Hoosier v. Liu et al

Filing 67

ORDER GRANTING Defendants' 50 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff
v.

Case No. 2:16-cv-10688
District Judge Denise Page Hood
Magistrate Judge Anthony P.
Patti

WENDY LIU, KAREN RHODES,
WILLIAM BORGERDING,
RENYU XUE, BADAWI
ABDELLATIF, KIM FARRIS,
LPN SEARS,
Defendants.
___________________________________/
ORDER GRANTING DEFENDANTS WENDY LIU, N.P., BADAWI
ABDELLATIF, M.D., KIM FARRIS, P.A., AND KAREN RHODES, D.O.’S
UNOPPOSED MOTION TO COMPEL DISCOVERY FROM PLAINTIFF
(DE 50)
This matter before is the Court for consideration of Defendants Wendy Liu,
N.P., Badawi Abdellatif, M.D., Kim Farris, P.A., and Karen Rhodes, D.O.’s
motion to compel discovery from Plaintiff. (DE 50.) Defendants filed their
motion to compel discovery from Plaintiff on April 17, 2017 (DE 50), and filed a
supplement to their motion to compel on June 16, 2017, in which they narrowed
the issues in dispute. (DE 55.) To date, Plaintiff has not filed a response to the
motion or supplement. For the reasons that follow, Defendant’s motion is
GRANTED.

A.

Background
Plaintiff, Dwayne Hoosier, a state prisoner who is proceeding pro se, brings

this lawsuit under 42 U.S.C. § 1983, alleging claims of deliberate indifference to
his medical needs, in violation of the Eighth Amendment, as well as claims based
on the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and the
Federal Tort Claims Act. (DE 1.) He names eleven Defendants, all of whom are
medical professionals involved in his treatment for ulcerative colitis and
Raynaud’s disease.1
In the instant motion, Defendants assert that they served their First Set of
Interrogatories and Second Request for Production of Documents on Plaintiff on
March 7, 2017. When Plaintiff did not respond to these discovery requests,
Defendants filed the instant motion to compel on April 17, 2017. (DE 50.) The
Court entered an order requiring Plaintiff to respond to Defendants’ motion to
compel by May 19, 2017. (DE 52.) Plaintiff did not file a response to Defendants’
motion to compel, but, according to Defendants, Plaintiff did serve responses to
Defendants’ interrogatories and requests for production on Defendants on May 19,
2017. On June 16, 2017, Defendants filed a “supplement” to their motion to

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On February 15, 2017, the Court entered an Order accepting my January 23, 2017
Report and Recommendation, and dismissing Plaintiff’s claims against Defendants
Shi-Yu Tan, Rickey Coleman, Steven Bergman and Vicki Carlson, and some of
Plaintiff’s claims against Defendant Wendy Liu, for failure to properly exhaust
administrative remedies, but denying Defendant Renyu Xue’s motion for summary
judgment. (DE 42, adopting DE 40.)
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compel, asserting that Plaintiff’s May 19, 2017 discovery responses are
“incomplete and insufficient,” and that they were filing the supplement to “update
the Court and to narrow the issues in dispute.” (DE 55.) In their supplement,
Defendants seek an order: (1) compelling Plaintiff to provide full and complete
responses to Defendants’ First Set of Interrogatories and Second Request for
Production of Documents, including access to his Medicare, Medicaid, and
disability records by signing the authorizations within ten (10) days of an Order
granting the present motion; and, (2) to show cause as to why his claims against
Defendants should not be dismissed. (Id. at 8) To date, Plaintiff has not filed a
response to Defendants’ motion to compel or the supplement.2
B.

Standard
The Court has broad discretion to determine the scope of discovery. Bush v.

Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998).

The scope of discovery,

which permits a party to obtain “any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the

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Defendants subsequently filed a motion to dismiss Plaintiff’s claims against them
pursuant to Fed. R. Civ. P. 41(b), for Plaintiff’s failure to file a response to
Defendants’ motion to compel and Plaintiff’s continued refusal to answer
Defendants’ discovery requests. (DE 57.) That motion has been fully briefed and
will be addressed under separate cover.
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importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit,” is always subject
to being “limited by court order[,]” and thus, within the sound discretion of the
court. Fed. R. Civ. P. 26(b)(1). Further, discovery is more liberal than even the
trial setting, as Rule 26(b) allows information that “need not be admissible in
evidence” to be discoverable. Id. However, the court must also balance the “right
to discovery with the need to prevent ‘fishing expeditions.’” Conti v. Am. Axle &
Mfg., Inc., 326 F. App’x 900, 907 (6th Cir. 2009) (quoting Bush, 161 F.3d at 367).
Rule 37(a) allows a party to move for an order compelling “an answer, designation,
production, or inspection” if the opposing party has failed to provide a discovery
response. Fed. R. Civ. P. 37(a)(3).
C.

