UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Michael D. Rix

v. Civil No. 05-cv-354-JD

Warren Dowaliby, Superintendent,

Strafford County House of

Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court for consideration is Michael Rix’s

Emergency Motion for Contempt/Motion for the Extension of Time

(“The Contempt Motion”) (document no. 13), objections to that

motion filed by PrimeCare Medical (“PCM”) (document nos. 15, 25 &

26) and the Strafford County Department of Corrections (“SCDC”)

(document nos. 21 & 23), and Rix’s response to PCM’s objection

(document no. 20). Also before the Court is SCDC’s motion for a

protective Order (document no. 24). For the reasons stated

herein, I recommend that the Court deny the motion for contempt

and give Rix leave to amend his complaint at this time. I

further recommend that the motion for a protective order be

granted.

Case 1:05-cv-00354-JD Document 27 Filed 04/24/06 Page 1 of 8
1Rix’s initial complaint (document no. 1) and amended

complaint (document no. 5) were accepted, in the aggregate, as

the complaint in this matter.

2

Background 

Rix, a diabetic, alleges that during his 2005 incarceration

at the Strafford County House of Corrections (“SCHC”), the SCHC

medical providers failed to provide him with adequate medical

care by denying him an appropriate diet, incorrectly

administering his insulin, failing to provide adequate toenail

care, and failing to provide adequate post-surgical care. See

Document nos. 1 & 5.1 Rix also complains about due process

violations in the SCHC disciplinary system.

On February 21, 2006, this Court issued a Report and

Recommendation (document no. 7) recommending the dismissal of the

due process claims and all of the named SCHC defendants from this

action. The District Judge approved that Report and

Recommendation over Rix’s objection on February 28, 2006

(document no. 10). This Court also issued an Order on February

21, 2006 (document no. 8) stating that Rix had stated a claim

upon which relief might be granted for violations of his Eighth

and Fourteenth Amendment right to receive adequate medical care

at the SCHC. Rix was directed to amend his complaint, however,

Case 1:05-cv-00354-JD Document 27 Filed 04/24/06 Page 2 of 8
2My order did not limit Rix to naming only members of the

SCHC medical department as defendants to this action. To the

extent that any SCDC employee is responsible for Rix not

receiving adequate medical care, they too may be named as

defendants to this action.

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as it failed to name any particular defendant responsible for the

inadequate medical care alleged. In my February 21st Order, I

advised that “[i]f Rix is not in possession of the names of the

medical personnel at the SCHC, he is entitled to receive a copy

of his medical records, which should contain the names of the

medical personnel at the SCHC responsible for his care and

treatment.” I directed Rix to file an amended complaint within

thirty days to properly name a defendant or defendants to his

medical care claims, citing with specificity what each defendant

did to deny Rix his constitutional rights.2

On March 9, 2006, Rix filed an Emergency Motion to Enforce

Orders/Motion for the Production of Documents (document no. 12)

alleging that the SCHC had denied him access to his medical

records. Rix alleged in that Motion that he was seeking only

“specific logs, notations, appointments, treatments and orders

with the personnel involved in those specific incidents charged .

. . in the complaint.” Rix sought an Order to the SCHC “to

produce all documents requested by the Plaintiff and a prior

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3Nothing in this Report and Recommendation should be

construed as commenting on what, if any, discovery obligations

may accrue to parties to this action after service of the

complaint. 

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viewing to ensure the complete discloser (sic) of the requested

document(s) that relate to this complaint only, and . . . order

that the Defendant(s) surrender all log entries, incident

reports, notes, orders, treatment(s) and all other security and

medical information that may have a bearing on this matter and

the conduct of the Defendant(s) from 6/12/04 to 11/30/05.” Rix’s

motion was granted on March 9, 2006.

On March 17, 2006, Rix filed his Contempt Motion. Rix

argues that “after several contacts with the Defendant(s)” he had

not been provided with any of his medical records. The Contempt

Motion makes clear that Rix believes that the information he

seeks, specifically, any and all documentation in the possession

of PCM or the SCDC that in any way relates to the allegations in

his complaint, is owed to him by virtue of his right to discovery

in a civil action. At this time, however, Rix’s complaint has

not been served on any defendant, and no potential defendant yet

has any discovery obligation to meet in this matter.3 This Court

simply ordered that Rix be provided with a copy of his own

medical records so that he could identify an appropriate

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defendant or defendants upon which his medical care claims could

be served. 

As outlined in a four page letter sent from PCM’s counsel to

Rix, and attached to PCM’s amended objection to the Contempt

Motion (document no. 26), PCM has provided Rix with a complete

copy of his medical records at the SCHC and the Rockingham County

House of Corrections. Further, PCM has agreed to search for and

provide any of Rix’s medical records that might exist at its

corporate headquarters. Counsel for PCM has offered to work with

Rix to complete records that Rix identified as incomplete, to

assist Rix in identifying medical personnel by handwriting,

signature, initials, or physical appearance. Further, PCM’s

counsel has provided Rix with the names of the physician working

for PCM at the SCHC from 2004 to the present, Dr. Benjamin

Heiderscheidt, the physician’s assistant working for PCM at the

SCHC from 2004 to the present, Christopher Schwieger, the nurse

who allegedly injected Rix with improper insulin, Sharon Hey, and

Hey’s supervisor, Karen Gallagher. Counsel for PCM also

indicated his willingness to continue to work with Rix to assure

that Rix receive the medical records he needs to identify the

medical personnel responsible for his care at the SCHC. PCM

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objects to a finding of contempt on the basis that they have

promptly supplied Rix with all of the documents he has requested

to the best of their ability. PCM also assents to Rix having an 

extension of time in which to file an amended complaint, but

requests that the extension be limited to thirty days.

The SCDC has also filed an objection to the Contempt Motion

(document no. 23). The SCDC argues that they are not currently

defendants to this action, that Rix’s request is overbroad for

the purpose of identifying potential defendants in the case, that

the request is vague, and that fulfilling the request would be

unduly burdensome as it would require a huge expenditure of

financial and personnel resources to search for, identify, and

produce the documents sought by Rix. 

I find that the pleadings filed in objection to the Contempt

Motion, and attachments thereto, demonstrate that Rix has been

provided with more than sufficient information to be able to name

defendants to his claims alleging a denial of adequate medical

care. Contempt is only an appropriate remedy when a party has

violated a court order. In this instance, the Court ordered only

that Rix be provided with medical records in order that he be

able to divine an appropriate defendant or defendants to his

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action. Because PCM and the SCDC have complied with that Order,

I recommend that the motion for contempt be denied.

The SCDC has requested that this Court issue a protective

order (document no. 24) “determining that items other than the

medical records of Plaintiff, including but not limited to the

log entries, are not required to be searched or produced at this

time.” Because I find that this Court’s Order for production of

medical records has been complied with, I recommend that the

Court grant the motion for a protective order. Any additional

information sought by Rix to support or prove his claims against

any defendants served may be pursued through the formal discovery

process.

Finally, I recommend that the Court grant Rix 30 days to

file an amended complaint. If the District Judge approves this

Report and Recommendation, Rix must file an amended complaint

naming an appropriate defendant or defendants to this action

within thirty days of the date of the Court’s approval.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

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Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 24, 2006

cc: Michael D. Rix, pro se

Kenneth C. Bartholomew, Esq.

Corey M. Belobrow, Esq.

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