Jones v. Barnhart et al

Filing 94

ORDER Granting in Part Plaintiff's 72 Motion to Compel Discovery and Denying in Part Defendant Barnhart's 74 Motion to Stay Discovery. Signed by Magistrate Judge Anthony P. Patti. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN JONES (#162751),
Plaintiff,

Case No. 2:10-cv-12114
Hon. Arthur J. Tarnow
Magistrate Judge Anthony P. Patti

v.
PATRICIA BARNHART and
PAULA MASS,
Defendants.
/

ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL
DISCOVERY (DE 72) and DENYING IN PART DEFENDANT
BARNHART’S MOTION TO STAY DISCOVERY (DE 74)
A.

The Original Complaint and Previous Motion to Compel

1.

Factual Background
By way of background, Plaintiff John Jones (#162751) represents he was

rendered a paraplegic by a May 18, 1984 gunshot wound. DE 1 at 4 ¶ 2, DE 59 at
3.

He is currently incarcerated at the Michigan Department of Corrections

(MDOC) Thumb Correctional Facility (TCF), where he is serving a sentence
imposed on July 15, 1991 for a September 18, 1987 offense of first degree murder
(Mich. Comp. Laws § 750.316) in Case No. 91-0089-FC (Kalamazoo

1

County).1http://www.michigan.gov/correctiopns,
According to Plaintiff, he was transferred to TCF on March 20, 2002. DE 1
at 4, DE 59 at 3. Plaintiff explains that handicapped prisoners at TCF are housed
“in the downstairs levels of the two units with elevators to accommodate
wheelchair access to the ground floor – the ‘B’ side of Auburn unit and the ‘A’
side of Cord unit.” DE 59 at 3. Plaintiff was originally placed in Cord A;
however, during June 2005, he was moved to Auburn B. DE 1 at 4 ¶ 3; see also
DE 59 at 3. In September 2005, Plaintiff had an MDOC Special Accommodation
Notice for a wheelchair, and this was renewed in October 2008. DE 1 at 47.
The allegations underlying the instant case begin during the week of August
17, 2009, when Plaintiff alleges the Auburn elevator broke down, and continue
through October 16, 2009, when Plaintiff alleges he was permitted to move to Cord
A. During this time, Plaintiff suffered from a bladder infection, for which he was
treated with medication, and a toothache, for which he underwent an extraction on
November 23, 2009. See DE 1 at 1 at 4-9 ¶¶ 3-26, DE 59 at 3-4, DE 34 at 6, 1819, 25-29.

1

See www.michigan.gov/corrections, “Offender Search.”
2

2.

Procedural Background
Jones originally filed this case pro se on May 26, 2010 against several

defendants, including Barnhart, Burton, Wilson and Rewerts. DE 1. However,
Burton, Rewerts and Wilson were terminated as defendants by way of the Court’s
January 17, 2012 order. DE 41.
On July 12, 2012, Plaintiff filed a motion for discovery (DE 48), whereby he
sought information from Assistant Unit Manager Hohn, Nurse Smith, Corrections
Officer Gooch, Corrections Officer Delosh, as well as a copy of the log book from
the Auburn Unit from August 21, 2009 through October 17, 2009.
Defendants Burton, Wilson and Rewerts filed a response (DE 50), after
which Magistrate Judge Komives entered a report (DE 53) which recommended, in
part, that the Court “deny plaintiff’s July 12, 2012 motion for discovery (Doc. Ent.
48) without prejudice to refiling his request in accordance with Fed. Rules Civ. P.
26-37 if and when defendants Barnhart and TCF Health Care have been served.”
DE 53 at 10.
On August 22, 2013, the Court entered an order (DE 57) denying the motion
(DE 48) without prejudice.

3

B.

