Annabel v. Heyns et al

Filing 108

ORDER DENYING Plaintiff's 103 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,
Plaintiff,
v.

Case No. 2:12-cv-13590
District Judge Sean F. Cox
Magistrate Judge Anthony P. Patti

DANIEL HEYNS, et al.,
Defendants.
___________________________________/ 
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY
AND FOR RECONSIDERATION OF PLAINITFF’S PRIOR MOTION TO
COMPEL PRODUCTION AND/OR TO COMPEL SUBPOENA [DE 103]
Plaintiff Robert Annabel is a state prisoner who, at the times relevant to his
action, was incarcerated at the Ionia Maximum Correction Facility in Ionia,
Michigan; the Woodland Correctional Center in Whitmore Lake, Michigan; the
Michigan Reformatory in Ionia, Michigan; the Gus Harrison Correctional Facility
in Adrian, Michigan; and, most recently, the Woodland Correction Facility in
Whitmore Lake, Michigan. (DE 107.) Plaintiff commenced this action on August
14, 2012, by filing a pro se civil rights complaint pursuant to 42 U.S.C. §§ 1983,
1985(3), and Title II of the Americans with Disabilities Act. On March 24, 2014,
the Court entered an Order addressing various discovery motions filed by Plaintiff
(DE 83), including his motion to compel subpoena (DE 77). As is relevant here, the

Court granted in part and denied in part Plaintiff’s motion to compel a subpoena
directed to MDOC Director Daniel Haynes, which sought: (1) the complete
medical and mental health records of Plaintiff; (2) all critical incident reports
involving Plaintiff; (3) video recordings of any forced cell moves; and (4) the
audio recording or a written transcription of the February 15, 2012 panel hearing.
Specifically, the Court granted the motion to compel with respect to either an audio
recording or written transcript of the February 15, 2012 panel hearing, and denied
the motion with respect to the balance of the subpoena.
Thereafter, on April 17, 2014, Plaintiff filed a motion (DE 87) to reconsider
the Court’s ruling regarding discovery issues (DE 83). On November 17, 2014,
this Court denied his motion for reconsideration. (DE 99.) A mere four days later,
the instant motion was filed (DE 103), seeking to compel additional discovery and
requesting, once again, reconsideration of the Court’s March 24, 2014 order (DE
83).
The issues raised in the pending motion are addressed separately below.
A. Motion for Reconsideration of Docket Entry # 83
The matter is before the Court on Plaintiff’s second motion for
reconsideration of its March 24, 2014 order.1 A motion for reconsideration must

1
  For the second time, with

respect to the same order, Plaintiff’s motion is styled as
one for relief from judgment under Fed. R. Civ. P. 60(b). However, and as
explained before, “by its own terms, Rule 60(b) is limited to relief from a ‘final
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be filed within 14 days after entry of the judgment or order for which
reconsideration is being sought. E.D. Mich. LR 7.1(h)(1). Here, the Court’s Order
was entered over a year ago. The motion is untimely and is DENIED on that and
other bases, as discussed below.
Moreover, a motion for reconsideration will generally not be granted where
the motion
merely present[s] the same issues ruled upon by the court, either
expressly or by reasonable implication. The movant must not only
demonstrate a palpable defect by which the court and the parties . . .
have been misled but also show that correcting the defect will result in
a different disposition of the case.
E.D. Mich. LR 7.1(h)(3). A “palpable defect” is “a defect that is obvious, clear,
unmistakable, manifest, or plain.” United States v. Cican, 156 F. Supp. 2d 661, 668
(E.D. Mich. Jul. 24, 2001) (Gadola, J.); accord Ososki v. St. Paul Surplus Lines
Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. Sept. 10, 2001) (Lawson, J.). Here,
Plaintiff has pointed to no such palpable defect. In fact, other than mentioning it in
the title of this motion and on the cover page, he provides no explanation as to why
reconsideration would now be appropriate, and does not identify what he claims to

