Roden v. Floyd et al

Filing 89

ORDER granting in part and denying in part Plaintiff's 80 Motion to Compel. Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN RODEN,
Plaintiff
v.

Case No. 2:16-cv-11208
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

MICHELLE FLOYD,
RICHARD CADY, SHAWN
BREWER, and JAMES ROTH,
Defendants.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL DEFENDANT BREWER
TO PROVIDE DOCUMENTS AND ANSWER INTERROGATORIES AND
ADMISSIONS (DE 80)
This matter is before the Court for consideration of Plaintiff’s motion to
compel Defendant Shawn Brewer to provide documents and answer interrogatories
and requests for admission (DE 80), and Defendant Brewer’s response (DE 85).
For the reasons that follow, Plaintiff’s motion is GRANTED IN PART AND
DENIED IN PART.
I.

Background
Plaintiff Jonathan Roden filed his complaint and application to proceed in

forma pauperis on April 4, 2016 in the Western District of Michigan. (DE 1.) The
Court granted his application and transferred the case to this district. (DE 4.)

Plaintiff brought this lawsuit against Defendants Michelle Floyd (Deputy Warden),
Richard Cady (Resident Unit Manager), and Beverly Haynes-Love (Corrections
Officer), alleging that they transferred him to a more restrictive correctional
facility and removed him from Jackson College classes because of grievances he
filed regarding the education program and treatment of students. (DE 1.) He
asserted a retaliation claim under the First and Fourteenth Amendments to the
United States Constitution and sought compensatory damages. (Id., Count I.)
On March 15, 2018, the Court entered an Opinion and Order, adopting my
Report and Recommendation, and granting in part and denying in part Defendants’
motion for summary judgment. (DEs 52, 57.) Plaintiff’s claims against Defendant
Haynes-Love were dismissed with prejudice, and his First Amendment claims
against Defendants Floyd and Cady are to proceed to trial. (Id.)
On September 5, 2018, the Court granted Plaintiff’s unopposed motion to
amend the complaint and ordered that DE 59 at Page ID 1047-1058 be treated as
Plaintiff’s Amended Complaint. (DE 65.) Plaintiff’s Amended Complaint: (1)
adds two defendants, Shawn Brewer (Warden) and James Roth (Inspector); (2) reasserts the retaliation claim under the First and Fourteenth Amendments against all
Defendants; and (3) adds a second cause of action against all Defendants for
“violation of the United States Constitution Eighth and Fourteenth Amendments
and Michigan common law by civil conspiracy through concerted actions,
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manufacturing a false sexual harassment allegation.” (DE 59.) Plaintiff seeks
damages in the amount of $380,000. (Id.)
II.

Plaintiff’s Motion to Compel
In the instant motion, Plaintiff asserts that Defendant Brewer has not

properly responded to his discovery requests. Plaintiff takes issue with Brewer’s
responses to Interrogatory Nos. 1-3, Request for Admission Nos. 1, 2, 5-11, 13, 14,
20-23, and Request for Production Nos. 4-7. Plaintiff asks the Court to order
Defendant to fully answer the interrogatories and requests for admission, and to
provide the documents requested. (DE 80.)
Defendant Brewer oppose the motion. He asserts that Plaintiff’s
Interrogatory No. 1 seeks information irrelevant to his claims, that he is not in
possession, custody of control of the documents sought in Request for Production
Nos. 5-7, and that Request No. 5 is overly broad and unduly burdensome. He
further argues that he lacks the requisite knowledge to respond to Interrogatory
Nos. 2 and 3 and Request for Admission Nos. 1, 2, 5-11, 13, 14, and 20-23. (DE
85.)
III.

Analysis
A.

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,
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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).
B.

