Banuelos v. Acadia Healthcare Company, Inc. et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DEBORAH GRAY, as Next Friend of 	)
REBECAH BANUELOS, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. 19-CV-338-JFH
)
ACADIA HEALTHCARE COMPANY, INC., 	)
ROLLING HILLS HOSPITAL, LLC, 	)
)
Defendants. 	)
O R D E R
This 	matter 	comes 	before 	the 	Court 	on 	Plaintiffs’ 	Motion 	to
Compel 	Discovery 	(Docket 	Entry 	#93). 	This 	Motion 	was 	referred 	to
the 	undersigned 	for 	disposition 	by 	United 	States 	District 	Judge
John F. Heil, III, by Minute Order entered July 9, 2020.
Plaintiff 	Deborah 	Gray 	commenced 	this 	action 	on 	March 	20,
2019, 	in 	the 	First 	Judicial 	District 	Court 	of 	Rio 	Arriba 	County,
New Mexico, on behalf of her daughter Rebecah Banuelos. On May 2,
2019, Defendants Acadia Health Care Company, Inc. (“Acadia”), and
Rolling Hills Hospital, LLC (“Rolling Hills”) jointly removed the
action to the United States District Court for the District of New
Mexico pursuant to 28 U.S.C. § 1332. Defendant Rolling Hills filed
a Motion to Dismiss or, in the Alternative Motion to Transfer Venue
on 	May 	9, 	2019. 	The 	Alternative 	Motion 	was 	granted 	on 	October 	1,
2019, 	and 	the 	case 	was 	transferred 	to 	the 	United 	States 	District
Court for the Eastern District of Oklahoma on October 7, 2019.
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Pertinent 	to 	the 	Motion, 	Plaintiff 	filed 	a 	Second 	Amended
Complaint on March 18, 2020, wherein she alleged Ms. Banuelos was
in 	the 	custody 	of 	the 	New 	Mexico 	Children 	Youth 	and 	Families
Department 	(“CYFD”) 	when 	placed 	in 	residential 	treatment 	at
Rolling 	Hills 	in 	Ada, 	Oklahoma 	in 	December 	of 	2018. 	She 	contends
that Rolling Hills is a facility owned by Defendant Acadia. While
receiving 	treatment 	at 	Rolling 	Hills, 	Ms. 	Banuelos 	allegedly 	was
sexually assaulted on January 12, 2019, by an unknown staff member
and/or 	resident 	while 	in 	a 	“tv 	room” 	at 	the 	facility. 	See 	Second
Amended Complaint, p. 10, ¶ 68 (Docket Entry #67). Plaintiff also
alleges Ms. Banuelos was raped by a Rolling Hills’ employee in the
facility’s 	laundry 	room 	sometime 	between 	December 	13, 	2018, 	and
January 	30, 	2019. 1 	Ms. 	Banuelos 	was 	a 	minor 	at 	the 	time 	of 	the
alleged incidents. Id., p. 10, ¶¶ 69-70.
Based upon these and other allegations in the Second Amended
Complaint, Plaintiff asserts claims against Defendants Acadia and
Rolling 	Hills 	for 	negligence; 	negligent 	hiring, 	retention, 	and
supervision; 	civil 	conspiracy; 	negligence 	per 	se; 	professional
liability; 	breach 	of 	fiduciary 	duty; 	breach 	of 	contract 	(third-
party 	beneficiary); 	breach 	of 	covenant 	of 	good 	faith 	and 	fair
1 	Based 	upon 	the 	parties’ 	briefing, 	it 	appears 	there 	is 	a
dispute 	regarding 	the 	number 	of 	incidents 	involving 	Ms. 	Banuelos 	that
occurred during the time period when she was a resident at Rolling Hills.
However, for purposes of Plaintiff’s Motion and Rolling Hills’ objections
to 	the 	document 	requests 	at 	issue, 	the 	dispute 	does 	not 	affect 	this
Court’s decision.
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dealing 	(third-party 	beneficiary); 	and 	a 	claim 	under 	the 	Unfair
Practices Act. See Second Amended Complaint, pp. 15-67.
On 	March 	8, 	2019, 	Plaintiff 	served 	her 	First 	Set 	of
Interrogatories and Request for Production of Documents on Rolling
Hills. 	Rolling 	Hills 	responded 	to 	Plaintiffs’ 	discovery 	requests
on 	April 	27, 	2020. 	Through 	the 	Motion 	to 	Compel, 	Plaintiff 	seeks
the 	production 	of 	documents 	from 	Rolling 	Hills 	and/or 	additional
documents in response to Request for Production Nos. 9 and 24.