The Amended Complaint and Pending Motions
In the meantime, plaintiff had filed a motion for leave to amend his

complaint (DE 56), which the Court granted on August 22, 2013 (DE 58).
Plaintiff’s August 22, 2013 amended complaint (DE 59) names two (2) defendants
(Patricia Barnhart and Paula Mass) in their personal capacities. See DE 59 at 1, 9.
Defendants Barnhart and Mass have since appeared. See DE 62, DE 66, DE 90 &
DE 93.
Currently before the Court are several motions, including Defendant
Barnhart’s March 25, 2014 second motion for summary judgment (DE 70). In her
dispositive motion, Defendant Barnhart argues (I) “Plaintiff’s claims, even if true,
do not amount to an Eighth Amendment violation[;]” (II) “[t]here is no individual
liability under the American[s] with Disabilities Act;” and (III) “Barnhart is
entitled to qualified immunity because Jones has not shown that Barnhart violated
any clearly established federal statutory or constitutional right.” DE 70 at 10-21.
Plaintiff filed a response to this motion on February 4, 2015. DE 87.
In addition, there are other matters pending before this Court: Plaintiff’s
April 9, 2014 motion to compel discovery (DE 72) and Barnhart’s April 15, 2014
motion to stay discovery (DE 74). Plaintiff’s response was due on May 23, 2014
(DE 75), but Plaintiff filed a response on June 25, 2014 (DE 79).

4

C.

Discussion

1.

Defendant Barnhart has not filed a response to Plaintiff’s discovery
motion.
On April 9, 2014, approximately two (2) weeks after Defendant Barnhart

filed her pending dispositive motion, Plaintiff Jones filed a motion to compel
discovery. Therein, he claims to have submitted a formal discovery request to
defense counsel on January 25, 2014,2 and he lists Fed. R. Civ. P. 31 and Fed. R.
Civ. P. 34 discovery requests. DE 72 at 1-3.
“A respondent opposing a motion must file a response, including a brief and
supporting documents then available.” E.D. Mich. LR 7.1(c)(1). Furthermore,
“[a] response to a nondispositive motion must be filed within 14 days after service
of the motion.” E.D. Mich. LR 7.1(e)(2)(B). Thus, any response by Defendant
Barnhart to Plaintiff’s April 9, 2014 motion to compel discovery (DE 72) was due
on or about April 28, 2014. Fed. R. Civ. P. 6(a), 6(d).
To date, defendant Barnhart has not filed a response to Plaintiff’s April 9,
2014 motion to compel discovery (DE 72).

2

Plaintiff claims that his January 25, 2014 formal discovery request was
submitted pursuant to “Rule 26(3)(iii).” DE 72 at 1. It is not clear to the Court
5

2.

Defendant Barnhart did not file a timely motion for protective order.
The Court interprets Plaintiff’s April 9, 2014 motion to compel discovery

(DE 72) as seeking answers and responses to a discovery request submitted on
January 25, 2014. Fed. R. Civ. P. 26(c) permits a party or person from whom
discovery is sought to move for a protective order. “The court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1) (“Protective
Orders.”).
As noted above, the amended complaint in this case was filed on August 22,
2013 (DE 59), and Defendant Barnhart appeared in this case in late November
2013 or early December 2013. See DE 62, DE 63. Therefore, Defendant Barnhart
had appeared in this case by the time Plaintiff served the discovery requests at
issue in this case, which he alleges occurred on January 25, 2014. DE 72 at 1.
If Defendant Barnhart sought to resist such discovery requests, she had the
option of filing a timely motion for a protective order. For example, with respect
to the Fed. R. Civ. P. 34 request, Defendant Barnhart might have filed a Fed. R.
Civ. P. 26(c) motion in lieu of responding or objecting within the window set forth
in Fed. R. Civ. P. 34(b)(2) (“Responses and Objections.”). Importantly, Defendant

which subsection of Rule 26 Plaintiff intended to cite.
6

Barnhart’s April 15, 2014 motion to stay discovery (DE 74) does not take issue
with Plaintiff’s April 9, 2014 claim that he submitted discovery requests on
January 25, 2014. Thus, the Court is left to assume that Defendant Barnhart
received the purported January 25, 2014 discovery request but intentionally did not
respond.
This Court does not interpret Defendant Barnhart’s motion to stay (DE 74)
as a motion for a protective order regarding Plaintiff’s January 25, 2014 discovery
requests, both because it was not filed within the time parameters of Rules 26(c)
and 34(b)(2), and because it does not specifically target the substance or
reasonableness of those requests.
3.