Plaintiff’s Interrogatories

Plaintiff moves to compel Defendant Brewer to provide more complete
answers to Interrogatory Nos. 1, 2 and 3.
Interrogatory No. 1
Interrogatory No. 1 asks:
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Have you been reprimanded by the Michigan Department of
Corrections regarding your job performance or adherence to MDOC
Policies Rules or Operating Procedures in the past six (6) years? If the
answer is yes[,] [w]hen, what were the violations, and how were you
reprimanded each time?
(DE 80 at 28.) Brewer responded: “Defendant objects that this interrogatory is
irrelevant and will not lead to the discovery of admissible evidence.” (Id.) In his
response to Plaintiff’s motion to compel, Brewer states that his “performance and
policy compliance is not at issue in this case and thus not relevant to this lawsuit”
and that Plaintiff does not address his objections in the motion to compel. (DE 85
at 5.) Brewer also argues that his employment records contain Personally
Identifiable Information (PII), protected by Fed. R. Civ. P. 5.2(a).
Although it is true that Plaintiff does not specifically address Brewer’s
objections to Interrogatory No. 1, he does broadly discuss the “purpose of the
requested Interrogatories and Documents,” which he contends is to:
1) Establish that the Telephone Complaint and study hall grievances
were authored by Plaintiff after the Warden falsified operating
procedure when responding [that] more phones were not in the budget;
2) Ascertain Defendants’ position as to the sexual harassment and love
letters[,] [w]ho reported this, who investigated it, who was the subject
of the harassment, where is (are) the letter(s), when did this occur, what
was the disciplinary action; and 3) Illustrate the sexual harassment
narrative and conspiracy through text messages and e-mails between
and amongst Defendants, Grievance Coordinator and Transfer
Coordinator.
(DE 80 at 2-3.)

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These stated “purposes” do not justify discovery seeking previous
reprimands by the MDOC of Brewer relating to his job performance and adherence
to state policies, if any. Plaintiff fails to explain in his motion how the information
sought in this interrogatory is relevant to his claim that Defendants retaliated
against him and transferred him from JCF because of grievances he filed regarding
the education program and treatment of students, or his claim that Brewer was part
of a conspiracy to “manufacture a false sexual harassment allegation” against him.
He has demonstrated little to no need for this information and disclosure implicates
Brewer’s right to privacy and could jeopardize the safety and security of the
institution and Brewer. Accordingly, Plaintiff’s motion to compel with regard to
Interrogatory No. 1 is DENIED.
Interrogatory No. 2
Interrogatory No. 2 asks:
What are the names and job titles of all JCF employees, subcontractors,
teachers, professors, or volunteers that you claim Jonathan Roden was
writing, courting, pursuing, wooing, involved with, communicating
with, or fantasizing about in a sexual or romantic manner. When was
this reported, who reported it and what corrective action was taken?
(DE 80 at 29.) Brewer responded: “I do not recall as this incident allegedly
occurred in 2015.” (Id.)
The Court notes that, in general, it cannot compel a party to provide
information that he or she does not possess any more than it can compel that party
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to produce documents that do not exist or are not in his possession, custody or
control. However, Brewer previously stated in an affidavit filed earlier in this
matter that:
4.
In late July 2015, Roden sent an unauthorized communication to
then Deputy Warden Michelle Floyd, which was brought to my
attention. Due to the inappropriateness of the card, Deputy Warden
Floyd requested that Roden be transferred out of JCF.
5.
I agreed with that request because Roden’s demonstrated
behavior presented a security and safety concern and he could not
remain at JCF.
(DE 44-11 ¶¶ 4-5.) In light of this prior sworn testimony, Brewer is ordered to
supplement or amend his response to Interrogatory No. 2, if necessary, to conform
with his representations in his affidavit. To the extent he is unable to provide the
information requested after a good faith investigation, he must expressly state so
under oath in a verified interrogatory response.
Interrogatory No. 3
Interrogatory No. 3 asks:
In your affidavit DE 44-11 pg ID 730 paragraph 4 you state: “In late
July 2015, Roden sent an unauthorized communication to then Deputy
Warden Michelle Floyd, which was brought to my attention. Due to
the inappropriateness of the card, Deputy Warden Floyd requested that
Roden be transferred out of JCF. I agreed with that request because
Roden’s demonstrated behavior presented a security and safety
concern.” Was Roden issued a misconduct, Notice of Intent, or given
any Due Process for this unauthorized communication? If yes, what?
If no, why not?

