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Dye v. Klemz

United States District Court, W.D. Wisconsin

May 25, 2016

JOHN L. DYE, JR., Plaintiff,



         Plaintiff John Dye, a prisoner currently incarcerated at the Waupun Correctional Institution, brings claims under the Eighth Amendment and the Rehabilitation Act that officials at the Wisconsin Resource Center forced him to use a short-handled or “fingertip” toothbrush despite his suffering from a “chronic mallet deformed right thumb” and arthritis in both hands.

         In a March 4, 2016 order, I addressed the parties’ dispute over the scope of medical records plaintiff will have to allow defendants to access to litigate this case. Plaintiff objects to a modified authorization form produced by defendants, and defendants have moved to dismiss the case based on plaintiff’s failure to sign the authorization form. Plaintiff also requests the court’s assistance in recruiting counsel, and objects to the substitution of the new Department of Corrections (DOC) secretary as a defendant. Defendants have filed a motion to modify the current schedule given the delay in obtaining plaintiff’s authorization.

         A. Medical authorization form

         As I have previously stated, plaintiff will not be able to continue with this case unless he gives defendants access to relevant medical records so that they may defend against his claims. In a March 4, 2016 order, I provided guidance on the scope of the authorization, including a reasonable time span-records from 2004 to present-and a limitation to only relevant categories of documents, i.e., only records related to plaintiff’s physical, not mental, condition. Defendants made those modifications and gave plaintiff a new proposed authorization form. Plaintiff continues to argue that the scope of defendants’ proposed authorization form is too broad, raising several objections.

         1. Social services file

         The current version of defendants’ proposed authorization form allows for discovery of plaintiff’s social services file from the Wisconsin Department of Corrections (DOC). Plaintiff argues that this file may contain “[c]ounseling, psychological, and/or psychiatric records, ” records that I deemed irrelevant in my previous order, and he requests that the clause allowing disclosure of this file be removed.

         I conclude that this language need not be removed for two reasons. First, as defendants point out, the social services file may contain information relating to plaintiff’s physical condition, for example, work restrictions he may have been under due to his ailment. That information would be relevant to this case, and defendants are thus entitled to it. Second, defendants are already barred from receiving any records relating to plaintiff’s mental condition from his social services file, or any other file, under both my previous order and the agreed upon terms of the form-the first paragraph of the section under which this clause falls limits disclosure exclusively to those records “that relate to [plaintiff’s] physical condition.”

         2. Time limit

         Plaintiff also requests removal of a clause that states that he would be consenting to disclosure of records for any medical care he received from “before the date of this authorization” until the authorization expires. Plaintiff believes this implies that defendants could discover records reaching back before 2004, the limit I previously imposed.

         There is no reason to strike this language either. The authorization form contains another limitation: it authorizes disclosure of plaintiff’s medical records only from “2004 to the present.” The clause plaintiff to which plaintiff objects does not alter this limitation.

         3. Notices regarding redisclosure

         Plaintiff appears to object to two notices contained in the authorization form. Plaintiff marked language in the first notice for omission, but he does not develop an argument in his brief explaining why this language should be omitted. The notice explains to the authorizer that if protected health information is disclosed to individuals who are not covered by federal health privacy laws, that information may lose its protected status, “and those persons may be permitted to re-disclose the information without my prior approval.”

         Plaintiff’s failure to make an argument for the clause’s omission is sufficient to deny his request for its removal. But even assuming that his objection to the language is that he perceives it as giving defendants extra permission to redisclose his protected health information, I conclude that objection is unwarranted. The language merely informs plaintiff of the consequences of his health care information being used in the case. It is possible that someone involved in this litigation who is not covered by federal health privacy laws will obtain the records plaintiff discloses. Given ...

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