Personnel Records – Request for Production No. 9
Plaintiff seeks production of the personnel files of Rolling
Hills’ employees who had contact with Ms. Banuelos during her stay
at the facility. Defendant Rolling Hills objects to the request as
overly 	broad, 	irrelevant 	to 	the 	claims 	and 	defenses 	in 	the 	case,
and not proportional to the needs of the case. See generally, Fed.
R. Civ. P. 26(b)(1).
Request 	for 	Production 	No. 	9: 	Please 	attach
documentation 	of 	any 	and 	all 	personnel 	files 	for 	any
personnel/staff/employees/agents 	who 	had 	contact 	with
R.B., 	the 	Director 	of 	R.B.’s 	unit/house, 	R.B.’s
treatment 	coordinator/case 	manager, 	and 	any 	members 	of
R.B.’s treatment team, including:
 	training file documenting Rolling Hills’ training
and development file for all staff;
 	all 	orientation 	and 	training, 	including 	dates,
hours, 	and/or 	credits, 	names 	of 	trainer(s),
topics/areas of training, and sign-in sheets, if
any;
 	written 	confirmation 	by 	trainer 	or 	training
organization that training occurred;
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 	employee’s 	name, 	current 	address, 	telephone
number, 	and 	emergency 	contact(s), 	job 	title 	and
description;
 	evidence 	of 	licensure 	for 	those 	employees
required to be licensed;
 	date 	first 	employed 	and 	dates 	of 	transfers 	or
changes in position;
 	documentation 	of 	minimum 	of 	3 	employment
reference 	checks 	within 	3 	weeks 	prior 	to
employment 	(or 	if 	fewer 	than 	3 	references, 	the
additional 	and/or 	professional 	references
obtained to achieve the minimum of 3 references);
 	a 	copy 	of 	the 	employee’s 	current 	CPR 	and 	first
aid certificates;
 	criminal records clearance letter, and/or for un-
cleared staff, signed statement by administrator,
director, 	or 	operator 	attesting 	to 	direct
supervision 	of 	the 	un-cleared 	employee 	by 	a
cleared employee until the clearance is received;
 	application 	for 	employment 	or 	resume 	consistent
with agency policy;
 	performance reviews, as applicable;
 	job description(s).
Response: 	Defendant 	objects 	to 	the 	Request 	as 	overly
broad. 	The 	Request 	seeks 	the 	entire 	personnel 	file 	for
any 	staff 	member 	who 	had 	any 	contact 	with 	Rebecah
Banuelos. 	Thus, 	the 	Request 	seeks 	information 	and
documents that are not relevant to any party’s claim or
defense 	and 	are 	not 	proportional 	to 	the 	needs 	of 	the
case.
Defendant 	further 	objects 	as 	the 	personnel 	files
contain irrelevant personal information. Personnel files
often contain sensitive personal information, and it is
not 	unreasonable 	to 	be 	cautions 	about 	ordering 	their
entire 	contents 	disclosed 	willy-nilly. 	Reagan-Touhy 	v.
Walgreen 	Co., 	526 	F.3d 	641, 	648-49 	(10th 	Cir. 	2008).
Indeed, 	the 	Supreme 	Court 	has 	underscored 	that 	“the
requirement of Rule 26(b)(1) that the material sought in
discovery 	be 	‘relevant’ 	should 	be 	firmly 	applied, 	and
the 	district 	courts 	should 	not 	neglect 	their 	power 	to
restrict discovery [to protect] ‘a party or person from
annoyance, 	embarrassment, 	[or] 	oppression….’” 	Reagan-
Touhy 	v. 	Walgreen 	Co., 	526 	F.3d 	641, 	648-49 	(10th 	Cir.
2008) citing to Herbert v. Lando, 441 U.S. 153, 177, 99
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S.Ct. 1635, 60 L.Ed.2d 115 (1979) (quoting Fed.R.Civ.P.
26(c)(1); 	see 	also 	Gehring 	v. 	Case 	Corp., 	43 	F.3d 	340,
342 	(7th 	Cir. 	1994) 	(no 	abuse 	of 	discretion 	where
“privacy interests, coupled with [the district court’s]
determination 	to 	keep 	the 	trial 	focused…, 	justified
limiting [plaintiff’s discovery of] personnel files”).
Prior 	to 	filing 	her 	Motion, 	Plaintiff 	and 	Rolling 	Hills
conferred and attempted to resolve their issues concerning Request
for Production No. 9. Rolling Hills produced the personnel file of
the employee accused of raping Ms. Banuelos in the laundry room of
the 	facility. 	Plaintiff 	then 	agreed 	to 	narrow 	the 	request 	to
include only the personnel files of employees who provided care or
treatment 	to 	Ms. 	Banuelos 	and 	to 	certain 	documents 	pertaining 	to
those 	identified 	employees’ 	qualifications/training, 	background
investigations, 	and 	write-ups 	or 	disciplinary 	actions 	for 	the
performance of job duties and training. Because the parties could
not reach an agreement, no additional personnel files were produced
by Rolling Hills.
