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

Case 1:05-cv-00037-SLR

Document 85

Filed 09/14/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Harry Samuel Plaintiff, v. THOMAS CARROLL, (WARDEN), LT. PORTER, COUNSELOR KRAMER, and the I.B.C.C. (CLASSIFICATION COMMITTEE), and DENTAL SERVICE, Defendants : : : : : : : : : : : : : :

C.A. No. 05-037-SLR

TRIAL BY JURY DEMANDED

MOTION OF CORRECTIONAL MEDICAL SERVICES, INC. (INCORRECTLY DESIGNATED AS "DENTAL SERVICE") 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 an allegation that plaintiff was denied dental care from

the beginning of 2005 until July 1, 2005 and then from July 1, 2005 to the beginning of September 2005 and that he injured his wrist, hand and shoulder while being handcuffed during dental treatment on November 7, 2004. 2. On March 22, 2006, CMS filed a Motion to Dismiss Plaintiff's Amended

Complaint alleging failure to state a claim upon which relief may be granted since plaintiff's complaints were timely and properly addressed by CMS. In addition, CMS did not become the healthcare provider at Delaware's prisons until July 1, 2005. 3. On or about August 25, 2006, CMS received plaintiff's discovery.

Case 1:05-cv-00037-SLR

Document 85

Filed 09/14/2006

Page 2 of 4

4.

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). 5. Plaintiff's discovery requests and any potential responses thereto by CMS are not

relevant to a determination of CMS' 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. 6. to Dismiss. 7. Accordingly, CMS requests this Honorable Court to order that CMS is not Plaintiff's discovery requests are premature given the pendency of CMS' Motion

obligated to respond to plaintiff's discovery until 30 days after a decision on CMS' Motion 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.

Case 1:05-cv-00037-SLR

Document 85

Filed 09/14/2006

Page 3 of 4

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Kevin J. Connors KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorney for Defendant, Correctional Medical Services, Inc.

DATED: September 14, 2006
\15_A\LIAB\ESTHOMPSON\LLPG\377047\ESTHOMPSON\13252\00162

Case 1:05-cv-00037-SLR

Document 85

Filed 09/14/2006

Page 4 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Harry Samuel Plaintiff, v. THOMAS CARROLL, (WARDEN), LT. PORTER, COUNSELOR KRAMER, and the I.B.C.C. (CLASSIFICATION COMMITTEE), and DENTAL SERVICE, Defendants : : : : : : : : : : : : : :

C.A. No. 05-037-SLR

TRIAL BY JURY DEMANDED

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 "DENTAL SERVICE") FOR A PROTECTIVE ORDER in the above-captioned matter this date by electronic service and/or by regular mail. Ophelia Michelle Waters Department of Justice State of Delaware 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801 Harry L. Samuel SBI # 201360 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: /s/ Kevin J. Connors KEVIN J. CONNORS, ESQ. DE Bar ID: 2135 1220 North Market Street, 5th Fl. P.O. Box 8888 Wilmington, DE 19899-8888 Attorney for Defendant, Correctional Medical Services, Inc.

DATED: September 14, 2006
\15_A\LIAB\ESTHOMPSON\LLPG\377047\ESTHOMPSON\13252\00162