Roden v. Floyd et al
ORDER granting in part and denying in part Plaintiff's 30 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-11208
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti
MICHELLE FLOYD, et al.,
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL (DE 30)
This matter is before the Court for consideration of Plaintiff’s motion to
compel Defendants’ answers to interrogatories and production of documents (DE
30) and Defendants’ response in opposition (DE 32). For the reasons that follow,
Plaintiff’s motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff is a state prisoner proceeding without the assistance of counsel. He
filed his complaint and application to proceed in forma pauperis in the Western
District of Michigan on April 4, 2016. The Court granted his application on the
same day and transferred the case to this District. Plaintiff filed his complaint
under to 42 U.S.C. § 1983, bringing claims of First and Fourteenth Amendment
retaliation, based on his allegedly improper removal from the Jackson College
program at the G. Robert Cotton Correctional Facility.
In the instant motion, Plaintiff asserts that Defendant Floyd has not properly
responded to his discovery requests and Defendant Cady has not responded at all.
As to Defendant Floyd, Plaintiff takes issue with the responses to interrogatories 2,
3, 5, 7, and 8, and sets out the questions at issue and responses in pages 3-5 of his
motion. Plaintiff asks the Court to order Defendants to provide more
comprehensive answers, to produce requested documents free of charge, and to
provide Defendant Richard Cady’s responses to interrogatories and requests for
production. Specifically, he asks that Defendants provide the following
documents, free of charge and prior to their depositions: 1) emails containing his
name from June 1, 2015 to the present; 2) the “Clark 363” form; 3) and the civil
service description for a Deputy Warden.
Defendants oppose the motion. They assert that Plaintiff failed to conduct a
good faith conference pursuant to Eastern District of Michigan Local Rule 37.1
and failed to include a verbatim recitation of the discovery response or a copy of
the actual discovery response, in contravention of Local Rule 37.2. They argue
that Defendant Floyd’s responses were adequate and that Defendant Cady provided
responses. (DE 32.) Finally, they assert that Plaintiff is required to pay for his
own discovery requests.
On April 7, 2017, Plaintiff filed a motion asking the Court to appoint an
attorney in this civil case.
The Court denied the motion without
prejudice on April 14, 2017, but noted that Plaintiff frequently referred to
discovery he had received, including misconduct reports and Defendants’
responses to interrogatories, including those of Defendant Cady. (DE 34 at 14.)
The Court allowed Plaintiff a one-time surreply to Defendants’ motion for
summary judgment, as a result of the evidence he uncovered after Defendants’
motion for summary judgment was filed. Plaintiff timely filed the surreply on
April 28, 2017. (DE 37.)
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
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).
As a preliminary matter, Plaintiff’s request that the Court order Defendant
Cady to provide responses is DENIED AS MOOT. Defendants provided Cady’s
answers to Plaintiff’s interrogatories in their response. (DE 32-4.)
Plaintiff’s Document Requests
As to Plaintiff’s document requests, his motion is GRANTED IN PART
AND DENIED IN PART. At issue is Defendants’ response that Plaintiff may
have the discovery he requested upon paying the State of Michigan for the copies.
Specifically, Defendant Floyd states the following in her response to interrogatory
number 5: “Plaintiff may receive a copy of the 363 form, consisting of 1 page, as
soon as Plaintiff sends defense counsel a certified check or money order made
payable to the State of Michigan in the amount of $0.25.” (DE 32-2 at ¶ 5.)