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(DE 80 at 29.) Brewer stated in response: “I don’t know. Please refer to the
prisoner file if any disciplinary action occurred.” (Id.)
While a “[l]ack of knowledge or the ability to recollect is, if true, an
acceptable answer” to an interrogatory, Annabel v. Heyns, No. 2:12-cv13590, 2014 WL 1207802, at *1 (E.D. Mich. Mar. 24, 2014), aff’d, 2018
WL 4870866 (6th Cir. Apr. 10, 2018), “[a] party answering interrogatories
has an affirmative duty to furnish any and all information available to that
party.” 7 JAMES WM MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶
33.102[1], [3] (3d ed. 2017) (emphasis added) (“The duty to provide all
information available encompasses the responsibility to provide information
within the party’s control, even if that information is in the possession of a
nonparty.”). Rule 33 grants a party the option of identifying business
records in lieu of answering, but requires the party to “specify[] the records
that must be reviewed, in sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party could[.]” Fed. R.
Civ. P. 33(d).
Brewer is ordered to amend or supplement his response by March 27,
2019 to more specifically identify the records in the “prisoner file” to be
reviewed in response to this interrogatory (i.e., by bates number, or date of
production). Or, if such records have not been produced in this matter, Brewer
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is directed to review the records that are in his possession, custody or control
as a necessary part of the performance of his duties and supplement his
response by March 27, 2019. See Trane Co. v. Klutznick, 87 F.R.D. 473, 476
(W.D. Wis. 1980) (under Rule 33 a party has a “duty to provide all
information available to him … [and] information which is controlled by a
party is available to him”).
C.

Plaintiff’s Document Requests

Plaintiff seeks to compel Brewer to fully respond to Request for Production
Nos. 4-7. He complains generally that Brewer’s discovery responses are
“incomplete, evasive and did not state that Defendant made reasonable efforts to
inform himself prior to responding ‘I don’t know.’” (DE 80 at 7.) He further
claims that “[b]oth Defense Counsel and Defendant Brewer have access to the
requisite emails, J-Pay Messages, discipline records, and/or information to
respond.” (Id. at 9.)
Request No. 4
Request No. 4. States:
Provide any and all emails between July 27, 2015 through September
10, 2015 to or from JCF Grievance Coordinator or Acting Grievance
Coordinator pertaining to Jonathan Roden, #319782, tutor, transfer,
and/or termination.
(DE 80 at 32.) Brewer responded:

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Defendant is currently searching for responsive documents and will
supplement this response if any are found. Copies or any responsive
documents will be provided after receipt of a certified check or money
order payable to the State of Michigan for copying charges at .25 cents
per page.
(Id.) Plaintiff fails to specify how this response, agreeing to search for and
produce responsive documents, is deficient. Accordingly, Plaintiff’s motion to
compel this response is DENIED. However, if Brewer has not already done so, he
must inform Plaintiff by March 27, 2019 if any responsive documents were found,
and if so, inform him of the number of pages to be produced, with specific
instructions for payment. See Smith v. Yarrow, 78 F. App’x 529, 544 (6th Cir.
2003) (“[T]here is no constitutional or statutory requirement that the government
or [d]efendant pay for an indigent prisoner’s discovery efforts.”).
Request No. 5
Request No. 5 states:
Provide any and all e-mails to or from any staff at JCF to or from
MDOC Central Classification between July 27, 2015 and September 1,
2015, pertaining to or related to Roden, 319782, Transfer Hold.
(DE 80 at 33.) Brewer responded:
Defendant objects that this request is overly broad and unduly
burdensome as it requires Defendant to search the emails of all staff
members at JCF. Additionally, Defendant objects as the emails of JCF
staff members are not in the possession, custody or control of
Defendants. Fed. R. Civ. P. 34(a)(1).

