to the commencement of discovery, or alternatively to

compel Plaintiff to sign a release once discovery commences. As support for the

motion, Defendants contend that (1) medical releases are essential to the litigation of

pro se prisoner medical claims and should be required in such cases even if not

required in other types of cases; (2) several courts in the Northern and Middle Districts

of Florida have required prisoners to execute medical releases prior to commencement

of discovery, and have dismissed cases for failure to execute a release; (3) obtaining a

prisoner’s medical records under the HIPAA procedures would be inefficient, costly, and

burdensome; (4) obtaining medical records expeditiously is critical to early disposition of

prisoner cases, particularly in determining whether a prisoner’s damages claim is barred

by the physical injury requirement of 42 U.S.C § 1997e; and (5) prisoners have “control”

of their medical records within the meaning of Rule 34 and therefore should be

compelled to sign releases. Defendants also candidly acknowledge that “in this

particular case, an answer may be filed without Plaintiff’s medical records, as the bulk

of Plaintiff’s complaint does not refer to his medical condition and the portions thereof

that do will simply be answered without knowledge.” Defendants assert that this case is

“definitely the exception” in that regard. Doc. 36.

The Court is not persuaded that reconsideration of the order denying the motion

to compel is warranted, especially in view of Defendants’ acknowledgment that they are

able to prepare a response to the Third Amended Complaint without such medical

records. The Court will, however, briefly address the concerns raised by Defendants in

the instant motion.

Case No: 5:10-cv-00065-RS -GRJ
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As stated in the previous order, the Court recognizes that when a plaintiff places

his medical condition at issue, his pertinent medical records will be relevant and

discoverable by Defendants. That is true regardless whether the plaintiff is a prison

inmate, and the Court is not convinced that pre-discovery review of a plaintiff’s medical

records is “essential” simply because the plaintiff is incarcerated. While other courts 2

have adopted the practice of ordering prisoner plaintiffs to sign medical releases or face

dismissal even at the pre-discovery stage, the orders from other magistrate judges in

this district and from several magistrate judges in the Middle District of Florida

submitted by Defendants as examples, do not discuss or cite any authority for doing so. 

The Court remains convinced that the applicable rules do not provide such authority. 

See, e.g., Fields v. West Virginia State Police, 264 F.R.D. 260, 263 (S.D. W.Va. 2010)

(finding no authority under the Federal Rules or elsewhere that empowers a court to

require a party who has placed their physical or mental health at issue to execute a

HIPAA-compliant medical release).

In Fields, the court declined to grant a similar motion to compel, but observed

that “[t]he vast majority of plaintiffs sign very broad medical authorizations . . . [a]

plaintiff’s refusal to sign releases results in increased expense and considerable delay,

leading the court to wonder why a plaintiff would choose this strategy. . . . Refusal to

sign releases does not eliminate the opposing party’s right to discover the records

Insofar as a plaintiff’s medical records might be useful in facilitating a defendant’s recall of the

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plaintiff and the events giving rise to the claim, in the prison setting the defendants are not formulating a

response in a vacuum. If the plaintiff has complied with the requirement to exhaust administrative

remedies, then the preparation of a response will be informed by the administrative record developed by

the prison.

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pertaining to the conditions.” Fields, 264 F.R.D. at 264. The court noted that the

relevant medical records could be obtained through the HIPAA procedures. The court

suggested that the best approach is for parties to confer regarding the scope of

proposed releases and to use a HIPAA-compliant protective order to restrict use and

disclosure of a party’s medical information. Id.

In this case, Defendants have represented to the Court that they presented

Plaintiff with a HIPAA-compliant release, but Defendants did not attach a copy of the

proposed release to the motion to compel. See Doc. 32. Defendants attached a copy

of a letter to Plaintiff asking him to sign a release, and a copy of a “Refusal of Health

Care Services” form on which “refused to sign” is noted. The “Refusal of Health Care

Services” form makes no reference whatsoever to medical records. Id. at 32, Exh. A,

B. In his response to Defendants’ motion for reconsideration, Plaintiff states that

Defendants did not send him a HIPAA release form and that he did not refuse to sign a

medical release form. Doc. 37. Defendants’ exhibits seem to support that assertion,

and thus the Court cannot say that Defendants efforts to obtain a release in this case

furthered the goals of expedient and efficient resolution of Plaintiff’s claims.

A lawsuit filed by a pro se prisoner does not present the opportunity for

conference and agreement suggested by Fields. If Defendants’ wish to obtain a

prisoner’s medical records by consent, their efforts might be more successful if they

take steps to assure that the prisoner understands the scope of the release and that his

medical information will be managed and disclosed in accordance with HIPAA. For

cases in which a prisoner’s medical records will be required, the Court suggests that

Defendants present to the Court an appropriately-tailored qualified protective order that

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complies with the HIPAA regulations governing the disclosure of protected health

information in the course of a judicial or administrative proceeding. See 45 C.F.R.

§ 164.512(e)(1)(v). The protective order could be presented to the prisoner with a 3

request for a release, or -- failing the execution of a release – could be presented in

conjunction with a third-party request for the medical records in satisfaction of the

requirements of HIPAA. The Court would entertain the issuance of such a protective

order at an early stage of the litigation, upon a proper showing of necessity.

Plaintiff is reminded that, having placed his medical condition in issue in this

lawsuit, the Defendants will be entitled review the relevant medical records. Plaintiff’s

failure to comply with the Federal Rules of Civil Procedure or with the Court’s orders will

result in the imposition of sanctions, which could include dismissal of this case.

Accordingly, for the foregoing reasons, it is ORDERED:

That Defendants’ Motion for Reconsideration (Doc. 36) is DENIED.

DONE AND ORDERED this 7 day of April 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

“[Q]ualified protective order means, with respect to protected health information requested under

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paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the

parties to the litigation or administrative proceeding that:

(A) Prohibits the parties from using or disclosing the protected health information for any purpose other

than the litigation or proceeding for which such information was requested; and

(B) Requires the return to the covered entity or destruction of the protected health information (including

all copies made) at the end of the litigation or proceeding.”

45 CFR § 164.512.

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