Alexander v. Calzetta et al

Filing 76

ORDER denying 51 Motion to Stay; denying 58 Motion to Stay; finding as moot 63 Motion to Expedite; granting 64 Motion for Extension of Time to File Response/Reply ; granting 67 Motion for Protective Order; denying 72 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D’ANDRE ALEXANDER,
Plaintiff
v.

Case No. 2:16-CV-13293
District Judge Mark A. Goldsmith
Magistrate Judge Anthony P. Patti

NICHOLAS GALZETTA,
FRED GOVERN, ERICA
HUSS, DARRIN VIITALA,
MANDI SALMI, KENNETH
NIEMISTO, KRISTINE
GIESEN, TERRY MEDEN,
CHAD LaCOUNT, HANNA
SAAD, DR. ROSEN, C/O
WATKINS, C/O LEWIS, C/O
LEE, C/O SLAUGHTER, C/O
HOUSTON, DAPHNE M.
JOHNSON and RICHARD
IDEMUDIA
Defendants.
___________________________________/
ORDER (1) DENYING PLAINTIFF’S MOTIONS TO STAY SUMMARY
JUDGMENT (DEs 51, 58), (2) DENYING PLAINTIFF’S MOTION TO
EXPEDITE (DE 63) AS MOOT, (3) GRANTING PLAINTIFF’S MOTION
FOR ENLARGEMENT OF TIME TO FILE RESPONSE TO
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DE 64),
(4) GRANTING DEFENDANTS’ MOTIONS FOR PROTECTIVE ORDER
(DEs 67, 68), (5) DENYING PLAINTIFF’S MOTION TO COMPEL (DE 72)
WITHOUT PREJUDICE, (6) SETTING NEW BRIEFING SCHEDULE ON
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, AND (7)
DIRECTING THE CLERK TO SERVE THIS ORDER ON PLAINTIFF AT
THE CHIPPEWA CORRECTIONAL FACILITY, GUS HARRISON

CORRECTIONAL FACILITY, AND THE RICHARD A. HANDLON
CORRECTIONAL FACILITY ADDRESSES
A.

Background
1.

Service Address

D’Andre Alexander (#731077) is currently incarcerated at the MDOC’s
Chippewa

Correctional

Facility

(URF)

in

Kincheloe,

www.michigan.gov/corrections, “Offender Search.”

Michigan.

See

Plaintiff’s address on the

docket is listed as “Richard A. Handlon Correctional Facility,” in Ionia, Michigan,
and that is also the return address on Plaintiff’s most recent filing in this matter on
November 6, 2017. (DE 75 at 37.) However, mail sent to Plaintiff at that address
was returned as undeliverable on October 20, 2017. (DE 74.) Plaintiff’s most
recent “Notice of change of address/contact information” filed with the Court on
August 3, 2017, lists his “new and current address” as “Gus Harrison Correctional
Facility” in Adrian, Michigan. (DE 61.) On October 13, 2017, Plaintiff filed a
letter with the Court stating that he had “duly filed a notice of address change on
9/15/2017.” (DE 73.) Plaintiff does not indicate however what that new address
is, and a review of the docket reveals no such notice filed on or around September
15, 2017. The Court reminds Plaintiff that he is required, pursuant to E.D. Mich.
LR 11.2, to promptly file a notice with the Clerk and serve a copy of the notice on
all parties whenever his address or other contact information changes. (DE 3.)

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Plaintiff is ORDERED to file a notice with the Court regarding his current address
and contact information. Until Plaintiff’s correct current address is confirmed, the
Clerk is DIRECTED to serve this Order on Plaintiff at the Chippewa Correctional
Facility address, the Gus Harrison Correctional Facility address, and the Richard
A. Handlon Correctional Facility address.
2.

Plaintiff’s Complaint

On September 8, 2016, while incarcerated at Macomb Correctional Facility
(MRF), Alexander filed the instant lawsuit against 18 defendants, who are
described as follows:


nine (9) Defendants are associated with the MDOC’s
Marquette Branch Prison (MBP) (Calzetta, Govern, Giesen,
Viitala, LaCount, Niemisto, Huss, Salmi and Meden),



eight (8) Defendants are associated with the MDOC’s
Woodland Center Correctional Facility (WCC) (Saad, Rosen,
Watkins, Lewis, Lee, Slaughter, Houston and Idemudia), and



one (1) Defendant is associated with the MDOC’s Office of
Legal Affairs (Johnson).

