Free Motion for Protective Order - District Court of Delaware - Delaware

Case 1:05-cv-00102-SLR-LPS

Document 104

Filed 01/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHAMSIDIN ALI, A/K/A ROBERT SAUNDERS, Plaintiff, v. DELAWARE DEPARTMENT OF CORRECTIONS, COMM. STANLEY TAYLOR, WARDEN RICK KEARNEY, WARDEN THOMAS CARROLL, DEPUTY WARDEN MIKE DELOY, S/LT. EARL MESSICK, S/LT. JOSEPH JOHNSON, CAPTAIN C. SEGARS, ANTHONY RENDINA, PAUL MORGAN and CORRECTIONAL MEDICAL SYSTEMS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No. 05-102-***

JURY TRIAL DEMANDED

MOTION OF CORRECTIONAL MEDICAL SERVICES, INC. (INCORRECTLY DESIGNATED AS "CORRECTIONAL MEDICAL SYSTEMS") FOR A PROTECTIVE ORDER Correctional Medical Services, Inc. (hereinafter "CMS"), by its undersigned counsel, hereby moves this Honorable Court to enter the attached Order, granting a Protective Order pursuant to Fed. R. Civ. P. 26 (c) in its favor and against plaintiff and, in support thereof, avers as follows: 1. The case at bar involves allegations that plaintiff was subjected to illegal

censoring of legal and personal mail, the Department of Corrections failed to make reasonable accommodations for his physical disabilities and denied him access to sick call and that he was denied access to medical care since approximately 2004. Plaintiff has filed a Complaint, D.I. #1, and a Supplemental and Second Amended Complaint, D.I. #19, in this matter. Plaintiff also mailed a Supplemental and Third Amended Complaint to Defendant, CMS, but did not file it with the Court.

Case 1:05-cv-00102-SLR-LPS

Document 104

Filed 01/05/2007

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2.

On June 14, 2006, CMS filed a Motion to Dismiss Plaintiff's Complaint alleging

failure to state a claim upon which relief may be granted since Plaintiff's healthcare complaints were timely and properly addressed by CMS and Plaintiff had failed to exhaust all administrative remedies. 3. On August 21, 2006, Plaintiff mailed a Supplemental and Third Amended

Complaint to Defendant, CMS; however, this was not filed with the Court. 4. On September 21, 2006, CMS filed a Motion to Dismiss Plaintiff's Supplemental

and Third Amended Complaint alleging failure to file it by August 28, 2006 pursuant to the Court's July 27, 2006 Memorandum Order. D.I. #76. 5. 6. On or about December 6, 2006, CMS received plaintiff's document request. A motion for a protective order may be made by a witness from whom discovery

is sought. Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). According to Fed. R. Civ. P. 26 (c), the Court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense....". Additionally, a court may grant a protective order prohibiting discovery when it believes the information sought is wholly irrelevant to the issues or to prospective relief. Leighr v. Beverly Enterprises-Kansas Inc., 164 F.R.D. 550, 551 (D. Kan. 1996). Protective orders are entered by the Court for "good cause" which is a determination that consists of balancing the harm to the person seeking the protective order versus the importance of disclosure to the public. Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997). 7. Plaintiff's discovery request and any potential responses thereto by CMS are not

relevant to a determination of CMS's Motion to Dismiss, which is directed to the averments in plaintiff's Complaint and whether plaintiff has failed to state a claim upon which relief can be granted. 8. to Dismiss. Plaintiff's discovery requests are premature given the pendency of CMS's Motions

Case 1:05-cv-00102-SLR-LPS

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9.

Accordingly, CMS requests this Honorable Court to order that CMS is not

obligated to respond to Plaintiff's discovery until 30 days after a decision on CMS's Motions to Dismiss is rendered. WHEREFORE, Correctional Medical Services, Inc. respectfully moves this Honorable Court to enter the attached Protective Order in favor of Correctional Medical Services, Inc.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Eric Scott Thompson KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 ERIC SCOTT THOMPSON, ESQUIRE DE Bar ID: 4633 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorneys for Defendant, Correctional Medical Services, Inc.

DATED: January 5, 2007
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Case 1:05-cv-00102-SLR-LPS

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Filed 01/05/2007

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CERTIFICATION OF SERVICE I hereby certify that I have served upon all persons listed below two true and correct copies of MOTION OF CORRECTIONAL MEDICAL SERVICES, INC. (INCORRECTLY DESIGNATED AS "CORRECTIONAL MEDICAL SYSTEMS") FOR A PROTECTIVE ORDER in the above-captioned matter this date by electronic service and/or by regular mail. Shamsidin Ali SBI No. 052590 DCC 1181 Paddock Road Smyrna, DE 19977 Eileen Kelly, Esquire Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Eric Scott Thompson KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 ERIC SCOTT THOMPSON, ESQUIRE DE Bar ID: 4633 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorneys for Defendant, Correctional Medical Services, Inc.

DATED: January 5, 2007
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