1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 TYRONE T.H. NALL, Case No. 3:19-cv-00054-MMD-CLB 5 Plaintiff, ORDER 6 v.
7 KIM ADAMSON, et. al.,
8 Defendants.
10 This case involves a civil rights action filed by Plaintiff Tyrone T.H. Nall (“Nall”), 11 involving the treatment provided to Nall for fibromyalgia and peripheral neuropathy while 12 he was in the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 13 10). Nall moved to compel Defendant Michael Minev (“Minev”) to provide documents he 14 requested during discovery in this case, specifically his own medical records. (ECF No. 15 38).1 Minev filed a response claiming the motion should be denied as moot because he 16 has since provided the requested documents to Nall. (ECF No. 39). In reply, it appears 17 that Nall admits that Minev provided the requested documents for his review with the 18 Warden’s office. (ECF No. 40 at 1-2). However, citing to an unpublished order issued by 19 another judge in this district, Nall claims that Minev was required to provide him with a 20 copy of his medical records that he could maintain in his cell. (ECF No. 40). 21 /// 22 /// 23
24 1 Nall also filed a second motion entitled, “Motion for Submission of Decision of 25 Motion to Compel.” (ECF No. 42). Such a filing is improper and is denied. Nall is advised that the court decides motions one at a time, as they are received from litigants. At any 26 given time, the court has hundreds of motions pending before it and thus it takes time to get to each motion. Filing additional motions attempting to speed up the court’s decision 27 on another motion, or highlight the filing of a motion, slows down the process and bogs down the court’s docket. Accordingly, the motion for submission (ECF No. 42) is denied 28 1 I. FACTUAL AND PROCEDURAL HISTORY 2 The facts and history related to the present discovery dispute are as follows. On 3 November 9, 2020, Nall mailed Minev a set of requests for production of documents. 4 (ECF No. 39 at 2). Minev was required to respond to the request by no later than 5 Wednesday, December 15, 2020. See Fed. R. Civ. P. 34(b)(2)(A) (response due within 6 30 days); Fed. R. Civ. P. (a), (d) (calculation of time including adding 3 days for mailing 7 and when period ends of Saturday proceed to next court day). 8 On December 11, 2020, Defendant filed a motion seeking an extension of time to 9 respond to Nall’s request. (ECF No. 24). The court granted the extension and set the 10 new deadline for December 22, 2020. (ECF No. 24). Defendant, by his own admission, 11 did not comply with this deadline.2 Rather, 26 days later, on January 14, 2021, Minev 12 provided some of the documents responsive to his requests. (ECF No. 39 at 2). On this 13 date, Minev asserts he provided “335 pages to Nall, with an admonition that Nall would 14 be required to kite to see the documents.” (Id.) Presumably, these records were Nall’s 15 medical records Minev did not provide directly to Nall. 16 On January 19, 2021, Nall sent Minev a letter requesting a “meet and confer” 17 related to the issues surrounding these discovery issues. (ECF No. 38 at 12-13.) There 18 is no evidence Minev responded to this letter. On January 26, 2021, Nall sent Minev a 19 second meet and confer letter regarding these issues. (ECF No. 38 at 16-17). Again, 20 Minev did not respond. Thereafter, Nall filed the current motion to compel. (ECF No. 38). 