Bennett v. MDOC et al

Filing 139

ORDER Denying Plaintiff's Request for Additional Discovery re 135 Order. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARL BENNETT #298713,
Plaintiff,

Case No. 15-cv-14465
Hon. Matthew F. Leitman

v.
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
_________________________________/
ORDER DENYING PLAINTIFF’S REQUEST
FOR ADDITIONAL DISCOVERY (ECF No. 135)
This action is a civil rights suit brought by Plaintiff Carl Bennett, a former
prisoner who was incarcerated in the Michigan Department of Corrections (the
“MDOC”). (See Fourth Am. Compl., ECF No. 121.) On September 26, 2019,
Defendants Isaac Alexis, Quinn LaFleur, and David Wright (collectively, the
“Corizon Defendants”) moved for summary judgment. (See Corizon Defs.’ Mot. for
Summ. J., ECF No. 127.) The same day, the MDOC, Heidi Washington, Joe Barrett,
Shirley Harry, Jeff Woods, Connie Horton, Christine Ausmus, Latoya Caulford,
Judy Crisenberry, Alline Curtis, Marguerite Walker, Sherri Winter, and Lisa
Wurmlinger (collectively, the “MDOC Defendants”) also moved for summary

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judgment. (See MDOC Defs.’ Mot. for Summ. J., ECF No. 129.) The MDOC
Defendants moved for summary judgment on five grounds:
1.

2.

3.

4.
5.

Plaintiff has failed to exhaust his administrative
remedies before filing a complaint under 42 U.S.C.
§ 1983.
The MDOC Defendants are entitled to sovereign
immunity to Plaintiff’s federal constitutional
claims, under 42 U.S.C. § 1983.
Plaintiff’s claim under the Michigan’s Persons with
Disabilities Civil Rights Act, Mich. Comp. Laws
§ 37.1301 fail[s] as a matter of law.
The MDOC Defendants are immune from
Plaintiff’s tort claim.
Plaintiff’s request for prospective relief [is] moot as
he has not been in the custody of MDOC since
March 22, 2017.

(Id. at PageID.1758.)
On January 6, 2020, the Court held a telephonic status conference with the
parties to discuss Plaintiff’s request for additional discovery before responding to
the motions for summary judgment. (See Order, ECF No. 135.) With respect to the
Corizon Defendants’ motion for summary judgment, the Court ordered that the
Corizon Defendants be made available to Plaintiff for a deposition that will be
limited in scope to three topics: the Corizon Defendants’ actual or constructive
notice of Plaintiff’s claims, the factual contentions in the Corizon Defendants’
affidavits in support of their motion, and the legal relationship between the Corizon
Defendants and the MDOC. (See id. at PageID.1883–84.) With respect to the
MDOC Defendants’ motion for summary judgment, the Court allowed Plaintiff to
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file a Rule 56(d) affidavit to request additional discovery that Plaintiff believed was
necessary to respond to the MDOC Defendants’ motion. (See id. at PageID.1884.)
The Court instructed Plaintiff that “[t]he affidavit shall specifically identify the
discovery that Plaintiff believes he needs to complete in order to respond to the
MDOC’s Motion for Summary Judgment (ECF No. 129) and shall explain in detail
why Plaintiff believes such discovery is necessary.” (Id.; emphasis in original.)
On January 13, 2020, Plaintiff filed a Rule 56(d) affidavit. (See Aff., ECF No.
137.) The affidavit was not sworn before a notary public. (See id.). The affidavit in
its entirety provides:
I, Carla Aikens, an officer of the Court, being first duly
sworn according to law, under penalty of perjury, deposes
and says:
1. Pursuant to Federal Rule of Civil Procedure 56(d),
Plaintiff’s counsel is of the opinion that discovery is
needed on the issues as stated in the following
paragraphs to respond to Defendants’ motions for
summary judgment.
2. First, in order to respond to the motion for summary
judgment filed by the individual defendants who
allegedly worked with MDOC as contractors,
ISAAC ALEXIS, M.D., DAVID WRIGHT, D.O.,
and QUINN LAFLEUR, P.A. (collectively, the
“Corizon Defendants”), Plaintiff needs to clarify the
relationship between the Corizon Defendants and
the M.D.O.C.
3. The Corizon Defendants’ motion raises the issue of
constructive notice.
4. Specifically, regarding the issue of notice, Plaintiff
is in need of information from both MDOC and the
Corizon Defendants regarding when – if ever – they