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(Id.) The Court agrees that a request for “any and all e-mails to or from any staff at
JCF” is over broad. Plaintiff has made no showing that Brewer, as a warden,
would have possession, custody or control over all emails of JCF staff. However,
Brewer has sufficient possession, custody or control over emails to or from himself
and JCF staff or MDOC Central Classification. Accordingly, the Court will
compel Brewer to search for and produce, if found, by March 27, 2019, all emails
to or from himself (as sender, recipient, or copied (i.e, cc or bcc)), and JCF staff
and/or MDOC Central Classification “pertaining or related to Roden, 319782,
Transfer Hold.”
Request No. 6
Request No. 6 seeks “the love letter you claim Jonathan Roden sent to a
teacher at Jackson College.” (DE 80 at 33.) Brewer responds that he is “not in
possession nor do I have access to this letter.” (Id.) As explained above, a party
cannot be compelled to produce what he does not have. Accordingly, Plaintiff’s
motion to compel a response to Request No. 6 is DENIED.1 To the extent Plaintiff
is challenging the truthfulness of this response, the Court notes that “‘[t]he purpose
of a motion to compel discovery is not to challenge the truthfulness of the response

1

Defendants are forewarned that, if a copy of the “love letter” exists (as described
in Defendant Michelle Floyd’s affidavit (DE 44-9 ¶ 6)), and it is not produced to
Plaintiff before the filing of any motion for summary judgment, or before trial if no
motion for summary judgment is filed, it will not be permitted to be admitted into
evidence.
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but rather to compel a party to answer the interrogatory.’” Annabel, 2014 WL
1207802, at *1 (quoting Stewart v. Capital Newspapers Inc., No. 09-cv-554-slc,
2010 WL 1508289 (W.D. Wis. Apr. 14, 2010)). That is, a motion to compel is not
the correct way for Plaintiff to argue about the factual accuracy of Defendant
Brewer’s responses. See Grant v. Target Corp., No. 2:10-cv-823, 2013 WL
571845, at *9 (S.D. Ohio Feb. 13, 2013).
Request No. 7
Request No. 7 states:
Provide all facility wide [sic] J-Pay messages sent from you to JCF
population concerning more phones being requested, denied and
approved sent between May 1, 2015 and June 7, 2015.
(DE 80 at 33.) Brewer states in response, “I am not in possession nor do I have
access to JPay messages as I am currently assigned to WHV.” (Id.)
Again, Brewer cannot be compelled to produce what he does not have. He
explained that he is no longer the warden at JCF and thus does not have access to
any JPay messages at that facility. The Court notes that JPay was a third party
vendor that provided a process for friends and family to deposit money into
prisoner accounts. https://www.michigan.gov/corrections/0,4551,7-1199741_12798-25072--,00.html. According to the MDOC website, the MDOC
transitioned from JPay to a new vendor, GTL Financial Services, on February 1,
2017. Id. While Plaintiff cites to caselaw supporting the proposition that the
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defendant wardens in those cases had access to institutional records such as
“critical incident reports” and “grievances” and thus could be compelled to
produce those documents (DE 80 at 12-13), the records sought here are not the
same type of “institutional records.” Plaintiff has failed to show that Brewer, in his
capacity as warden of a different facility, has access to “facility wide J-Pay
messages sent from [him] to JCF population concerning more phones being
requested, denied and approved sent between May 1, 2015 and June 7, 2015,”
particularly when JPay is no longer a third party vendor to the MDOC, and
Plaintiff’s motion to compel a response to this request is DENIED.
D.