Plaintiff 	contends 	the 	additional 	personnel 	files 	are
relevant 	to 	the 	claims 	at 	issue, 	arguing 	the 	requested 	employee
files 	are 	relevant 	to 	Rolling 	Hills’ 	hiring 	practices 	and
disciplinary measures as they relate to those employee’s providing
care 	and 	treatment 	to 	Ms. 	Banuelos 	leading 	up 	to 	and 	at 	the 	time
of 	the 	alleged 	sexual 	assaults 	against 	her. 	Plaintiff 	does 	not
seek 	the 	personal 	information 	of 	Rolling 	Hills’ 	employees 	and
expects 	Rolling 	Hills 	will 	redact 	such 	information 	prior 	to 	any
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production 	and 	will 	produce 	the 	personnel 	files 	pursuant 	to 	the
Agreed 	Protective 	Order 	(Docket 	Entry 	#81) 	entered 	in 	the 	case.
Rolling Hills continues to assert the request is overly broad (as
it will result in the production of personnel files for well over
fifty (50) employees), seeks information irrelevant to Plaintiff’s
claims 	(as 	there 	was 	only 	one 	incident 	and 	Rolling 	Hills 	has
produced the pertinent personnel file for the individual employee
involved), and the request is not proportional to the needs of the
case.
In Count II of the Second Amended Complaint, Plaintiff alleges
negligence by all Defendants. Although Plaintiff generally alleges
negligence 	on 	the 	theory 	of 	an 	overall 	“systemic” 	practice 	by
Defendants of negligent hiring, supervising, and retaining control
of 	its 	employees, 	Plaintiff 	also 	specifically 	alleges 	that
Defendants owed a duty to Ms. Banuelos to provide her with a safe
environment, to exercise custodial control over her, to adequately
train 	the 	employees 	charged 	with 	ensuring 	Ms. 	Banuelos’s 	safety,
and 	to 	supervise 	those 	employees 	caring 	for 	her. 	Plaintiff 	also
alleges Defendants breached the duty of care owed to Ms. Banuelos,
a minor at the time, by failing to supervise the unknown employee
or 	resident 	who 	sexually 	assaulted 	her 	on 	January 	12, 	2019, 	and
the 	male 	employee 	who 	allegedly 	raped 	her 	in 	the 	laundry 	room
between December 13, 2018, and January 30, 2019. See Second Amended
Complaint, pp. 15-16, ¶¶ 101-102.
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Plaintiff’s negligence claim includes allegations of a breach
of the duty of care specific to the care and safety of Ms. Banuelos
and 	not 	just 	general 	allegations 	of 	a 	lack 	of 	care 	and 	safety 	to
all 	facility 	residents. 	It 	also 	involves 	accusations 	of 	a 	breach
of 	that 	duty 	of 	care 	and 	safety 	related 	to 	the 	hiring, 	training,
and 	supervision 	of 	employees 	involved 	in 	the 	care 	and 	safety 	of
Ms. Banuelos. This Court therefore finds that the personnel files
from 	Rolling 	Hills 	for 	those 	employees 	who 	provided 	care 	and
treatment 	to 	Ms. 	Banuelos, 	including 	the 	supervision 	of 	Ms.
Banuelos, 	for 	the 	nearly 	four-month 	time 	period 	she 	was 	in
residential 	treatment 	at 	the 	facility 	are 	relevant 	to 	her 	claims
and proportional to the needs of the case. As previously agreed by
Plaintiff, the production shall be limited to only those documents
pertaining 	to 	the 	identified 	employees’ 	qualifications/training,
background 	investigations, 	and 	write-ups 	or 	disciplinary 	actions
for 	the 	performance 	of 	job 	duties 	and 	training. 	Rolling 	Hills 	is
directed to redact all personal employee information, e.g., social
security 	numbers, 	financial 	information, 	and 	health 	information,
from 	such 	documents 	and 	to 	produce 	them 	subject 	to 	the 	Agreed
Protective Order entered in the case on April 27, 2020. See Agreed
Protective Order (Docket Entry #81).
Reports of Sexual Activity – Request for Production No. 24
Plaintiff 	also 	seeks 	information/documents 	of 	reports 	by
Rolling Hills to any State agency regarding acts of sexual activity
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between 	residents 	and 	staff 	that 	occurred 	from 	2014 	through 	the
date 	of 	Rolling 	Hills’ 	response 	to 	discovery, 	or 	April 	27, 	2020.