judgment or order.’” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir.
2014) (internal quotation omitted); see also Penn West Assocs., Inc. v. Cohen, 371
F.3d 118, 125 (3d Cir. 2004). Because a discovery order is not a final judgment or
order, Rule 60 is inapplicable, and Plaintiff’s motion must be construed as a
motion for reconsideration. See Keys v. Carroll, No. 3:10-CV-1570, 2012 WL
1191620, at *1 (M.D. Pa. Apr. 10, 2012); U.S. Fidelty & Guar. Co. v. Braspetro
Oil Servs. Co., No. 97 Civ. 6124, 2001 WL 79899, at *1 n.2 (S.D.N.Y. Jan. 30,
2001).
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have been in error. While he makes mention of an address change and an alleged
failure to receive certain documents and orders with respect to prior motions to
dismiss and/or to amend pleadings, the fact that he was able to file another motion
for reconsideration back in April of last year, makes it clear that he did indeed
receive the particular discovery order in question. Moreover, it is Plaintiff’s
responsibility to notify the Court of any change in address. E.D. Mich. LR 11.2;
see also Sango v. Johnson, No. 13-cv-12808, 2013 WL 4614257, at *1 (E.D. Mich.
Aug. 29, 2013) (dismissing a complaint for the plaintiff’s failure to notify the
Court of an address change). Furthermore, he did not take issue with the service of
the March 24, 2014 order in his original motion for reconsideration. (DE 87.)
B. Motion to Compel Discovery
1. The Discovery Deadline
Preliminarily, the Court notes – as questioned in passing in Defendant’s
response brief (DE 104 at 2) – that the discovery deadline in this case passed on
December 12, 2013 (DE 44). This alone could have warranted a denial of this
motion, since Defendant might have simply objected to all of the requests, in lieu
of answering any of them. Nevertheless, in an apparent spirit of cooperation – and
seemingly recognizing that the Court’s grant of leave to amend to add new claims
against Dr. Dinsa made it reasonable for Plaintiff to seek additional discovery –
Defendant chose not to make an issue of the expired discovery deadline, and
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served responses. Plaintiff claims that he could not have known that this discovery
was needed “on [his] single remaining claim” until after the Court of Appeals had
decided his appeal, i.e., “prior to it being identified to him on August 7, 2014.”
(DE 103 at 2.) However, this argument is less than completely convincing, as
some or all of the issues addressed in this discovery appear to have been present
long before that point, and in fact were the subject of his prior motion practice.
(DE 50, 63, 77 & 83.) This is made even more obvious by the fact that he links the
current motion to his previously attempted discovery efforts by including within it
a motion for reconsideration of this Court’s prior discovery order. Notwithstanding
the fact that the discovery period has expired, the parties’ mutual, implied
willingness to engage in ongoing discovery warrants this Court’s scrutiny of the
discovery at issue.
2. Defendant’s Timely Service of Discovery Responses
Plaintiff claims to have served Defendant Surjit Dinsa, M.D., with his Third
Set of Interrogatories and Second Request for Admissions on August 14, 2014,
making them due on September 15, 2014. He attaches a certificate of service with
respect to those discovery requests as part of his exhibits to this motion (Pg ID
1429). He attaches a second certificate of service, indicating an additional mailing
of the discovery requests on October 30, 2014 (Pg ID 1428). Defendant Dinsa
claims that he only received these discovery requests after the second purported
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mailing, i.e. sometime after October 30, 2014, and that he provided timely
responses on November 21, 2014, as supported by his own certificate of service
(Pg ID 1440-1441). He further supports his rendition of these facts with the
affidavit of his counsel, which verifies his response to this motion (Pg ID 14381439). He therefore claims that the instant motion, which was filed on November
21, 2014, is moot, because the answers to both sets of discovery requests were
timely served. Plaintiff does implicitly acknowledge that discovery responses were
received in a timely fashion if October 30, 2014 is viewed as the operative service
date, since his reply brief (DE 105) re-focuses his motion onto the issue of the
adequacy of certain, specific discovery responses, rather than the timeliness of the
combined response, without conceding that anything went awry with his August
2014 service attempt.
Although the Court is not in the position to definitively state whether
Plaintiff did in fact place his discovery requests in the mail on August 14, 2014 –
recognizing that as an inmate, Plaintiff must necessarily rely on others to
accomplish this task – Defendant’s supporting affidavit and the timing of his
response do lend credibility and suggest that he did not in fact receive the
discovery requests with which Plaintiff intended to serve him until they were resent in October 2014. This conclusion is further bolstered by the fact that
Defendant served his responses well within the time-frame for doing so after the
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requests were served the second time. Given his scrupulosity in serving timely
responses to the October 30th set of requests, it seems unlikely that he would have
ignored or otherwise “sat on” the August 14th set, had he received them. The fact
that Plaintiff thought it necessary to send the requests a second time indicates that
he was at least aware of the possibility that the August 14th set had not been
received. This is not to suggest in any way that Plaintiff does not truly believe that
he in fact sent the requests back in August, nor does the Court suggest that their
failure to be placed in the mail was due to any fault of his own.2 In light of all this,
to the extent that Plaintiff takes the position that the responses were not timely with
respect to any of the answers, or with respect to an August 2014 service date, the
motion is DENIED AS MOOT, the Court finding that timely answers were
supplied, or alternatively, that they have been supplied since the time that this
motion was filed.
3. The Adequacy of Specific Discovery Responses
As alluded to earlier, Plaintiff’s reply brief narrows the focus of this motion
to the adequacy of particular discovery responses, specifically Defendant’s
answers to interrogatory Nos. 15, 17 and 18. (DE 105 at 3.) The Court will,

