Annabel v. Frost et al
Filing
134
OPINION AND ORDER Granting in Part and Denying in Part 73 and 84 Motions to Compel. Signed by Magistrate Judge R. Steven Whalen. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,
Plaintiff,
No. 14-10244
v.
District Judge Arthur J. Tarnow
Magistrate Judge R. Steven Whalen
JACK FROST, ET AL.,
Defendants.
/
OPINION AND ORDER
On January 17, 2014, Plaintiff Robert Annabel, a prison inmate in the custody of
the Michigan Department of Corrections (“MDOC”), filed a pro se civil complaint under
42 U.S.C. § 1983 [Doc. #1], asserting First Amendment retaliation and Due Process
claims against Defendants Campbell, Eaton, Frost, Kindinger, and McConnell. Before the
Court are his motion to compel discovery filed on January 3, 2017 [Doc. #73] and his
motion to compel discovery filed on February 16, 2017 [Doc. #84]. For the reasons and
under the terms discussed below, the motions are GRANTED IN PART AND DENIED
IN PART.
I.
GENERAL PRINCIPLES
In Watrobski v. FCA US, LLC, 2017 WL 4073955, at *1 (E.D. Mich. 2017),
Magistrate Judge Majzoub described the general principles of discovery under
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Fed.R.Civ.P. 26:
“The scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th
Cir. 1998). Parties may obtain discovery on any matter that is not
privileged, is relevant to any party's claim or defense, and is proportional to
the needs of the case. Fed. R. Civ. P. 26(b)(1). ‘Relevant evidence’ is
‘evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.’ Fed. R. Evid. 401.
Information need not be admissible in evidence to be discoverable. Fed. R.
Civ. P. 26(b)(1). But the scope of discovery is not unlimited. ‘District courts
have discretion to limit the scope of discovery where the information sought
is overly broad or would prove unduly burdensome to produce.’ Surles ex
rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007).”
The Court’s discretion is broad in determining the scope of discovery or whether a
“discovery request is too broad and oppressive.” Surles, at 305.
II.
DISCUSSION
The Plaintiff’s various interrogatories, requests to admit (“RTA”) and a document
request, along with each Defendant’s responses, are found as Exhibits to Defendants’
response to each motion. See Doc. #78 (Response to Motion #73] and Doc. #86
(Response to Motion #84). The discovery requests at issue with respect to each
Defendant are set forth and discussed below.
Defendant Campbell
Motion #84
Int. 22–answered.
Int. 23- Plaintiff requests locations of security cameras at the Gus Harrison
Facility. This request is both irrelevant and non-discoverable because of institutional
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security concerns. In general terms, this also runs counter to the proportionality standard
of Rule 26(b).
RTA #8 and #9 ask Defendant to admit to the authenticity of Plaintiff’s exhibits.
Defendant correctly declines to admit or deny because he has no knowledge or
independent ability to verify.
Motion #73
Int. 1 and 4-answered.
Int. 7 and Int. 8 request grievance identifiers for all grievances filed at Gus
Harrison since July, 2010 with a certain rejection code at Step I, and grievances since
July, 2010 that named Defendant. Defendant properly objected to this request as
irrelevant and that the burden of production would outweigh the likely benefit. Defendant
also notes that Step I grievances are only maintained at the institution for three years, and
Step III grievances are only maintained in Lansing for six years. Furthermore, Defendant
states that providing grievance material from other prisoners creates a security concern. I
agree.
Int. #10 and Int. #11 requests the “ratio of rejections” of all grievances filed by
Plaintiff at Gus Harrison for identified time frames. Defendants object as irrelevant and
burdensome. The percentage of rejections of Plaintiff’s other grievances is not relevant to
the question of whether Plaintiff was retaliated against. He undoubtedly has a First
Amendment right to file grievances, but the outcome of grievances unrelated to those at
issue in this case is irrelevant to the question of whether he suffered retaliation by these
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Defendants because of filing grievances, regardless of whether those grievances were
upheld.
Int. #19 asks for all prisoner lawsuits in which Defendant was a named Defendant,
or where he was not a named party, but was alleged to have participated with the named
defendants. As phrased, this is overly broad. However, it is fair game for Plaintiff to
request all prisoner lawsuits where Defendant was alleged to have retaliated against an
inmate in violation of the First Amendment. The motion to compel will be granted as to
that narrowed request, dating to the past five years.
Defendant Eaton
Motion #84
Int. #23 requests the location of security cameras. For the same reasons I upheld
Defendant Campbell’s objection I uphold Eaton’s.
RTA #8 and #9 ask Defendant to admit to the authenticity of Plaintiff’s exhibits.