The facts underlying Plaintiff’s complaint span the period from February 2, 2015,
when Plaintiff was incarcerated at MBP, through February 2016, when Plaintiff
was incarcerated at WCC. (DE 1 at 2 ¶ 4, DE 1 at 3-7 ¶¶ 13-48.) This case has
been referred to me for all pretrial matters. (DE 8.)
B.

Instant Motions

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There are multiple motions pending in this matter, including: (1) the State
Defendants’ June 27, 2017 motion for summary judgment (DE 46)1; and (2)
Defendant Terry Meden’s July 11, 2017 motion for summary judgement. (DEs 53,
54.) The Court ordered responses to the two motions for summary judgment by
August 18 and August 17, 2017, respectively. (DEs 48, 57.)
Plaintiff did not file a response to either motion, but instead filed two
motions to stay summary judgment “pursuant to Rule 56(f)” on July 7, 2017 (DE
51) and July 21, 2017 (DE 58), and a motion for expedited consideration of the
motions to stay on August 10, 2017. (DE 63). Plaintiff states that he did not
engage in discovery while Defendants’ motion to sever based on misjoinder of
parties and claims (DE 20) was pending, and argues that he has not had sufficient
time to engage in discovery against the State Defendants, and that those defendants
“have refused to produce any requested documents/videos, and refused to answer
certain interrogatories.” (DE 51 at 2.) He also argues that he had not received a
notice of appearance of counsel for Defendant Meden and thus has not engaged in
any discovery with Meden. (DE 58 at 1.) He asserts generally in both motions
only that he needs to engage in discovery to respond to the summary judgment

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Defendants’ motion identifies the “State Defendants” as Defendants Nicholas
Calzetta, Fred Govern, Erica Huss, Darrin Viitala, Mandi Salmi, Kenneth
Niemisto, Kristine Giesen, Chad LaCount, Melvin Watkins, John Lewis, Rodney
Lee, Kyle Slaughter, Bobby Houston, Daphne Johnson, and Richard Idemudia.
(DE 46 at 2.)
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motions. (DEs 51, 58.) The State Defendants have not responded to the motion to
stay (DE 51), but Defendant Terry Meden filed a response in opposition to
Plaintiff’s July 21, 2017 motion to stay on August 3, 2017, asserting that an
appearance of counsel for Defendant Meden was filed on April 11, 2017, and that
Plaintiff was not barred from serving Meden with discovery requests but has failed
to do so. (DE 59.)
On August 22, 2017, Plaintiff filed a motion for enlargement of time to file a
response to Defendants’ motions for summary judgment. (DE 64). Plaintiff
requests that the deadlines set by the Court to respond to the summary judgment
motions be extended 14 days “[i]n the event that the motions to stay summary
judgment are denied by the court[.]” (Id. at 1.)
The State Defendants filed a motion for protective order on September 26,
2017, seeking a stay of discovery until the Court rules on Defendants’ motions for
summary judgment. (DE 67.) The State Defendants argue that discovery at this
juncture is premature and inappropriate because their motion for summary
judgment, based on failure to exhaust administrative remedies and failure to state
cognizable claims, would be dipositive of Plaintiff’s claims against them. (Id. at
9.) Defendants continue that if their motion for summary judgment is denied,
discovery can then proceed as prescribed by the rules. (Id. at 10.) Defendant
Meden filed a concurrence and adoption of the State Defendants’ motion for
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protective order on September 27, 2017, arguing that he has already answered
some initial discovery and any additional discovery should be prevented until the
Court rules on his motion for summary judgment. (DE 68.) Plaintiff has not
responded to Defendants’ motions.
Finally, Plaintiff filed a motion to compel on October 10, 2017, arguing that
some of Defendants’ responses to his requests for production are inadequate. (DE
72.) Specifically, Plaintiff seeks: (1) to view videos of alleged assaults of Plaintiff
by two other inmates; (2) his entire mental health record during the time he was
housed at MBP and WCC; (3) a copy of an investigation conducted by Defendant
Idemudia with Plaintiff on February 3, 2016; and (4) a “copy of misconduct”
another inmate received for assaulting Plaintiff. (Id. at 4.) Defendants have not
responded to Plaintiff’s motion.
C.

Discussion
Plaintiff brings his motions to stay summary judgment “pursuant to Fed. R.