2

 Plaintiff

represents that he “still has the August 14, 2014, [sic] addressed to legal
mail receipt to disprove” Defendant’s claim that the earlier set of discovery
requests were [not] received (DE 105 at 1); however, this receipt has not been
provided to the Court, and so cannot be considered.
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therefore, consider the issue of whether these three interrogatory answers are
adequate.
Each of the interrogatories in question ask Dr. Dinsa if certain entries or
information is contained or reflected in Plaintiff’s MDOC medical file. (See Pg ID
1425- 1426.) In response to each of these requests, Defendant objected, stating
that the interrogatory forces Dr. Dinsa “to read through Plaintiff’s medical records
and provide information or characterizations regarding their contents [even though]
[s]uch records are equally available to Plaintiff.” (DE 106-1 at 3.) Defendant,
therefore, objected on the basis of the requests being unduly burdensome, inter
alia. (DE 105 at 2.) The Court has reviewed these objections and finds them to be
reasonable and sustainable. This should have already been obvious to Plaintiff, in
light of this Court’s prior discovery ruling, in which it specifically noted the
following:
The documents are records maintained by the MDOC. Defendant
Dinsa is not an officer or employee of the MDOC, and has no legal
right to exercise control over the MDOC or demand that it provide him
with its records. To be sure, defendant Dinsa could seek to obtain these
documents and recordings from the MDOC through a subpoena, but he
has no obligation to do so under Rule 34. Rather, his duty under Rule
34 is only “to seek that information reasonably available to him from
his employees, agents, or others subject to his control.” Gray v.
Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992). Defendant Dinsa is
not obligated to fund the costs of plaintiff’s discovery. See Smith v.
Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003). Pursuant to MDOC
regulations, plaintiff may obtain a copy of his own prison medical
records, see MDOC POLICY DIRECTIVE 03.04.108, ¶ S (Jan. 17,
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2011), and plaintiff has a right to inspect and obtain copies of all his
medical records under federal law, see 45 C.F.R. § 164.524.
(DE 83 at 3-4.)
Defendant is correct that he is not required to comb through medical records
which are under the control of another person or entity in order to answer
Plaintiff’s questions. The records speak for themselves. Plaintiff has previously
been invited to obtain or inspect them through other means, as he has every right to
do. But Dr. Dinsa is not required to do this for him. To the extent that this motion
seeks to compel new answers to the interrogatory Nos. 15, 17 and/or 18, or to
strike Defendant’s objections thereto, the motion is DENIED and Defendant
Dinsa’s objections are SUSTAINED.
C. Sanction Request and the Amended Complaint
Plaintiff also seeks sanctions against Dr. Dinsa, claiming that the affidavit
filed in support of his response to this motion contained an “undeniably perjured
statement” where it stated that Plaintiff has yet to file an amended complaint. (DE
105 at 1.) The Court finds no basis for sanctions with respect to any aspect of
Defendant’s response, all of which appears to have been made in good faith and
with complete accuracy. The fact of the matter is that Plaintiff has failed to file his
amended complaint, although it is understandable why he may be confused on this
point, and his raising the issue affords the Court the opportunity to explain it
further.
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On September 25, 2013, Plaintiff filed a motion for leave to amend his
complaint. (DE 47.) That same day, he also filed a document titled “amended
complaint,” which was assigned docket entry no. 48. The Court granted Plaintiff’s
motion to amend, in part, on March 24, 2014. (DE 82.) In its order, the Court
referred to the item identified as DE 48 as Plaintiff’s “proposed complaint,” which
in fact it was and still is. (DE 82 at 1, 5 & 6.) It is entirely understandable that
Plaintiff may have mistakenly believed that his “proposed amended complaint”
would suffice as his actual amended complaint, a misconception which is perhaps
not uncommon among non-lawyers, and perhaps exacerbated by this Court’s own
casual (albeit not technical) reference to it as an “amended complaint” or simply as
a “complaint” later in that same opinion. (DE 82 at 8.) However, after the deadline
for “free” amendments to pleadings, if any, has passed, a party may not file an
amended pleading without leave of the Court. Fed. R. Civ. P. 15(a)(1). The
scheduling order in this case did not provide a period for filing amended pleadings
without leave. (DE 44.) Therefore, Plaintiff’s filing of an “amended complaint” as
DE 48, is correctly characterized as no more than a “proposed complaint,” and
since Plaintiff did not file a subsequent pleading after being granted leave to do so,
Defendant is technically accurate in stating that no amended complaint has been
filed.