Requests for Admission

Plaintiff argues that Brewer should be compelled to “fully answer” request
for admission nos. 1, 2, 5-11, 13, 14, and 20-23. (DE 80 at 7-9.) He states that all
of Brewer’s responses “were identical in claiming ‘Defendant lacks requisite
knowledge to formulate a belief,’” and he contends that such responses are
“knowingly false and willful refusals to comply with discovery requests.” (Id. at
8.) He further broadly contends that the “purpose” of his requests for admission is
to “establish 1) Plaintiff did not receive any Due Process for the thank you card; 2)
Plaintiff did not receive any Due Process on the possession of letter allegations;
[and,] 3) There is no love letter or complaint of sexual harassment by any staff.”
(Id. at 3.) However, as above, Plaintiff does not more specifically address each
13 

response to each request for admission. Again, motions to compel discovery are
not the appropriate vehicle for proving the falsity of a response. Nor are discovery
requests a means of trying the whole case.
The Court finds that Brewer has sufficiently responded to Request for
Admission Nos. 1 and 5. The Court thus DENIES Plaintiff’s motion to compel
with respect to those requests.
The Court finds that Brewer’s responses to Request for Admission Nos. 2, 611, 13, 14 and 20-23 are insufficient. Brewer asserted the following identical
response to each of those requests:
Defendant neither admits nor denies as he lacks the requisite knowledge
to formulate a belief. To the extent that a response is necessary, the
request is denied, and Plaintiff is left to his proofs.
(See DE 80 at 35-38.) That response is not an admission, denial, or a statement
“stat[ing] in detail why the answering party [could not] truthfully admit or deny it,”
as required by Rule 36. Fed. R. Civ. P. 36(a)(4). A party responding to a request
for admission may not “hedge his bets” or simply state that he lacks information or
knowledge regarding the matter in question. Rather, Rule 36 states that:
If a matter is not admitted, the answer must specifically deny it or state
in detail why the answering party cannot truthfully admit or deny it. A
denial must fairly respond to the substance of the matter; and when
good faith requires that a party qualify an answer or deny only a part of
a matter, the answer must specify the part admitted and qualify or deny
the rest.

14 

Fed. R. Civ. P. 36(a)(4) (emphases added). Here, Defendant responds both that he
lacks knowledge and yet also somehow manages to deny the requests. He cannot
have it both ways. If he truly lacks the information necessary, he cannot have a
good faith basis for denying the requests.
Further, if a party asserts his lack of knowledge or information as a basis for
failing to admit or deny a response, he must state in good faith that he has made a
reasonable inquiry and that the information known or readily obtainable is
insufficient to enable him to admit or deny. Fed. R. Civ. P. 36(a)(4) (“The
answering party may assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has made reasonable inquiry
and that the information it knows or can readily obtain is insufficient to enable it to
admit or deny.”) (emphasis added). “Generally, courts are in agreement that a
‘reasonable inquiry’ is limited to review and inquiry of those persons and
documents that are within the responding party’s control.” Lieber v. Wells Fargo
Bank, N.A., No. 1:16 CV 2868, 2017 WL 3923128, at *3 (N.D. Ohio Sept. 7, 2017)
(citing cases). “A ‘[r]easonable inquiry includes investigation and inquiry of any
of defendant’s officers, administrators, agents, employees, … who conceivably,
but in realistic terms, may have information which may lead to or furnish the
necessary and appropriate response. In this connection, relevant documents and
regulations must be reviewed as well.’” Id. (citation omitted).
15 

Brewer must therefore supplement his responses to Request for Admission
Nos. 2, 6-11, 13, 14 and 20-23 by March 27, 2019, consistent with the above
cited law. And specifically, as to Request Nos. 20-22, it appears that Brewer can
make a reasonable inquiry to obtain the information necessary to enable him to
admit or deny those requests.
IV.

Conclusion
In sum, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s

motion to compel as follows:
Plaintiff’s motion to compel is DENIED as to Interrogatory No. 1,
Request for Production Nos. 4 (but providing payment information) 6, and 7, and
Request for Admission Nos. 1 and 5.
Defendant must supplement and/or amend his responses to the following
discovery requests by March 27, 2019, as more fully set forth herein above:
Interrogatory Nos. 2 and 3, Request for Production No. 5, and Request for
Admission Nos. 2, 6-11, 13, 14, and 20-23.
IT IS SO ORDERED.
Dated: March 8, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 8, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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