Parker v. Nagy, et al

Filing 17

OPINION and ORDER DENYING AS MOOT PETITIONER'S 14 MOTION FOR AN ENLARGMENT OF TIME AND GRANTING IN PART PETITIONER'S 15 MOTION TO DEFER AND FOR DISCOVERY Signed by District Judge Linda V. Parker. (AFla)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL PARKER,
Petitioner,

Case Number 2:20-cv-13439
Honorable Linda V. Parker

v.
NOAH NAGY and
HEIDI WASHINGTON,
Respondents.
_______________________________/

OPINION AND ORDER DENYING AS MOOT PETITIONER’S
MOTION FOR AN ENLARGMENT OF TIME (ECF No. 14)
AND GRANTING IN PART PETITIONER’S MOTION
TO DEFER AND FOR DISCOVERY (ECF No. 15)
I. Background
Petitioner Michael Parker, a state prisoner in the custody of the Michigan
Department of Corrections (“MDOC”), filed a pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2241. (ECF No. 1.) In his petition, Petitioner contends
that due to his communal living conditions, his age, and his poor health,1 he is at a
substantial risk of being infected with the coronavirus known as COVID-19 and
then becoming ill or dying. (ECF No. 1 at Pg ID 44-46.) He also claims that his
continued incarceration violates his rights under the Due Process Clause of the

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Petitioner suffers from stage four colon cancer and hypertension, among
other things. (ECF No. 1 at Pg ID 45; see also ECF No. 12 at Pg ID 150, 225.)

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Fourteenth Amendment to the United States Constitution. (Id. at Pg ID 51.) In
both his habeas petition (ECF No. 1) and a motion for a temporary restraining
order (TRO) or preliminary injunction (ECF No. 3), filed on the same day,
Petitioner seeks release from prison on his own recognizance until the COVID-19
pandemic is resolved. (ECF No. 1 at Pg ID 44-45; ECF No. 3 at Pg ID 33.)
The Court denied Petitioner’s request for a TRO and ordered the Clerk of
Court to serve Petitioner’s motion and habeas corpus petition on Respondents.
(ECF No. 4 at Pg ID 73.) The Court ordered Respondents to file a response to
Petitioner’s request for a preliminary injunction. (Id.) Respondents subsequently
filed Petitioner’s medical records (ECF No. 12) and a response to Petitioner’s
request for injunctive relief (ECF No. 7). Now before the Court are Petitioner’s
motion for an enlargement of time (ECF No. 14) and his motion to defer the
Court’s decision on his request for a preliminary injunction until he can obtain
discovery (ECF No. 15).
II. Analysis
A. The Motion for Enlargement of Time
Petitioner filed his Motion for Enlargement of Time on March 30, 2021. He
sought an enlargement of time in which to respond to Respondents’ answer to his
request for injunctive relief and Respondents’ future answer to his habeas petition.
(ECF No. 14 at Pg ID 726, 728.) The reasons Petitioner gave for needing
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additional time are: (1) he has limited access to a prison law library for conducting
legal research, and (2) he wants to obtain a medical professional’s recent request to
have the Michigan Parole Board release him early on parole. (Id. at Pg ID 726728.)
On April 13, 2021, Petitioner filed his reply to Respondents’ answer to his
motion for a preliminary injunction (ECF No. 16), to which he attached his
medical practitioner’s Parole Board Medical Status Report (id. at Pg ID 759). The
Court concludes from these items that Petitioner no longer needs an enlargement of
time to file his reply to Respondents’ answer to his motion for injunctive relief.
Accordingly, the Court will deny as moot Petitioner’s Motion for Enlargement of
Time (ECF No. 14). The Court will give Petitioner time to file a reply to
Respondents’ answer to the habeas petition if, at some future time, the Court orders
Respondents to file an answer.
B. The Motion to Defer
In his motion to defer, Petitioner asks the Court “to defer Respondents’
response in opposition to [his] emergency motion for a preliminary injunction and
brief in support.” (ECF No. 15 at Pg ID 731.) The Court understands Petitioner to
be saying that he wants the Court to defer a decision on his request for injunctive
relief. Petitioner claims he did not receive the medical records and the Parole
Board Medical Status Report dated December 10, 2020, which Respondents
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attached to their answer to his request for injunctive relief. (Id. at Pg ID 732.)
Petitioner wants the Court to defer deciding the motion until he obtains the
discovery materials or until Respondents provide him with the documents that they
filed with their answer to his request for injunctive relief. (Id. at Pg ID 733-734.)
The Supreme Court has said that, “[a] habeas petitioner, unlike the usual
civil litigant in federal court, is not entitled to discovery as a matter of ordinary
course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, “where specific
allegations before the court show reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is
the duty of the court to provide the necessary facilities and procedures for an
adequate inquiry.” Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300
(1969)). Although “the scope and extent of such discovery is a matter confided to
the discretion of the District Court,” id. at 909, it would be an abuse of discretion
not to permit any discovery if a petitioner can establish “good cause” for discovery
under Habeas Corpus Rule 6(a), see id.
Respondents concede that Petitioner’s medical records are important
because his motion for a preliminary injunction rests on his health status. (ECF
No. 8 at Pg ID 132.) Furthermore, at Respondents’ request (see ECF No. 8), the
Court filed Petitioner’s medical records under seal to retain their confidentiality
(ECF No. 9).
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Petitioner cannot challenge the records or use them to his advantage unless
he has access to them, and he claims that the records he has acquired – for the
period August 2020 through December 31, 2020 – are not the equivalent of what
Respondents filed. (ECF No. 15 at Pg ID 735.) He also claims that MDOC has
withheld from him the records it sent to Respondents’ counsel. (Id. at Pg ID 735736.)
Petitioner shows “good cause” for discovery. Accordingly, the Court will
order Respondents to send Petitioner a copy of the records they submitted to the
Court for filing under seal. The Court will delay a decision on Petitioner’s request
for a preliminary injunction until he has an opportunity to review the discovery
materials and submit a supplemental reply to Respondents’ answer to his motion
for injunctive relief.
Petitioner also asks for the “web cites” mentioned in Respondents’ brief.
(Id. at Pg ID 737.) He seems to be referring to: (i) the MDOC’s profile of him on
its Offender Tracking Information System; (ii) Michigan Governor Gretchen
Whitmer’s Executive Order 2020-29; (iii) coronavirus information provided by the
MDOC on its official website; and (iv) Respondent Washington’s Director’s
Office Memorandum 2020-30R8. (See ECF No. 7 at Pg ID 118, 121-123.) The
Court, however, is not relying on Executive Order 2020-29, which is no longer in
effect, and Petitioner should be able to obtain the other information directly from
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the MDOC or thorough his legal research. Therefore, the Court will deny his
request for discovery of those items.
III. Conclusion and Order
Petitioner is no longer in need of an enlargement of time, but he is entitled to
some discovery.
Accordingly,
IT IS ORDERED that Petitioner’s Motion for Enlargement of Time (ECF
No. 14) is DENIED as moot.
IT IS FURTHER ORDERED that Petitioner’s Motion to Defer (ECF No.
15) is GRANTED IN PART. Respondents shall mail to Petitioner a copy of the
medical records and the Parole Board request that they submitted to the Court for
filing under seal.
IT IS FURTHER ORDERED that Petitioner’s request for additional
discovery is DENIED.
IT IS FURTHER ORDERED that the Court will delay a decision on
Petitioner’s request for a preliminary injunction until Petitioner has the opportunity
to review the discovery materials provided to him.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 9, 2021
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 9, 2021, by electronic and/or
U.S. First Class mail.

s/Aaron Flanigan
Case Manager

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