Defendant Barnhart’s motion to stay discovery does not address the
merits of Plaintiff’s Jones’s discovery requests.
In her April 15, 2014 motion (DE 74) to stay discovery, Defendant Barnhart

limits her motion to an assertion that that the Court should stay discovery because
she “has filed a Motion for Summary Judgment [DE 70] which is dispositive of
Plaintiff Jones’s Complaint and is based, in part, on qualified immunity.” DE 74 at
8-10. Within her motion, Defendant Barnhart relies upon Fed. R. Civ. P. 26, such
as Fed. R. Civ. P. 26(b) (“Discovery Scope and Limits.”) and Fed. R. Civ. P. 26(d)
(“Timing and Sequence of Discovery.”). See DE 74 at 1, 9.

7

Defendant Barnhart’s motion to stay discovery (DE 74) does not address the
merits of Plaintiff’s discovery requests. While Defendant Barnhart contends that
her motion is filed pursuant to Fed. R. Civ. P. 26(b)(2)(C) (DE 74 at 1), she does
not address the relevance of the requests as contemplated by Fed. R. Civ. P.
26(b)(1), nor does she specifically object to the discovery requests on the bases
that answering or responding to them would be unreasonably cumulative or
duplicative, too burdensome or expensive, etc., as contemplated by Fed. R. Civ. P.
26(b)(2)(c).
Instead, the Court notes that the document request is tailored to the period
between August 18, 2009 to October 16, 2009,3 and the five requests posed to
Defendant Barnhart are titled as requests for deposition by written questions under
Fed. R. Civ. P. 31, yet appear, in reality, to be interrogatories under Fed. R. Civ. P.
33. See DE 72 at 1-3. Thus, the discovery sought from Barnhart appears to be
modest, straightforward and not terribly burdensome or expensive.

3

In his August 22, 2013 amended complaint, Plaintiff, who claims to be
significantly disabled, alleges that the Auburn Unit elevator broke down the week
of August 17, 2009 and also that he was permitted to move to Cord Unit on
8

4.

Defendant Barnhart’s motion to stay discovery is based upon her
pending motion for summary judgment, which, among other things,
raises the defense of qualified immunity.
The crux of Defendant Barnhart’s motion to stay is that she “has a pending

Motion for Summary Judgment before the Court.” DE 74 at 6-7. Elsewhere, she
explains, “Barnhart has filed a potentially dispositive motion. The Court should
exercise its discretion and stay further discovery at this time.” DE 74 at 10.
The Court acknowledges Defendant Barnhart’s reliance upon precedent
from the Supreme Court of the United States that discovery should not be allowed
until the threshold immunity question is resolved (see DE 74 at 8):
Reliance on the objective reasonableness of an official's conduct, as
measured by reference to clearly established law, should avoid
excessive disruption of government and permit the resolution of many
insubstantial claims on summary judgment. On summary judgment,
the judge appropriately may determine, not only the currently
applicable law, but whether that law was clearly established at the
time an action occurred. If the law at that time was not clearly
established, an official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to “know”
that the law forbade conduct not previously identified as unlawful.
Until this threshold immunity question is resolved, discovery should
not be allowed. If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct. Nevertheless, if
the official pleading the defense claims extraordinary circumstances
and can prove that he neither knew nor should have known of the
relevant legal standard, the defense should be sustained. But again, the
defense would turn primarily on objective factors.
October 16, 2009. DE 59 at 3-4.
9

Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982) (internal footnotes omitted)
(emphasis added); see also Siegert v. Gilley, 500 U.S. 226, 232 (1991) (quoting
Harlow, 457 U.S. at 818).4
Several years later, in Crawford-El v. Britton, 523 U.S. 574 (1998), the
Supreme Court considered “whether, at least in cases brought by prisoners, the
plaintiff must adduce clear and convincing evidence of improper motive in order to
defeat a motion for summary judgment.” Crawford-El, 523 U.S. at 577-578.
Within its discussion of Harlow’s reasoning, the Court stated:
Discovery involving public officials is indeed one of the evils that
Harlow aimed to address, but neither that opinion nor subsequent
decisions create an immunity from all discovery. Harlow sought to
4