(emphasis added). Likewise, in her response to interrogatory number 8, she states
that Plaintiff may receive a copy of the “Civil Service Position Description for a
Deputy Warden, consisting of 7 pages, as soon as Plaintiff sends defense counsel a
certified check or money order made payable to the State of Michigan in the
amount of $1.75.” (DE 32-3 at ¶ 8.) Finally, Defendant Floyd provides the same
response to interrogatory number 9, noting that Plaintiff can receive the one-page
“363 form” upon the payment of $0.25 to the State of Michigan. (Id. at ¶ 9.) All
told, Defendants request $2.00 from Plaintiff in order to receive the documents he
Defendants correctly point to the Sixth Circuit’s unpublished opinion in
Smith v. Yarrow, 78 F. App’x 529 (6th Cir. 2003) for its holding that 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.” Id. at 544 (DE 32 at
2.) However, Smith relies on the published opinion in Johnson v. Hubbard, 698 F.
2d 286, 289 (6th Cir. 1983), which, in turn, stands for the more limited notion that
“there is no constitutional requirement to waive costs of transcripts, expert witness
fees, and fees to secure depositions.” Johnson, 698 F.2d at 289. Here, Plaintiff is
not asking Defendants to pay for the costs of transcripts, witness fees, or
It is very likely that it cost more for the State of Michigan to file a response to
Plaintiff’s motion to compel than the $2.00 copying costs.
depositions. Instead, he is asking for documents that are under Defendants’ control
as discovery requests.
Under the Federal Rules of Civil Procedure, “the presumption is that the
responding party must bear the expense of complying with discovery requests, but
may invoke the court’s discretion under Rule 26(c) to grant orders protecting him
[or her] from ‘undue burden or expense.’” Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 358 (1978) (quoting Fed. R. Civ. P. 26(c)). The documents Plaintiff
requests total nine pages. (DE 32-3 at ¶ 5 and 32-3 at ¶¶ 8 and 9.) Defendants do
not make an argument that making copies of the documents would create an undue
burden or expense. Nor do they point to anything in the Prisoner Litigation
Reform Act that would require such a burden shifting. In fact, requiring Plaintiff,
who is an indigent prisoner, to pay for the costs of responding to his discovery
requests would actually put him in a worse position than any other litigant in a civil
case. Notwithstanding this ruling, Plaintiff should not believe that he has carte
blanche to request extensive discovery and expect Defendants to pay for it going
Accordingly, Defendants are ORDERED to provide Plaintiff with the
requested materials, summarized in their responses to interrogatories 5 and 8 free
of charge. (DE 32-2 at ¶ 5, DE 32-3 at ¶¶ 8.) In addition, Defendants shall provide
the email referred to in Floyd’s response to interrogatory number 3, if they have
not already done so. As to the “363 form” requested in interrogatory number 9,
Defendants have provided this report as part of their motion for summary
judgment, and therefore need not provide it again. (DE 19-9; see also DE 30 at 6,
“Plaintiff is simply requesting a copy of the 363 that Defendants relied on in
framing their Summary Judgment.”)
Floyd’s Response to Interrogatory No. 2
Finally, Plaintiff asserts that Defendant Floyd has not fully responded to
interrogatory number 2. Defendants argue that while Floyd “has no objection to
answering that question,” Plaintiff’s interrogatory was too “expansive, as it was
[not] limited as to time . . . .” (DE 32 at 2.) Accordingly, using its discretion, the
Court will limit Plaintiff’s interrogatory to the timeframe of 2012 (three years
before the events described in Plaintiff’s complaint began) to the present, and
orders Defendant Floyd to serve a sworn response.
In sum, Plaintiff’s motion is GRANTED IN PART AND DENIED IN
PART. Defendants shall provide the documents described above, as well as the
supplemental response to interrogatory no. 2, WITHIN FOURTEEN DAYS OF
THE DATE OF THIS ORDER.
Having granted in part Plaintiff’s motion and required Defendants to
produce certain discovery, the Court concludes that Plaintiff’s previously filed
Rule 56(d) affidavit is meritorious. (DE 22.) To that end, I will issue a Report and
Recommendation that Defendants’ motion for summary judgment be denied
without prejudice to refiling after they have provided Plaintiff with the required
documents and information.
IT IS SO ORDERED.
Dated: May 31, 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 May 31, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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