Harrison v. Oliver et al
ORDER RESOLVING 38 MOTION to Compel filed by Larry Harrison. Signed by Magistrate Judge Kimberly G. Altman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:23-cv-10655
District Judge Linda V. Parker
Magistrate Judge Kimberly G. Altman
OLIVER, RICHARD DODMAN,
and MARY ZAMORA
ORDER RESOLVING PLAINTIFF’S MOTION TO COMPEL
(ECF No. 38)1
This is a prisoner civil rights case. Plaintiff Larry Harrison (Harrison),
proceeding pro se, is suing defendants Oliver, a doctor employed by Wellpath;
Richard Dodman (Dodman), a Michigan Department of Corrections (MDOC)
nurse; and Mary Zamora (Zamora), another MDOC nurse (Dodman and Zamora
are collectively referred to as “the MDOC defendants”). (ECF No. 1). Harrison
alleges deliberate indifference to his medical needs and retaliation. (Id.). Under
28 U.S.C. § 636(b)(1), all pretrial matters have been referred to the undersigned.
Upon review of the parties’ papers, the undersigned deems this matter appropriate
for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR
(ECF No. 15).
Before the Court is Harrison’s motion to compel discovery to all defendants.
(ECF No. 38). He seeks documents regarding the discontinuation of his single cell
and toilet accommodations by “Dr. Charles Jamson” on October 19, 2018. (Id.).
Oliver and the MDOC defendants have filed separate responses. (ECF Nos. 42,
43). For the reasons that follow, the MDOC defendants shall produce any
responsive documents in their possession within thirty days of entry of this order.
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); see also State Farm Mut.
Auto. Ins. Co. v. Pointe Physical Therapy, LLC, 255 F. Supp. 3d 700, 704 (E.D.
Mich. 2017) (“Further, a court has broad discretion over discovery matters, Trepel
v. Roadway Express, Inc., 194 F.3d 708 (6th Cir. 1999), and in deciding discovery
disputes, a magistrate judge is entitled to that same broad discretion, and an order
of the same is overruled only if the district court finds an abuse of discretion.”).
Discovery is more liberal than even the trial setting, as Rule 26(b) allows discovery
of information that “need not be admissible in evidence.” Fed. R. Civ. P. 26(b)(1).
If a party believes that another party is not complying with discovery
requests, then it may file a motion to compel. Motions to compel are governed by
Fed. R. Civ. P. 37(a)(3)(B), which states, “A party seeking discovery may move
for an order compelling an answer, designation, production, or inspection.”
As noted above, motions to compel are to be filed if a party is not complying
with discovery requests. Fed. R. Civ. P. 37(a)(3)(B) states that a party may move
to compel if another party fails to answer a question at deposition, to answer an
interrogatory, or to produce a requested document. Defendants point out that
Harrison did not make a discovery request for the documents in question prior to
filing this motion. The MDOC defendants also note that Harrison has not followed
Local Rule 37.2, which requires a verbatim recitation of his discovery request and
defendants’ responses, if any.
In addition, the MDOC defendants say that they do not need to provide the
requested documents because Harrison is able to obtain his own medical records
under MDOC Policy Directive 03.04.108 and Operating Procedure 03.04.108-B.
Thus, the documents are available to Harrison and production through discovery
would be unnecessarily cumulative.
Defendants are correct that a motion to compel is improper before the
documents have been requested through discovery. However, the Court recognizes
that Harrison is a pro se litigant and that discovery is still open but closes on
December 27, 2023. Under these circumstances, the most efficient course of
action is for defendants to treat Harrison’s motion, (ECF No. 38), as a request for
production of documents, and to serve him with a discovery response within thirty
days of this order. The MDOC defendants may object to production of some or all
of Harrison’s requests. Regarding the MDOC defendants’ argument that Harrison
already has access to his medical records, the Court notes that Harrison’s requests
may go beyond documents available in his medical records, and orders that they
not withhold production of requested documents for this reason.
For the reasons stated above, the MDOC defendants shall provide a
discovery response to the documents requested in Harrison’s motion to compel,
(ECF No. 38), within thirty days of entry of this order. Production shall not be
declined on the basis that Harrison has access to his medical records through
Dated: November 14, 2023
s/Kimberly G. Altman
KIMBERLY G. ALTMAN
United States Magistrate Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to
their respective email or First Class U.S. mail addresses disclosed on the Notice of
Electronic Filing on November 14, 2023.
s/Deborah Tofil for Carolyn Ciesla
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