The Court acknowledges Defendant Barnhart’s reliance upon Kennedy v.
City of Cleveland, 797 F.2d 297, 299 (6th Cir. 1986) (“if the pleading itself is
insufficient the defendant may file a motion to dismiss and upon denial thereof
take an immediate appeal. Because Mitchell[v. Forsyth, 472 U.S. 511 (1985)]
contemplates that the defendant is to be also protected from the burdens of
discovery until the resolution of that issue, Mitchell necessarily holds that the court
is further obligated, upon application, not only to refrain from proceeding to trial
but to stay discovery until that issue is decided.”) (external citation omitted).
However, this statement was made with respect to a motion to dismiss.
While Defendant Barnhart’s pending dispositive motion (DE 70) is brought, in
part, pursuant to Fed. R. Civ. P. 12(b)(6)(DE 70 at 1 ¶ 1), in content, Defendant
Barnhart argues that she is entitled to summary judgment. See DE 70 at 10-12.
This interpretation is bolstered by the attachments of affidavits (DE 70-3, DE 70-4,
DE 70-5, DE 70-6), as well as the reference to Plaintiff’s previously filed medical
records (DE 34, DE 70-7). In other words, Defendant Barnhart’s March 25, 2014
dispositive motion (DE 70) is not based on the face of the amended complaint (DE
59).
10

protect officials from the costs of “broad-reaching” discovery, and we
have since recognized that limited discovery may sometimes be
necessary before the district court can resolve a motion for summary
judgment based on qualified immunity.
Crawford-El v. Britton, 523 U.S. at 593 n.14 (internal citations omitted) (citing
Anderson v. Creighton, 483 U.S. 635, 646, n. 6 (1987), Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)); see also Crawford-El, 523 U.S. at 597-601.
5.

Plaintiff has, effectively, shown that facts are unavailable to him as
contemplated by Fed. R. Civ. P. 56(d).
By way of the Court’s April 21, 2014 notice (DE 75), Plaintiff’s responses to

Defendant Barnhart’s motion for leave to file a second motion for summary
judgment (DE 69) and Defendant Barnhart’s motion to stay discovery (DE 74)
were due on May 23, 2014. Plaintiff filed a request for enlargement of time (DE
77) - to respond to Defendant Barnhart’s motion for leave (DE 69) - which the
Court later granted (DE 83).
On June 25, 2014, Plaintiff filed his combined response (DE 79) to
Defendant Barnhart’s motions (DE 69, DE 74).

Therein, he refers to his

aforementioned July 12, 2012 discovery motion (DE 48) and the Court’s February
6, 2013 report and recommendation (DE 53), which was adopted by the Court on
August 22, 2013 (DE 57). Then, he claims the instant motion to compel discovery
(DE 72) “was him refiling his request in accordance with the Magistrate’s

11

recommendation.” See DE 79 at 10.
Ideally, plaintiff would have filed an affidavit or declaration reflecting that
he needs time to take discovery in order to properly respond to Defendant
Barnhart’s motion:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d) (“When Facts Are Unavailable to the Nonmovant.”).
However, “[w]e construe filings by pro se litigants liberally.” Owens v.
Keeling, 461 F.3d 763, 776 (6th Cir. 2006) (citations omitted); see also Boswell v.
Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (“Pro se plaintiffs enjoy the benefit of a
liberal construction of their pleadings and filings.”). Here, the Court is inclined to
construe Plaintiff’s unsworn April 9, 2014 motion to compel discovery (DE 72),
which lists Plaintiff’s Jones’s purported Fed. R. Civ. P. 31 and Fed. R. Civ. P. 34
discovery requests, together with Plaintiff’s unsworn June 25, 2014 response (see
DE 79 at 3 ¶ c, DE 79 at 10), as a Fed. R. Civ. P. 56(d) request. See Farah v.
Wellington, 295 F.App’x 743, 747-748 (6th Cir. 2008) (“Farah's ‘motion to dismiss’
or, in the alternative, request for an extension of time to conduct discovery and file