21 Minev did two things in response to Nall’s Motion. First, he sent Nall another 98 22 pages of medical records. (ECF No. 39 at 2). Next, Minev filed his response claiming the 23 motion to compel should be denied because “Nall has received all documents he 24 25 2 Defendant’s counsel claims that he suffered a serious illness on December 17, 26 2021 which he stated made “it very difficult to work.” (ECF No. 39 at 2). While the court is sympathetic to Defense Counsel medical issues, he works for the Nevada Attorney 27 General’s Office and is not a solo practitioner. There is no explanation in the response why another attorney was not asked to assist with this deadline or why another 28 1 requested.” (Id.) Minev did not assert or argue that the requests were improper or 2 irrelevant. Rather, he simply claimed the motion should be denied because he allegedly 3 complied. Of note, Minev also did not address or respond, in any way, to Nall’s argument 4 that Minev’s production was insufficient because he simply made the records available 5 for Nall’s review at the Warden’s Office. 6 In reply, Nall acknowledges Minev provided the records he requested in 7 discovery. (ECF No. 40 at 1-2). However, he reiterates that the production was 8 insufficient because he was not given a copy of the records. Rather, he claims Minev 9 was required to provide him a physical copy of the records. In support of this argument, 10 he cites to an order issued by Judge Cobb in Ruiz v. NDOC, Case No. 3:17-cv-00643- 11 RCJ-WGC, ECF No. 40. 12 Thus, contrary to Minev’s Response, this motion is not entirely moot. Although 13 Minev may have made the records available for Nall’s review, Minev did not respond to 14 the Nall’s argument that he should be provided a copy of these records that he could 15 maintain in his cell. 16 II. ANALYSIS 17 The Federal Rules of Civil Procedure permit a party to “move for an order 18 compelling an answer, designation, production, or inspection,” if: (iv) a party fails to 19 produce documents . . . requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(A)-(B). 20 Federal Rule of Civil Procedure 26(b)(l) provides that, “[p]arties may obtain discovery 21 regarding any nonprivileged matter that is relevant to any party's claim or defense and 22 proportional to the needs of the case[.]” Fed. R. Civ. P 26(b)(1). The rule identifies six 23 factors regarding proportionality: (1) the importance of the issues at stake in the action; 24 (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) 25 the parties' resources; (5) the importance of the discovery in resolving the issues; and 26 (6) and whether the burden and expense of the proposed discovery outweighs its likely 27 benefit. Fed. R. Civ. P 26(b)(1). The party opposing discovery has the burden of showing 28 that the discovery requested is irrelevant, over broad, or unduly burdensome. Fosbre v. 1 Las Vegas Sands Corp., 2016 U.S. Dist. LEXIS 1073, 2016 WL 54202, at 4 (D. Nev. 2 Jan. 5, 2016). 3 Here, Minev does not dispute that the evidence requested in discovery was 4 relevant and is proportional to the needs of the case. In fact, Minev asserts that he 5 provided the requested discovery to Nall by making the documents available for Nall’s 6 inspection at the Warden’s Office. Thus, on this basis alone, Minev claims the motion 7 should be denied as moot. 8 However, Nall claims that Minev has not sufficiently complied with his discovery 9 obligations because he did not provide him a copy of the records directly. Nall cites to 10 an order entered by Magistrate Judge Cobb in another case which granted a request by 11 an inmate to receive a copy of his medical records in litigation that related to the 12 inmate’s medical treatment at the expense of the NDOC. 13 Pursuant to Local Rule 7-2, “the failure of an opposing party to file points and 14 authorities in response to any motion . . . constitutes a consent to granting the motion.” 15 Here, Minev failed to oppose Nall’s motion to the extent he specifically requested to 16 personally receive a copy of his medical records.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 TYRONE T.H. NALL, Case No. 3:19-cv-00054-MMD-CLB 5 Plaintiff, ORDER 6 v.