Analysis
As a preliminary matter, Plaintiff has failed to file a response opposing

Defendants’ motion, and his time to do so has passed. Pursuant to the Local Rules,
“[a] respondent opposing a motion must file a response.” E.D. Mich. LR 7.1(c)(1).
The 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). Pursuant to the Court’s April 19, 2017
Order, Plaintiff’s response was due by May 19, 2017. (DE 52.) Plaintiff did not
file a response to Defendants’ motion to compel. “[I]f a plaintiff fails to respond
or otherwise oppose a defendant’s motion, then the district court may deem the
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plaintiff to have waived opposition to the motion.” Humphrey v. United States
Attorney General’s Office, 279 F. App’x 328, 331 (6th Cir. 2008); see also
Sabharwal v. Chase Mortg. Bank, No. 11-13138, 2012 WL 1050021, at *2 (E.D.
Mich. Mar. 7, 2012) report and recommendation adopted by 2012 WL 1049909
(E.D. Mich. Mar. 28, 2012) (applying Humphrey to a pro se plaintiff).
Accordingly, Defendants’ motion to compel can and will be construed as
unopposed. Nevertheless, the Court recognizes that Plaintiff apparently did serve
some, albeit limited, responsive discovery, seemingly prompted by this motion.
In their “supplement” filed on June 16, 2017, Defendants “narrow[ed] the
issues in dispute” after receiving Plaintiff’s discovery responses. Specifically,
Defendants now complain that Plaintiff failed to fully answer Interrogatory Nos. 14, 6, and 8-10, and that he continues to refuse to respond to Defendants’ requests to
produce: (1) a release for his state and federal tax returns from 2003 through 2013;
(2) authorization releases for Medicare and/or Medicaid records; and (3) records
related to any of Plaintiff’s disability claims, as requested in Defendants’ Request
for Production Nos. 1-2, 12, and 14-16. (DE 55.)3

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Although Defendants state that “Plaintiff refused to fully answer Defendants’
first, second, third, fourth, and fifth interrogatories,” (DE 55 at 2 (emphasis
added)), Defendants otherwise do not address Plaintiff’s response to Interrogatory
No. 5 in their supplemental brief. Accordingly, the Court will consider any
objection to that discovery response to be waived for purposes of this motion. See
Straws v. Berghuis, No. 2:08 CV 10481, 2010 WL 420018, at *1 (E.D. Mich. Jan.
28, 2010) (“Generally, issues which are not adequately developed in a brief are
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1. Plaintiff’s Responses to Defendants’ Interrogatories
Defendants complain that Plaintiff failed to fully answer Interrogatory Nos.
1-4, 6, and 8-10. (DE 55.) Interrogatory Nos. 1-4 and 6 seek information
regarding Plaintiff’s non-MDOC medical providers, his employment history,
educational history, and psychiatric history, and the identity of all individuals
dependent on Plaintiff for financial support. (DE 50-1.) Plaintiff responded that
Defendants have his medical and prison records, and generally objected that these
interrogatories are “not in any way relevant to this civil action” and that they
“violat[e] plaintiff’s fifth and eighth amendment [rights.]” (DE 55-1 at 2-3.)
Defendants explain that these interrogatories seek information that is relevant to
Plaintiff’s past medical history and to calculating his alleged damages. The Court
agrees. Specifically, Plaintiff alleges in his Complaint claims of deliberate
indifference to his medical conditions, leading to a diagnosis of ulcerative colitis
and Raynaud’s Syndrome, and complications from medications prescribed to him.
(DE 1.) He seeks compensatory and punitive damages, including damages for
emotional pain and suffering, as well as injunctive relief. (Id.) While Defendants
acknowledge that they have Plaintiff’s MDOC medical records, information
regarding Plaintiff’s non-MDOC medical care, if any, from 2014 to present, is
relevant to Plaintiff’s claim that Defendants failed to properly treat him. And

