Wagle v. Michigan Department of Corrections et al

Filing 171

ORDER denying 138 Motion to Compel; denying 139 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDDIE WAGLE,
Plaintiff,

CIVIL ACTION NO. 10-CV-10506

vs.
DISTRICT JUDGE NANCY G. EDMUNDS
MICHIGAN DEPARTMENT
OF CORRECTIONS, et. al,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants.
________________________/

ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY FROM
DEFENDANT CMS (DOCKET NO. 138) AND DENYING PLAINTIFF’S MOTION TO
COMPEL/SUBPOENA DISCOVERY FROM MDOC DEFENDANTS (DOCKET NO.
139)
This matter comes before the Court on two motions. The first motion is Plaintiff's Motion
to Compel Discovery from Defendant Correctional Medical Services, Inc. (CMS). (Docket no. 138).
Defendant CMS filed a response. (Docket no. 141). The second motion is Plaintiff’s Motion to
Compel/Subpoena Discovery From Michigan Department of Corrections (MDOC) Defendants.
(Docket no. 139). No response has been filed and the time for responding has expired. All pretrial
matters have been referred to the undersigned for action. (Docket no. 7). The Court dispenses with
oral argument on the motions pursuant to E.D. Mich. LR 7.1(f). These matters are now ready for
ruling.
1.

Plaintiff’s Motion to Compel Discovery from Defendant CMS
Plaintiff moves for an Order compelling Defendant CMS to produce documents requested

in Plaintiff’s First Request for Production of Documents. Plaintiff shows that he served his First
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Request for Production of Documents to Defendant CMS on May 13, 2011, seeking responses to
six document requests. (Docket no. 138). Defendant CMS served written responses and objections
to the requests on June 15, 2011. (Docket no. 141, ex. B). Plaintiff now moves for an Order
compelling Defendant CMS to produce the documents Plaintiff has requested.
Document Request nos. 1, 2, and 5 ask Defendant CMS to provide information or documents
pertaining to (a) the name of any doctor or person employed by Prison Health Services, Inc. (PHS)
who is or was authorized to approve and/or provide prisoners with prescription shoes from January
2006 to the present, (b) the contract between PHS and the MDOC, and (c) memo’s generated by
PHS concerning the provision of Michigan prisoners with prescription or non-prescription shoes.
Defendant CMS objected to the requests, stating in part that it does not have information or
documents pertaining to the activities of PHS within its possession, custody, or control. In his
motion Plaintiff argues that he mistakenly requested information from CMS that pertains to PHS
when he instead meant to request information pertaining to Defendant CMS. Although Plaintiff
recognized that he made a mistake, he does not argue or show that he served timely amended
requests to Defendant requesting information pertaining to Defendant CMS. At the time the instant
Motion to Compel was filed the discovery deadline had passed. (Docket no. 119). The Court will
not rewrite Plaintiff’s requests and compel a response after the close of discovery. The Court will
deny Plaintiff’s Motion to Compel further responses as to these requests.
Document Request nos. 3 and 4 ask for any rules, regulations or policies concerning (a) the
treatment of prisoners with diabetes and (b) the provision of prescription shoes to prisoners with or
without diabetes. Defendant CMS objected to the requests for a host of reasons, then responded by
stating that it did not maintain any such documents within its possession, custody, or control. The

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Court is satisfied with Defendant’s response and will deny the motion.
Document Request no. 6 asks “[i]f any of the above mentioned documents or are not released
please give reasons why [sic].” Defendant CMS objected to the request stating that it did not
maintain any responsive documents in its possession, custody, or control. The Court will deny
Plaintiff’s Motion as to this request.
2.

Plaintiff’s Motion to Compel/Subpoena Discovery From MDOC Defendants
Plaintiff filed a Motion to Compel/Subpoena Discovery from MDOC Defendants. The

motion, which was filed and served after the MDOC Defendants were dismissed from this lawsuit,
asks the Court to issue an order or subpoena compelling the MDOC Defendants to produce
documents that Plaintiff requested in Plaintiff’s Requests for Production of Documents dated July
28, 2011, December 28, 2011 and December 29, 2011. (Docket no. 139). Since the MDOC and
MDOC Defendants were no longer parties to this action at the time the requests were served,
Plaintiff was required to seek its documents by way of a subpoena for production of documents
under Federal Rule of Civil Procedure 45. As provided in Rule 45(a)(3), the clerk of the court “must
issue a subpoena, signed but otherwise in blank, to a party who requests it” and that party must
complete it before service. Fed. R. Civ. P. 45(a)(3). The instant motion was filed after the close of
discovery and Plaintiff has not shown that he requested a subpoena from the clerk’s office. The
Court will not issue a subpoena, particularly after the close of discovery, or compel the MDOC or
its employees to provide information or documents that were not properly sought. See Anthony v.
Owen, No. 07-10351, 2012 WL 691756, at *2 (E.D. Mich. March 1, 2012). Accordingly, the Court
will deny Plaintiff’s motion.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Compel Discovery from

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Defendant Correctional Medical Services, Inc. (CMS) (docket no. 138), and Plaintiff’s Motion to
Compel/Subpoena Discovery From MDOC Defendants (docket no. 139) are DENIED for the
reasons stated herein.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: October 9, 2012

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Eddie Wagle and Counsel of
Record on this date.
Dated: October 9, 2012

s/ Lisa C. Bartlett
Case Manager

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