Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 order. Pending before the Court is Plaintiff's appeal from M agistrate's M arch 28, 2005 D oc. #51. Defendants have filed a response and Plaintiff has filed a reply. ) ) Plaintiff, ) ) ) vs. ) ) Donald Sloan; Ronolfo M acabuhay; and) ) Richard Pratt, ) Defendants, ) ) ) Danny M iller, No. CV-04-19-PHX-DGC (LOA) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Docs. ##54, 56. For the reasons set forth below, the Court will deny the appeal. Plaintiff filed a motion to compel Defendants to disclose requested medical records on M arch 10, 2005. Doc. #38. P laint iff sought to compel Defendants to disclose orders for a "no spice diet" and a pain medication pres crip t ion (dicyclomine) that Defendant M acabuhay claims to have written between June 2002 and July 2003. Id. at 2-3. Plaintiff argued that Defendants should be prohibited from referencing these medical records in any defense or claim if the records were not disclosed. Id. at 3-4 (citing Fed. R. Civ. P. 37). Defendants stated in their response to t he mot ion that the prison medical staff has s earched for the requested records, but have been unable to locate them. Doc. #43 at 2-3. Defendants further stated that Plaintiff has been p rovided with all available documents

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responsive t o his discovery requests and that defense counsel informed Plaintiff that the missing records would be produced if they are located. Id. Relying in part on

s up p lemental interrogatory answers by Defendant M acabuhay regarding the missing records, Defendants argued that Plaintiff's request for sanctions under Rule 37 should be denied. Id. at 3. United States M agistrat e J udge Lawrence Anderson reviewed the motion and response and denied the motion because Defendants had advised the Court that P laint iff has been provided with copies of all of his requested medical records that exist. D oc. #45 at 1-2. Plaintiff objects to this ruling in part because the M agistrate Judge issued his order before Plaintiff had a chance to file a reply. Doc. #51 at 5 (citing LRCiv 7.2(d)). Plaintiff als o argues that while interrogatory answers are generally a reasonable substitute for actual documents, the reques t ed records in this case must be produced because they are relevant to a genuinely disputed material fact. Id. at 4. The Court finds that the M agistrat e J udge's order was not clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A). Defendants cannot produce records t hat do not exist or cannot be found through reasonable searches. Plaintiff has presented no

evidence that the records were intentionally or reckles s ly destroyed or that Defendants have otherwise engaged in discovery abuses justifying sanctions under Rule 37. The

Court has review ed Plaintiff's reply to his motion to compel and finds that it does not render the M agistrate Judge's order erroneous. See Doc. #46. IT IS ORDERED that Plaintiff's appeal from M agistrate's M arch 28, 2005 order (Doc. #51) is denied. DATED this 15th day of August, 2005.

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