7 KIM ADAMSON, et. al.,
8 Defendants.
10 This case involves a civil rights action filed by Plaintiff Tyrone T.H. Nall (“Nall”), 11 involving the treatment provided to Nall for fibromyalgia and peripheral neuropathy while 12 he was in the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 13 10). Nall moved to compel Defendant Michael Minev (“Minev”) to provide documents he 14 requested during discovery in this case, specifically his own medical records. (ECF No. 15 38).1 Minev filed a response claiming the motion should be denied as moot because he 16 has since provided the requested documents to Nall. (ECF No. 39). In reply, it appears 17 that Nall admits that Minev provided the requested documents for his review with the 18 Warden’s office. (ECF No. 40 at 1-2). However, citing to an unpublished order issued by 19 another judge in this district, Nall claims that Minev was required to provide him with a 20 copy of his medical records that he could maintain in his cell. (ECF No. 40). 21 /// 22 /// 23
24 1 Nall also filed a second motion entitled, “Motion for Submission of Decision of 25 Motion to Compel.” (ECF No. 42). Such a filing is improper and is denied. Nall is advised that the court decides motions one at a time, as they are received from litigants. At any 26 given time, the court has hundreds of motions pending before it and thus it takes time to get to each motion. Filing additional motions attempting to speed up the court’s decision 27 on another motion, or highlight the filing of a motion, slows down the process and bogs down the court’s docket. Accordingly, the motion for submission (ECF No. 42) is denied 28 1 I. FACTUAL AND PROCEDURAL HISTORY 2 The facts and history related to the present discovery dispute are as follows. On 3 November 9, 2020, Nall mailed Minev a set of requests for production of documents. 4 (ECF No. 39 at 2). Minev was required to respond to the request by no later than 5 Wednesday, December 15, 2020. See Fed. R. Civ. P. 34(b)(2)(A) (response due within 6 30 days); Fed. R. Civ. P. (a), (d) (calculation of time including adding 3 days for mailing 7 and when period ends of Saturday proceed to next court day). 8 On December 11, 2020, Defendant filed a motion seeking an extension of time to 9 respond to Nall’s request. (ECF No. 24). The court granted the extension and set the 10 new deadline for December 22, 2020. (ECF No. 24). Defendant, by his own admission, 11 did not comply with this deadline.2 Rather, 26 days later, on January 14, 2021, Minev 12 provided some of the documents responsive to his requests. (ECF No. 39 at 2). On this 13 date, Minev asserts he provided “335 pages to Nall, with an admonition that Nall would 14 be required to kite to see the documents.” (Id.) Presumably, these records were Nall’s 15 medical records Minev did not provide directly to Nall. 16 On January 19, 2021, Nall sent Minev a letter requesting a “meet and confer” 17 related to the issues surrounding these discovery issues. (ECF No. 38 at 12-13.) There 18 is no evidence Minev responded to this letter. On January 26, 2021, Nall sent Minev a 19 second meet and confer letter regarding these issues. (ECF No. 38 at 16-17). Again, 20 Minev did not respond. Thereafter, Nall filed the current motion to compel. (ECF No. 38). 21 Minev did two things in response to Nall’s Motion. First, he sent Nall another 98 22 pages of medical records. (ECF No. 39 at 2). Next, Minev filed his response claiming the 23 motion to compel should be denied because “Nall has received all documents he 24 25 2 Defendant’s counsel claims that he suffered a serious illness on December 17, 26 2021 which he stated made “it very difficult to work.” (ECF No. 39 at 2). While the court is sympathetic to Defense Counsel medical issues, he works for the Nevada Attorney 27 General’s Office and is not a solo practitioner. There is no explanation in the response why another attorney was not asked to assist with this deadline or why another 28 1 requested.” (Id.) Minev did not assert or argue that the requests were improper or 2 irrelevant. Rather, he simply claimed the motion should be denied because he allegedly 3 complied. Of note, Minev also did not address or respond, in any way, to Nall’s argument 4 that Minev’s production was insufficient because he simply made the records available 5 for Nall’s review at the Warden’s Office. 6 In reply, Nall acknowledges Minev provided the records he requested in 7 discovery. (ECF No. 40 at 1-2). However, he reiterates that the production was 8 insufficient because he was not given a copy of the records. Rather, he claims Minev 9 was required to provide him a physical copy of the records. In support of this argument, 10 he cites to an order issued by Judge Cobb in Ruiz v. NDOC, Case No. 3:17-cv-00643- 11 RCJ-WGC, ECF No. 40. 