Rolling 	Hills 	objects 	to 	the 	request 	as 	overly 	broad, 	irrelevant
to any issue in the case, and not proportional to the needs of the
case. 	See generally, Fed. R. Civ. P. 26(b)(1).
Request 	for 	Production 	No. 	24: 	Please 	attach 	reports
made 	by 	Rolling 	Hills 	to 	any 	State 	agency 	regarding
sexual 	activity 	between 	residents 	and 	staff 	from 	2014
through 	the 	date 	of 	your 	responses 	to 	this 	discovery,
including 	any 	determination 	of 	cause 	of 	injuries 	to
clients as a result of violence. [Please note Plaintiff
does 	not 	object 	to 	Defendant 	redacting 	personal
identifier information for clients from such reports].
Response: 	Objection. 	The 	Request 	is 	overly 	broad, 	not
relevant 	to 	any 	party’s 	claim 	or 	defense, 	and 	is 	not
proportional to the needs of the case.
This 	Court 	agrees 	with 	Rolling 	Hills 	that 	the 	broad 	request
for the production of documents for reports made by Rolling Hills
to any State agency regarding sexual activities between residents
and 	staff 	at 	Rolling 	Hills 	from 	2014 	through 	the 	date 	of 	the
discovery responses (which is well past the date when Ms. Banuelos
left 	the 	facility) 	is 	not 	relevant 	to 	the 	claims 	in 	the 	case 	and
is not proportional to the needs of the case. The only reports of
sexual activity between residents and staff to which Plaintiff is
entitled 	to 	information/documents 	from 	Rolling 	Hills 	are 	those
reports pertaining to incidents involving Ms. Banuelos and/or the
individual employees alleged to be involved in incidents with Ms.
Banuelos. 	Thus, 	Plaintiff 	is 	not 	entitled 	to 	the 	production 	of
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information/documents 	pertaining 	to 	any 	sexual 	activities 	that
allegedly 	occurred 	while 	Ms. 	Banuelos 	was 	a 	resident 	at 	the
facility, 	e.g., 	a 	report 	of 	sexual 	assault 	involving 	another
resident 	and 	another 	employee. 	To 	the 	extent 	it 	has 	not 	done 	so,
Rolling 	Hills 	shall 	produce 	to 	Plaintiff 	information/documents
pertaining 	to 	any 	reports 	it 	made 	to 	any 	State 	agency 	regarding
sexual activities involving Ms. Banuelos and/or reports of sexual
activities involving any employee who allegedly sexually assaulted
Ms. Banuelos.
IT 	IS 	THEREFORE 	ORDERED 	that 	Plaintiff’s 	Motion 	to 	Compel
Discovery 	(Docket 	Entry 	#93) 	is 	hereby 	GRANTED, 	in 	part, 	and
DENIED, in part. The Motion is GRANTED to the extent that Defendant
Rolling 	Hills 	must 	supplement 	its 	response 	to 	Request 	for
Production 	No. 	9 	by 	producing 	the 	personnel 	records 	for 	those
employees 	who 	provided 	for 	the 	care 	and 	safety 	of 	Ms. 	Banuelos,
including 	supervision, 	while 	she 	was 	a 	resident 	at 	the 	facility,
limited to documentation/information of the identified employees’
qualifications/training, background information, and write-ups or
disciplinary 	actions 	for 	the 	performance 	of 	job 	duties 	and
training. 	Defendant 	Rolling 	Hills 	shall 	redact 	all 	personal
information 	and 	produce 	such 	documents 	pursuant 	to 	the 	Agreed
Protective 	Order 	previously 	entered 	in 	the 	case. 	The 	Motion 	is
also 	GRANTED 	to 	the 	extent 	that 	Plaintiff 	is 	entitled 	to 	the
production of any information/documents pertaining to reports made
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by 	Rolling 	Hills 	to 	any 	State 	agency 	regarding 	sexual 	activities
involving Ms. Banuelos and/or the employees involved in the alleged
sexual 	assault 	of 	Ms. 	Banuelos. 	However, 	the 	Motion 	is 	DENIED 	to
the 	extent 	Plaintiff 	requests 	production 	of 	all
information/documents 	of 	reports 	by 	Rolling 	Hills 	to 	any 	State
agency 	of 	any 	sexual 	activities 	at 	Rolling 	Hills 	as 	far 	back 	as
2014 	and 	through 	the 	date 	of 	discovery 	responses, 	or 	April 	27,
2020.
Defendant Rolling Hills must produce any documents responsive
to Requests for Production Nos. 9 and 24 by SEPTEMBER 2, 2020.
IT IS SO ORDERED this 19th day of August, 2020.
_____________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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