Price v. Stephenson et al
ORDER Denying Without Prejudice Plaintiff's 17 Motion Discovery--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-13434
District Judge Thomas L. Ludington
Magistrate Judge Anthony P. Patti
SCOTT STEPHENSON, et
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR
DISCOVERY (DE 17)
Plaintiff, Tyrone Price, a federal prisoner who is proceeding without the
assistance of counsel, filed his complaint and application to proceed in forma
pauperis on September 21, 2016. (DE 1, 2.) Plaintiff asserts that various prison
officials and employees of the Midland County Jail violated his rights under the
First Amendment by opening his legal mail outside of his presence and by holding
his outgoing legal mail.1 He asks the Court to “sue and prosecute” because his
Constitutional rights were violated.
Defendants timely filed a motion to dismiss or, in the alternative, a motion
for summary judgment, on March 6, 2017, to which Plaintiff must respond by May
Plaintiff has since been transferred to the Hazelton Penitentiary.
1, 2017. (DE 16.)2 Defendants assert that they are entitled to summary judgment
pursuant to Federal Rule of Civil Procedure 56 because Plaintiff’s claims are
limited to declaratory and injunctive relief, which are mooted by his transfer. They
also contend that they have immunity from Plaintiff’s official capacity claims.
Plaintiff filed the instant motion on March 13, 2017, asking the court to
compel certain Defendants to produce “evidence obtained at the Midland County
Jail,” specifically an inmate’s email account of Plaintiff’s correspondence with
prison administration. (DE 17 at 1.) The Court will construe Plaintiff’s motion as
one to compel discovery pursuant to Federal Rule of Civil Procedure 37.
Pursuant to Rule 37, a party may file a motion to compel production of
requested documents. The Rule provides that “an evasive or incomplete
disclosure, answer, or response must be treated as a failure to disclose, answer, or
respond.” Fed. R. Civ. P. 37(a)(4). Additionally, any motion to compel filed
under Rule 37 “must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make
disclosures or discovery. . . .” Fed. R. Civ. P. 37(a).
Defendants refer to Rule 12(b), but seem to argue their motion solely under Rule
Plaintiff’s motion is premature. Plaintiff cannot successfully move for an
order compelling documents when he did not first seek this information through
Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iv). As best as the Court can discern,
Plaintiff simply filed his discovery requests and asks the Court to order Defendants
to respond. The materials Plaintiff seeks may be discoverable, but Plaintiff has
failed to properly serve the requests pursuant to Federal Rule of Civil Procedure
34(a). Furthermore, the filing of such discovery material is improper pursuant to
Local Rule 26.2. E.D. Mich. LR 26.2 (“A party or other person may not file
discovery material” except in limited circumstances) (emphasis added).
Moreover, Plaintiff does not indicate, by affidavit or declaration, that such
discovery is necessary to justify his opposition to the pending motion for summary
judgment pursuant to Rule 56(d). Accordingly, the Court is unable to offer him
such relief at this point and Plaintiff’s motion is therefore DENIED WITHOUT
PREJUDICE as premature.
IT IS SO ORDERED.
Dated: March 17, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing order was sent to parties of record on
March 17, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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