Defendant correctly declines to admit or deny because he has no knowledge or
independent ability to verify.
RTA #10 asks Defendant to admit to the location of a security camera. Defendant
properly objected. Apart from irrelevance, revealing this information creates a security
concern.
Motion #73
Int. #1 requests specific location information as to inmate McQuitter. However,
according to the OTIS report that Defendants have submitted with their response,
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McQuitter has been discharged.
Int. # 4-answered.
Int. # 7, #8, #10, and #11. See above discussion regarding Defendant Campbell.
These requests are denied.
Int. #19. Defendant will produce information on all prisoner lawsuits for the past
five years where Defendant was alleged to have retaliated against an inmate in violation
of the First Amendment.
Defendant Frost
Motion #84
Int. #14, #15, and #18-answered.
Int. #21 seeks the location of security cameras, information that is not discoverable
for the reasons discussed above.
RTA #8, #9, and #10. These are the identical requests made to Defendant Eaton,
and will be denied for the reasons stated above.
Motion #73
Int. #1 ask the address of inmate McQuitter. Mr. McQuitter has been discharged.
Int. #4, #7, #11,and #12 were answered. If the Defendant does not recall, he does
not recall.
Defendant Kindinger
Motion #84
RTA #8, #9, and #10. The motion is denied as to these requests, for the same
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reasons as discussed above regarding identical requests made to Defendants Eaton and
Frost.
Motion #73
Int. #1 asks for McQuitters address. He has been discharged.
Int. #7 and #8. Defendant says he does not recall. That is a proper answer.
Int. #14 seeks the names of all prisoners at Gus Harrison acting as unit
representatives in Units 4 and 5 since January, 2011. This information is not relevant,
and any possible usefulness is outweighed by the burden of producing this information.
Defendant McConnell
Motion #84
RTA #8, #9, and #10. The motion is denied as to these requests, for the same
reasons as discussed above regarding identical requests made to Defendants Eaton, Frost,
and Kindinger.
Motion #73
Int. #1 requests McQuitter’s address. Mr. McQuitter has been discharged.
Int. #4, #7, and #8. Defendant states that he does not recall. That is a proper
answer.
Requests for Production (all Defendants)
Motion #84
Request #1 seeks video footage from a security camera. Defendants state that no
such footage exists.
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Request #2 seeks information about the disciplinary hearing record of another
inmate. This is irrelevant, and potentially would create a security concern for both the
other inmate and the institution.
Request #3 seeks a prison floor plan, including the location of security cameras.
As discussed above, that information is not discoverable. Defendants provided an
evacuation diagram that is sufficiently responsive to Plaintiff’s request.
Request #5 seeks Disobeying a Direct Order misconduct reports issued to Plaintiff
from November 2009 to April 2014. Defendants and the MDOC state that these reports
were previously provided to Plaintiff when the alleged misconducts occurred. Moreover,
as these are non-Defendant MDOC records, it is questionable whether these individual
Defendants are the correct persons to ask. Nevertheless, Defendants’ counsel has agreed
to provide these documents to Plaintiff at the cost of $.10 per page. If Plaintiff wishes to
have these documents, he will so inform Plaintiff’s counsel, and counsel will obtain and
provide them to Plaintiff at the cost of $.10 per page, which may be paid through
Plaintiff’s prison account.
Request #6 seeks “all documents relating to Plaintiff’s parole hearing process in
2013.” At best, this information is marginally relevant to the retaliation claims in this
case. Moreover, the individual Defendants would not be in a position to obtain this
information. Nevertheless, Plaintiff may obtain these documents from the MDOC at a
cost of $.10 per page, which may be deducted from his prison account. The MDOC may
redact information that would have an adverse impact on the safety and security of the
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MDOC.
III.
CONCLUSION
Plaintiff’s Motion to Compel [Doc. #73] is GRANTED IN PART AND DENIED
IN PART, as follows;
Defendants Campbell and Eaton will provide information regarding all prisoner
lawsuits where the were alleged to have retaliated against an inmate in violation of the
First Amendment, including the title of the case, the Court, the docket number, and
outcome of the case. In all other respects, Motion #73 is DENIED.
Plaintiff’s Motion to Compel [Doc. #84] is GRANTED only to the extent that
Plaintiff may obtain the requested misconduct reports and parole documents under the
terms and at the cost set forth above. In all other respects, Motion #84 is DENIED.
IT IS SO ORDERED.
S/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Date: September 30, 2017
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 30, 2017, by electronic means and/or
ordinary mail.
s/H. Monda in the absence of C. Ciesla
Case Manager
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