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met and with whom regarding any of the allegations
in Plaintiff’s last Complaint.
5. As this issue may also turn on the employment
relationship between MDOC and the Corizon
Defendants, Plaintiff needs more information
regarding that employment relationship in order to
respond to the Corizon Defendants.
6. Further, your affiant sayeth not.
(Id.)
The MDOC Defendants filed a response to Plaintiff’s affidavit on January 21,
2020. (See Resp., ECF No. 138.) The MDOC Defendants raise three objections to
Plaintiff’s affidavit. First, they argue that the Court should reject the affidavit
“because it does not meet the technical requirements of an affidavit or declaration
under Fed. R. Civ. P. 56(d).” (Id. at PageID.1897.) Second, they argue that the
affidavit “fails to specifically identify what documents [Bennett] wants from the
MDOC Defendants.” (Id. at PageID.1897–98.) Third, they argue that the “discovery
that Bennett seeks is legally irrelevant.” (Id. at PageID.1898.) The Court agrees with
the MDOC Defendants on all three grounds.
First, the affidavit is technically deficient. A request for discovery under Rule
56(d) must be supported by a “proper” affidavit. Sandusky Wellness Ctr., LLC v.
Medco Health Sols., Inc., 788 F.3d 218, 226 (6th Cir. 2015). If an affidavit “was not
sworn to before a notary public,” the movant’s Rule 56(d) request is “improper,”
“[a]nd without having filed a proper affidavit . . . the district court [does] not abuse
its discretion by denying discovery.” Id. Plaintiff’s affidavit was not sworn before
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a notary public, and on this ground alone the Court could deny Plaintiff’s requested
discovery.
Second, the affidavit is “too vague.” Id. A Rule 56(d) affidavit “must describe
exactly how [the movant] expects those materials would help [it] in opposing
summary judgment.” Id. (quotation omitted). The Court instructed Plaintiff to
“specifically identify the discovery” requested and “explain in detail why Plaintiff
believes such discovery is necessary.” (Order, ECF No. 135.) But Plaintiff did not
do so.

Instead, Plaintiff filed an affidavit that does not identify the specific

information or documents he needs to oppose the MDOC Defendants’ motion. (See
Aff., ECF No. 137.) The vagueness of Plaintiff’s unsworn affidavit further supports
denying Plaintiff his requested discovery.
Third, Plaintiff’s affidavit is irrelevant to the MDOC Defendants’ motion.
The affidavit mostly focuses on information that Plaintiff believes he needs to
respond to the Corizon Defendants’ motion, not the MDOC Defendants’ motion.
(See id.) But, as described above, the Court has already allowed Plaintiff to pursue
further discovery into the issues that Plaintiff identifies in the affidavit – the Corizon
Defendants’ notice and the relationship between the Corizon Defendants and the
MDOC – through depositions of the Corizon Defendants. And, most importantly,
Plaintiff’s requested discovery is irrelevant to the five arguments that the MDOC
Defendants made in their summary judgment motion: exhaustion, sovereign

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immunity, the Michigan Persons with Disabilities Civil Rights Act, governmental
immunity, and mootness. (See MDOC Defs.’ Mot. for Summ. J., ECF No. 129,
PageID.1758.) The information requested in Plaintiff’s affidavit does not appear
relevant to these five grounds, and the affidavit does not specifically describe how
the information could be used to oppose any of the MDOC Defendants’ arguments.
Accordingly, for all the reasons explained above, IT IS HEREBY
ORDERED that Plaintiff’s Request for Additional Discovery (ECF No. 135) is
DENIED.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 23, 2020
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 23, 2020, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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