12

a memorandum constitutes a request for relief under Rule 56(f)[;]” “Because
qualified immunity is a threshold issue, the district court did not abuse its
discretion in limiting the scope of Farah's Rule 56(f) request for additional
discovery to information related to the defense.”).
Although neither Plaintiff’s April 9, 2014 motion to compel discovery (see
DE 72 at 1-4) nor Plaintiff’s June 25, 2014 response (DE 79 at 1-4, 5-10) are
signed under penalty of perjury, when read together, these documents notify the
Court of Plaintiff’s position that he “has not had the opportunity to seek the
discovery necessary to give weight to the claims put forth in his civil suit[,]” and
“[i]n order for Plaintiff to fully respond to these and other claims made by
Defendant, [d]iscovery must be conducted.” See DE 79 at 10 (emphasis added);
see also Joseph v. City of Dallas, 277 F.App’x 436, 443-444 (5th Cir. 2008) (“We
are not generally inclined to impose a literal interpretation of Rule 56(f) upon pro
se litigants. However, at a minimum, a party must show: (1) why he needs
additional discovery; and (2) how that discovery would create a fact issue that
would defeat summary judgment.” ) (internal citations omitted)
6.

The facts Plaintiff seeks to establish go to the issue of “objective
reasonableness.”
Finally, the Court should consider whether the requested discovery “would

create a fact issue that would defeat summary judgment.” Joseph, 277 F.App’x at

13

444. If so, then to deny Plaintiff the opportunity to get answers to his discovery
requests is akin to asking him to defend against the pending dispositive motion
with one hand tied behind his back. If not, then it would be futile for the Court to
grant Plaintiff’s discovery motion (DE 72) in the face of the pending dispositive
motion. In addressing Plaintiff’s Fed. R. Civ. P. 56(d) discovery request, the Court
is mindful of the Supreme Court’s direction that discovery should not be allowed
until the issue of qualified immunity is resolved. Harlow, 457 U.S. at 818. At
least one Court has stated: “Liberal application of rule 56(f) should not be allowed
to subvert the goals of Harlow and its progeny. Unless parties opposing qualified
immunity based summary judgment motions are required to show how discovery
will enable them to rebut a defendant's showing of objective reasonableness,
summary judgment should be granted.” Jones v. City and County of Denver,
Colo., 854 F.2d 1206, 1211 (10th Cir. 1988); see also Lewis v. City of Ft. Collins,
903 F.2d 752, 758 (10th Cir. 1990) (quoting Jones, 854 F.2d at 1211). Still, as the
Supreme Court has acknowledged, “[t]he judge does . . . have discretion to
postpone ruling on a defendant's summary judgment motion if the plaintiff needs
additional discovery to explore ‘facts essential to justify the party's opposition.’”
Crawford-El v. Britton, 523 U.S. at 599 n.20 (quoting Fed. R. Civ. P. 56(f)).

14

There are such facts in dispute in this case. As noted above, Defendant
Barnhart’s pending dispositive motion (DE 70) raises the issue of qualified
immunity. Within her March 25, 2014 qualified immunity argument (DE 70 at 1921), Defendant Barnhart states, “Jones has not shown that Barnhart did anything
that was objectively unreasonable; indeed, he can’t show that she did anything
wrong because he never complained to her.” DE 70 at 21 (emphasis in original);
see also DE 70-6 at 3 ¶ 2 (Barnhart Affidavit).
Plaintiff’s April 9, 2014 motion to compel, which this Court interprets as
seeking answers and responses to a January 25, 2014 discovery request, seeks:
(1)

Pursuant to Fed. R. Civ. P. 34(a)(1)(A), a copy of the Auburn B log book
entries between August 18, 2009 and October 16, 2009. Plaintiff is
specifically interested in a copy of “any entry making reference to the
elevator being out of service, prisoners in wheelchairs not being allowed to
leave the unit except in cases of emergency, and any and all references made
to the Plaintiff and his missing of any of his call-outs.”