12 Thus, contrary to Minev’s Response, this motion is not entirely moot. Although 13 Minev may have made the records available for Nall’s review, Minev did not respond to 14 the Nall’s argument that he should be provided a copy of these records that he could 15 maintain in his cell. 16 II. ANALYSIS 17 The Federal Rules of Civil Procedure permit a party to “move for an order 18 compelling an answer, designation, production, or inspection,” if: (iv) a party fails to 19 produce documents . . . requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(A)-(B). 20 Federal Rule of Civil Procedure 26(b)(l) provides that, “[p]arties may obtain discovery 21 regarding any nonprivileged matter that is relevant to any party's claim or defense and 22 proportional to the needs of the case[.]” Fed. R. Civ. P 26(b)(1). The rule identifies six 23 factors regarding proportionality: (1) the importance of the issues at stake in the action; 24 (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) 25 the parties' resources; (5) the importance of the discovery in resolving the issues; and 26 (6) and whether the burden and expense of the proposed discovery outweighs its likely 27 benefit. Fed. R. Civ. P 26(b)(1). The party opposing discovery has the burden of showing 28 that the discovery requested is irrelevant, over broad, or unduly burdensome. Fosbre v. 1 Las Vegas Sands Corp., 2016 U.S. Dist. LEXIS 1073, 2016 WL 54202, at 4 (D. Nev. 2 Jan. 5, 2016). 3 Here, Minev does not dispute that the evidence requested in discovery was 4 relevant and is proportional to the needs of the case. In fact, Minev asserts that he 5 provided the requested discovery to Nall by making the documents available for Nall’s 6 inspection at the Warden’s Office. Thus, on this basis alone, Minev claims the motion 7 should be denied as moot. 8 However, Nall claims that Minev has not sufficiently complied with his discovery 9 obligations because he did not provide him a copy of the records directly. Nall cites to 10 an order entered by Magistrate Judge Cobb in another case which granted a request by 11 an inmate to receive a copy of his medical records in litigation that related to the 12 inmate’s medical treatment at the expense of the NDOC. 13 Pursuant to Local Rule 7-2, “the failure of an opposing party to file points and 14 authorities in response to any motion . . . constitutes a consent to granting the motion.” 15 Here, Minev failed to oppose Nall’s motion to the extent he specifically requested to 16 personally receive a copy of his medical records. On this basis alone, the court could 17 grant Nall’s motion in its entirety. 18 However, despite Minev’s failure to responds to this argument, the court has 19 reviewed and considered the merits of Nall’s argument, including reviewing and 20 analyzing the order cited by Nall in Ruiz v. NDOC, Case No. 3:17-cv-00643-RCJ-WGC 21 at ECF Number 40, which was issued by Judge Cobb. Although this order is not binding 22 on the court, after thorough consideration and independent research and analysis, the 23 court finds Judge Cobb’s analysis both persuasive and appropriate with respect to AR 24 639.08. 25 Therefore, the court adopts the analysis, reasoning, and conclusions in Judge 26 Cobb’s order related specifically to AR 639.08. Specifically, this court finds that the plain 27 meaning of AR 639.02(8) grants inmates engaged in litigation directly involving medical 28 records to possess relevant copies of the records. In addition, the court also finds that 1 those medical records must be provided to the inmate at the NDOC’s expense. As such, 2 the court grants Nall’s motion to compel. (ECF No. 38). Within fourteen (14) days of the 3 issuance of this order, Minev is ordered and directed to provide copies of Nall’s medical 4 records directly to him at the NDOC’s expense. 5 III. CONCLUSION 6 IT IS THEREFORE ORDERED that Nall’s Motion to Compel (ECF No. 38) is 7 granted. 8 IT IS FURTHER ORDERED that within fourteen (14) days of the issuance of this 9 order, Minev is ordered and directed to provide copies of Nall’s medical records directly 10 to him at the NDOC’s expense. 11 IT IS FURTHER ORDERED that Nall’s Motion for Submission of Decision of 12 Motion to Compel (ECF No. 38) is denied as moot. 13 14 DATED: April 6, 2021 15 16 ______________________________________ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28