deemed waived.”) (citing Rojem v. Gibson, 245 F.3d 1130, 1141 n.8 (10th Cir.
2001)).
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information regarding Plaintiff’s prior psychiatric hospitalizations, employment
and educational histories, and regarding Plaintiff’s financial dependents, are
relevant to Plaintiff’s Eighth Amendment claims, his calculation of damages, and
Defendants’ defenses thereto, and such requests are proportional to the needs of
this case. Moreover, Plaintiff fails to state with any particularity how providing the
requested information violates his Fifth or Eighth Amendment rights or otherwise
subjects him to criminal liability.
Interrogatory Nos. 7-10 ask Plaintiff to state exactly what each individual
Defendant did that violated Plaintiff’s § 1983 rights. (DE 50-1.) Defendants assert
Plaintiff’s responses to Interrogatory Nos. 8-10 remain incomplete. (DE 57 at 5);
see Fed. R. Civ. P. 37(a)(4) (“an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond.”). In his
responses, Plaintiff simply refers Defendants to his 174-paragraph Complaint and
then goes on to state that he is being “denied the discovery of medical records
needed to provide the requested information” and that he “is expected to go to trial
and all revele [sic] information will be given at that time.” (DE 55-1 at 6-7.) This
latter statement is unacceptable, and thwarts the purpose and goals of pretrial
discovery. The Court finds that Interrogatory Nos. 8-10 are proper interrogatories,
asking Plaintiff to provide the specific nature of his claims against the individual
Defendants, that these interrogatories generally meet the broad standard of
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relevance outlined in Rule 26, and that Plaintiff’s responses are wholly insufficient.
Further, as Defendants point out, the Sixth Circuit has soundly rejected Plaintiff’s
implicit argument that asking Plaintiff to pay for the reasonable copying costs for
discovery is improper. See Smith v. Yarrow, 78 F. App’x 529, 544 (6th Cir. 2003)
(“A prisoner plaintiff proceeding in forma pauperis may seek a waiver of certain
pretrial filing fees, but there is no constitutional or statutory requirement that the
government or Defendant pay for an indigent prisoner’s discovery efforts.”)
(citations omitted).
Accordingly, Plaintiff is ordered to supplement his responses to
Interrogatory Nos. 1-4, 6 and 8-10. Plaintiff’s supplemental responses must be
served by November 27, 2017.
2. Plaintiff’s Responses to Defendants’ Requests for Documents
Defendants also assert that Plaintiff has provided incomplete responses to
Defendants’ Requests for Production. Specifically, Defendants complain that
Plaintiff has refused to sign releases for his state and federal tax returns from 2003
through 2013 (Request No. 2). Defendants also complain that Plaintiff has refused
to execute releases for his Medicare and Medicaid records, as well as releases for
any records related to any disability claims (Request Nos. 1, 12, 14-16).4

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Plaintiff argues that he provided Defendants an executed release for his Medicaid
records, but Defendants dispute receiving this. (DE 55 at 7.) In the interest of
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Defendants assert the documents and information sought are relevant to Plaintiff’s
medical care and the calculation of Plaintiff’s damages. The Court agrees.
Accordingly, Plaintiff is ordered to supplement his responses to Request for
Production Nos. 1-2, 12, and 14-16, and execute and serve the releases provided
by Defendants with their Second Request for Production of Documents by
November 27, 2017.
D.

Conclusion
Defendants are entitled to the discovery sought in their First Set of

Interrogatories and Second Request for Production of Documents in order to
properly respond to the incidents described in Plaintiff’s complaint. Accordingly,
Defendants’ motion to compel is GRANTED. Plaintiff shall supplement his
responses to Interrogatory Nos. 1-4, 6, and 8-10, and Request for Production
Nos. 1-2, 12, and 14-16, and serve his responses, including executing and
returning the requested authorizations, ON OR BEFORE NOVEMBER 27, 2017.
Finally, although the Court declines to impose sanctions or attorney’s fees at
this time, Plaintiff is cautioned that failure to comply with this order will likely
result in a Report and Recommendation recommending that the Court impose
sanctions, up to and including dismissal, pursuant to Fed. R. Civ. P. 37(b).

facilitating the discovery in this matter, the Court will order that Plaintiff execute
and return the Medicaid release form along with the other releases ordered here.
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IT IS SO ORDERED.
Dated: November 6, 2017

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 November 6, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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