(2)

Pursuant to Fed. R. Civ. P. 31(a), requests for written depositions of Mr.
Mark Hohn; Officer P. Gooch; Acting Warden Patricia Barnhart; Claire G.
June, RT; and Officer L. Delosh. The following five questions were posed
to Defendant Barnhart:
Did you instruct housing unit staff not to allow Plaintiff
Jones #162751 to leave his housing unit for his health
care call-outs[?]
Did you attend the meeting with TCF health care to make
alternate plans to provide health care to handicap[ped]
prisoners in Auburn unit?

15

Were you aware that Plaintiff Jones missed two
consecutive weeks with regards to his health care lab
draw call-outs?
On October 16, 2009 were you present when other
inmates had to pull Plaintiff Jones up the stairs so that he
could be moved to Cord unit?
Did you order Officer Gooch to have an inmate pull
Plaintiff Jones up the stairs on October 16, 2009?
See DE 72 at 1-3.
Answers to these questions would assist Plaintiff in rebutting Barnhart’s
claim that “Jones has not shown that Barnhart did anything that was objectively
unreasonable[.]” DE 70 at 21. To be sure, Plaintiff does have the benefit of
Defendant Barnhart’s March 17, 2014 affidavit (DE 70-6),5 which is attached to
the pending motion for summary judgment (DE 70). However, the five questions
posed to Barnhart are not directly answered by her March 17, 2014 affidavit. See
DE 70-6 at 3 ¶¶ 2-3.6 In addition, Plaintiff attested - both on June 9, 2014 and on

5

Barnhart’s March 17, 2014 affidavit identifies her as the Warden at TCF in
Coldwater, Michigan during the times relevant to this case. DE 70-6 at 2 ¶ 2. TCF
is located in Lapeer, Michigan. The affidavit later states that she acted in her
capacity as the Warden at Florence Crane Correctional Facility, otherwise known
as ACF. DE 70-6 at 3 ¶ 4. ACF is located in Coldwater, Michigan.
6
“I do not recall Plaintiff ever approaching me and complaining about a
medical condition or claim that he had missed health care call-outs because of the
broken elevator in his unit[,]” and “As warden, I was not directly involved in the
health care of prisoners. I had nothing to do with the medical care provided to
Plaintiff.” DE 70-6 at 3 ¶¶ 2-3.
16

January 14, 2015 - that he spoke with Barnhart on two (2) occasions - on or about
October 6, 2009 and October 16, 2009 (see DE 79 at 24 ¶ 6, DE 87 at 18 ¶ 6); that
Barnhart instructed staff not to allow Plaintiff to leave his unit (DE 79 at 24 ¶ 7,
DE 87 at 19 ¶ 7); and that he missed four call-outs - September 4, 2009, September
16, 2009, October 1, 2009 and October 5, 2009 (DE 79 at 25 ¶ 8, DE 87 at 19 ¶ 8).
Still, the foregoing five questions are designed to determine whether Barnhart
instructed or ordered prison staff to do certain things and to test Barnhart’s
knowledge about Plaintiff’s health care or unit assignment. Answers to these
requests arguably relate to the objective reasonableness of Barnhart’s actions.7
This may also be said of the document request, considering the above description
of the Auburn B log book entries in which Plaintiff is specifically interested.
Also, resolution of the issue of qualified immunity may involve a mixed
question of law and fact. “The protection of qualified immunity applies regardless
of whether the government official's error is ‘a mistake of law, a mistake of fact, or

7

Moreover, answers to these questions might assist Plaintiff in rebutting
Barnhart’s claim that her actions did not amount to Eighth Amendment deliberate
indifference. DE 70 at 12. For example, within her Eighth Amendment analysis
(DE 70 at 12-18), Barnhart argues that plaintiff “never complained to any of the
former defendants or Barnhart about a medical condition[,]” “never complained to
any of the defendants about a toothache[,]” and “never brought either of his alleged
medical issues to the attention of any of the defendants, let alone Barnhart, . . . nor
does he proffer any evidence that Barnhart ignored requests for medical
treatment.” DE 70 at 15, 16, & 17.
17

a mistake based on mixed questions of law and fact.’” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)
(Kennedy, J., dissenting)).

