Robinson v. Tansel
OPINION and ORDER DENYING without Prejudice 29 Request filed by Michael Robinson-Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-10135
Judge George Caram Steeh
Magistrate Judge Anthony P. Patti
OPINION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MARCH 6, 2017 REQUEST (DE 29)
On January 14, 2016, while incarcerated at the MDOC’s Woodland Center
Correctional Facility (WCC), Michael Robinson filed the instant lawsuit in pro per
against Nicole Tansel, who is described as a WCC activity therapist. (DE 1.)
Plaintiff is proceeding in forma pauperis. (DEs 6, 7.)
Plaintiff was paroled on or about August 2, 2016.1 He currently resides in
See www.michigan.gov/corrections, “Offender Search.
On August 19, 2016, he informed the Court that his address had changed to
Yazoo City, MS. (DE 21.) Thereafter, I entered a report recommending that the
Court deny Defendant’s June 27, 2016 motion for summary judgment. (DEs 17,
This case has been referred to me for pretrial matters. (DE 10.) Currently
before the Court are two matters: (1) Plaintiff’s January 9, 2017 motion for
summary judgment (DE 26), regarding which Defendant has filed a response (DE
27) and Plaintiff has filed a reply (DE 30); and, (2) Plaintiff’s March 6, 2017
request (DE 29), regarding which Defendant has filed a response (DE 31).
Here, the Court will address Plaintiff’s request, construing it as a motion to
compel discovery pursuant to Federal Rule of Civil Procedure 37.
The Federal Rules of Civil Procedure that govern disclosures and discovery
are set forth in Rules 26 through 37. Pursuant to Rule 37, a party may file a
motion to compel a deposition. See, i.e., Fed. R. Civ. P. 37(a)(3)(C), (b)(1),
(d)(1)(A)(i). Also, a party may file a motion to compel production of requested
documents. The Rule provides that “an evasive or incomplete disclosure, answer,
22.) However, the copy of this report mailed to Plaintiff at the Yazoo City, MS
address was returned to the Court as undeliverable. (DE 23.) On October 21,
2016, Judge Steeh entered an order accepting my report and recommendation and
denying Defendant’s motion for summary judgment. (DE 24.) On February 7,
2017, Plaintiff informed the Court that his address changed to 2935 Highway 51,
Canton, MS 39046, which appears to be the address of the Madison County Jail.
(DE 28; http://www.whitepages.com/business/madison-county-jail-canton-ms-2.)
This is consistent with Defendant’s representation that Plaintiff “is now
incarcerated in Mississippi awaiting prosecution and/or trial for crimes committed
in Mississippi.” (DE 31 at 2 ¶ 2.)
or response must be treated as a failure to disclose, answer, or respond.” Fed. R.
Civ. P. 37(a)(4). Generally, any motion to compel filed under Rule 37 “must
include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosures or discovery. . . .” Fed.
R. Civ. P. 37(a)(1).
Plaintiff’s requests are premature.
First, Plaintiff seeks to compel the
deposition of the MDOC official(s) in charge of Defendant Tansel’s records. Even
if Plaintiff does not need leave to take the deposition of a non-party records
custodian, “[t]he deponent’s attendance may be compelled by subpoena under Rule
45.” Fed. Rules Civ. P. 30(a)(1), 31(a)(1). If he seeks to depose a non-party, and
if leave is not required under Rule 30(a)(2) or Rule 31(a)(2), then Plaintiff should
proceed under Fed. R. Civ. P. 45.
Second, Plaintiff seeks the production of documents. Defendant responds
with several objections. (See DE 31 ¶ 3.) Nonetheless, to the extent Plaintiff seeks
the production of documents concerning Defendant Tinsel, it is not clear whether
he has first attempted to obtain such documents from her by service of a request of
production of documents as contemplated by Fed. R. Civ. P. 34(a),(b)(1), after
which Defendant would be required to respond and/or object in accordance with
Fed. R. Civ. P. 34(b)(2).
Plaintiff cannot successfully move for an order
compelling documents from Defendant Tinsel when he did not first seek this
information through Rule 34 and afford Defendant the time allowed for
responding. See Fed. R. Civ. P. 37(a)(3)(B)(iv), Fed. R. Civ. P. 34(b)(2).
If Plaintiff seeks to these documents from non-party MDOC, the MDOC is
not currently before the Court, and the Court cannot direct the Michigan
Department of Attorney General to act on behalf of this non-party. Instead,
Plaintiff has to proceed under Fed. R. Civ. P. 45, which provides in relevant part:
“The clerk must issue a subpoena, signed but otherwise in blank, to a party who
requests it. That party must complete it before service.” Fed. R. Civ. P. 45(a)(3)
(emphasis added). In other words, no motion is required for a subpoena to issue.
Third, Plaintiff does not argue that he needs either the requested deposition
or the requested documents to prosecute a pending motion for summary judgment.
See Fed. R. Civ. P. 56(e). The Court has denied Defendant Tinsel’s previously
filed motion for summary judgment, and briefing on Plaintiff’s motion for
summary judgment has closed. (DEs 17, 24; DEs 26, 27 and 30.) Moreover,
Plaintiff’s reply is dated approximately five days before the instant request.3
Fourth, while Plaintiff’s motion omits express discussion of who should bear
the costs and expenses for his discovery requests, it implies that the costs should
Although filed in reverse order, Plaintiff’s reply is hand-dated February 24, 2017,
filed effective February 28, 2017 but not entered on the docket until March 8,
2017. (DE 30.) Plaintiff’s instant request is hand-dated March 1, 2017, was filed
effective March 6, 2017, and entered on the docket on March 7, 2017. (DE 29.)
not necessarily be borne by him. Defendant Tansel responds that Plaintiff should
bear such costs in accordance with the applicable court rules. (See DE 31 ¶¶ 6-7;
see also DE 31 ¶¶ 4-5.) However, to the extent Plaintiff was expecting someone
else to bear the expense of the deposition or the document requests, he does not
make the argument that the Court or Defendant should do so. See Johnson v.
Hubbard, 698 F.2d 286, 289 (6th Cir. 1983) (“there is no constitutional
requirement to waive costs of transcripts, expert witness fees, and fees to secure
depositions.”) (negative treatment on other grounds).
Finally, Plaintiff requests “an answer to all numbered claims (admit or
deny), stated in [his] complaint.” (DE 29 at 3 ¶ 12.) Defendant responds that she
was not required to do so. (See DE 31 ¶¶ 8-10.) Here, where Plaintiff brought this
42 U.S.C. § 1983 lawsuit while confined at WCC, Defendant Tansel is permitted to
waive the right to reply, and this Court has not required her to do otherwise. See
42 U.S.C. § 1997e(g) (“Waiver of reply”).
Accordingly, Plaintiff’s March 6, 2017 request (DE 29) is DENIED
WITHOUT PREJUDICE as premature. Should Plaintiff refile either his request
to compel a deposition or his request to compel the production of documents, he is
reminded that he must comply with Fed. Rules Civ. P. 26-27 and Fed. R. Civ. P. 45
in doing so.
IT IS SO ORDERED.
Dated: March 28, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 28, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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