Civ. P. 56(f)”2 and argues generally that he needs more time to engage in discovery
in order to sufficiently defend against the motions for summary judgment. (DEs
51, 58.) Rule 56(d) provides:

2

Rule 56 was reworded and reorganized effective December 1, 2010. One of the
revisions was moving the provision that was Rule 56(f) into its current location as
Rule 56(d). Based upon the content of Plaintiff’s representations, presumably he
means 56(d).
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If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify it opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d) (emphasis added). Any request for further discovery under
Fed. R. Civ. P. 56(d) must be accompanied by either an affidavit sworn to before a
notary or a declaration that complies with the requirements of 28 U.S.C. § 1746.
Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218, 226
(6th Cir. 2015) (holding that district court did not abuse its discretion by denying a
motion under Rule 56(d) for additional discovery that was not supported by a
request that was “’sworn to before a notary public,’” or “’signed under penalty of
perjury pursuant to 28 U.S.C. § 1746’”) (quoting CareToLive v. Food & Drug
Admin., 631 F.3d 336, 345 (6th Cir. 2011)). Although “[i]t is well-established that
the plaintiff must receive ‘a full opportunity to conduct discovery’ to be able to
successfully defeat a motion for summary judgment,” the Sixth Circuit has “upheld
the denial of Rule 56[(d)] motions on vagueness grounds even when the parties
were given no opportunity for discovery.” CenTra, Inc. v. Estrin, 538 F.3d 402,
420 (6th Cir. 2008). “Rule [56(d)] is not a shield that can be raised to block a
motion for summary judgment without even the slightest showing by the opposing

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party that his opposition is meritorious.” Emmons v. McLaughlin, 874 F.2d 351,
356 (6th Cir. 1989) (citations omitted).
Plaintiff here has failed to file any affidavit or declaration in support of his
motions to stay, and has failed to provide “specified reasons” detailing his “need
for discovery, [and] what material facts [he] hopes to uncover[.]” Cacevic v. City
of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also Aldridge v. City of
Warren, Mich., 682 F. App’x 461, 464 (6th Cir. 2017) (district court did not abuse
its discretion in denying discovery because plaintiff did not file a Rule 56(d)
affidavit but only “offered no more than the vaguest generalities about why further
discovery was necessary or what he hoped to show through that discovery, both of
which he was required to explain in at least some detail”). Moreover, the pending
summary judgment motions are based, at least in part, on the threshold issue of
whether Plaintiff has failed to exhaust his administrative remedies for all of his
claims against Defendants, and Plaintiff has not demonstrated any discovery that is
required with respect to that issue. The discovery sought in Plaintiff’s motion to
compel (DE 72) is not relevant to the exhaustion issue. In addition, this action was
filed on September 8, 2016, and Plaintiff has had an adequate period of time to
engage in discovery, and indeed has engaged in discovery with Defendants. (See
DE 72 at 8-12; DE 68 at 2.) Accordingly, Plaintiff’s motions to stay (DEs 51, 58)
are DENIED for failure to comply with the requirements of Rule 56(d) and his
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motion to expedite consideration of the motions to stay (DE 63) is DENIED AS
MOOT.
Further, Defendants’ motions for protective order (DEs 67, 68) are
GRANTED and discovery in this matter is stayed until the Court rules on
Defendants’ motions for summary judgment.
Finally, Plaintiff’s motion to compel (DE 72) is DENIED without
prejudice to refiling after the Court rules on Defendants’ motion for summary
judgment, if necessary.
D.

Revised Briefing Schedule
Plaintiff has not filed a response to either pending motion for summary

judgment in this matter (DEs 46 and 53). In light of the denial of Plaintiff’s
motions to stay summary judgment, the Court will GRANT Plaintiff’s motion for
enlargement of time to file responses to Defendants’ motions for summary
judgment (DE 64). Accordingly, it is hereby ordered that:
(1)

Plaintiff shall file a response to the State Defendants’ motion for
summary judgment (DE 46) on or before JANUARY 22, 2018. The
response shall be filed in accordance with E.D. Mich. L.R. 7.1. The
State Defendants may file a reply on or before FEBRUARY 1, 2018.

(2)

Plaintiff shall file a response to Defendant Meden’s motion for
summary judgment (DE 53) on or before JANUARY 22, 2018. The
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response shall be filed in accordance with E.D. Mich. L.R. 7.1.
Defendant Meden may file a reply on or before FEBRUARY 1, 2018.
IT IS SO ORDERED.
Dated: January 3, 2018

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 January 3, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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