Furthermore, “a district court's denial of qualified

immunity [is] a mixed question of law and fact[.]” Nelson v. Riddle, 217 F.App’x
456, 460 (6th Cir. 2007).

See also Flint ex rel. Flint v. Kentucky Dept. of

Corrections, 270 F.3d 340, 347 (6th Cir. 2001) (“The Defendants in this case have
accepted the Plaintiff's facts as true for the present appeal, presenting this Court
with a mixed question of law and fact as to whether the Defendants are entitled to
qualified immunity as a defense to the Plaintiff's cruel and unusual punishment
claim.”).
In this case, a disabled prisoner made a simple discovery request, aimed at
demonstrating the conditions of his confinement and the knowledge and
involvement of his warden with respect to those conditions. It seems patently
unfair to deny Plaintiff the opportunity to obtain the evidence he needs to respond
to Defendant Barnhart’s instant dispositive motion, and the Court is not inclined to
countenance that unfairness. Inequity is especially manifest here, where: (1) the
January 25, 2014 discovery requests at issue, although submitted after Defendant
Barnhart’s December 3, 2013 original motion for summary judgment (DE 63),
were submitted two months before the instant March 25, 2014 summary judgment

18

motion (DE 70); (2) the requests themselves are reasonable and target information
which is directly at issue in the dispositive motion; and, (3) Defendant was under
obligation to have provided the requested information one month before the instant
dispositive motion was filed.8 In sum, the Court concludes that responses and
answers to the above document request and the five questions directed to
Defendant Barnhart will assist Plaintiff in responding to the qualified immunity
argument posed in Defendant Barnhart’s pending motion for summary judgment
(DE 70).
D.

Order
Upon consideration, Plaintiff’s April 9, 2014 motion to compel discovery

(DE 72) is GRANTED IN PART, and Defendant Barnhart’s April 15, 2014
motion to stay discovery (DE 74) is DENIED IN PART as follows:
Within fourteen (14) days of the date of this order, Defendant
Barnhart SHALL serve upon Plaintiff (1) responses to Plaintiff’s
January 25, 2014 Fed. R. Civ. P. 34 discovery request and (2) written
answers to Plaintiff’s five January 25, 2014 Fed. R. Civ. P. 31
discovery requests directed to Barnhart.
The Court construes Plaintiff’s five January 25, 2014 Fed. R. Civ. P.
31 discovery requests as interrogatories under Fed. R. Civ. P. 33.
8

To be clear, Defendant Barnhart’s initial, December 3, 2013 motion for
summary judgment (DE 63) was still pending in February 2014, when her answers
to Plaintiff’s January 2014 discovery requests were due. However, as noted above,
Defendant Barnhart did not file a timely motion for protective order. Nor did
Defendant Barnhart then file a motion to stay discovery.
19

Defendant Barnhart SHALL answer them as interrogatories, under
oath.
If Plaintiff seeks discovery from non-parties Mark Hohn, P. Gooch,
Claire G. June and/or L. Delosh, Plaintiff may wish to do so in
accordance with Fed. R. Civ. P. 31 (“Depositions by Written
Questions”) and/or Fed. R. Civ. P. 45 (“Subpoena”). However,
because these individuals are not currently before the Court, the Court
cannot direct the Michigan Department of Attorney General to act on
behalf of these non-parties.
Discovery is stayed in all other respects.
IT IS SO ORDERED.
/s/Anthony P. Patti
ANTHONY P. PATTI
UNITED STATES MAGISTRATE JUDGE
Dated: February 27, 2015

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 27, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Acting Case Manager, in the absence
of Michael Williams

20