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Furthermore, since the Court only granted Plaintiff’s motion for leave to file
an amended complaint in part, DE 48 would necessarily have to be revised and
filed anew in a form which takes into account and conforms itself to the Court’s
order partially granting leave to amend (R 82) and its report and recommendation
of the same date granting summary judgment to Dr. Dinsa (DE 85), as adopted by
the Court on April 30, 2014 (DE 89). Specifically, in its order partially granting
leave to amend, the court stated that, “the motion is GRANTED with respect to the
claim against defendant Dinsa in ¶2 of the Amended Complaint,” finding that it
“plausibly alleges not only that defendant Dinsa lied at the panel hearing, but also
that Dinsa prescribed the treatment leading to the convening of the panel hearing”
and that Plaintiff’s allegation that “Dinsa also initiated that process by prescribing
forced medication, and actually administered the medication” were not futile and
could be added to the pleadings, as alleged in proposed paragraph 2. (DE 82 at 8.)
Plaintiff, therefore, cannot stick with the version of his complaint which was
proposed in docket entry no. 48.
Accordingly, Plaintiff’s request for sanctions is DENIED. With respect to
the amended complaint, Plaintiff may have until JULY 1, 2015 to file his amended
complaint in conformity with this Court’s prior rulings, as identified above.
Plaintiff is cautioned that any version of the amended complaint which does not
conform to this Court’s prior rulings will be stricken.
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Finally, for the sake of clarity, and in light of the fact that Plaintiff has
already availed himself of the opportunity to obtain additional discovery with
respect to his new allegations against Dr. Dinsa, DISCOVERY IN THIS CASE
IS NOW CLOSED. In the absence of any stipulations or court orders to permit
additional discovery, all further motions to compel discovery will be denied
outright.
IT IS SO ORDERED.

Dated: May 29, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on May 29, 2015, electronically and/or by U.S. Mail.

s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
[phone]

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