Townsend v. Rhodes et al

Filing 34

ORDER GRANTING and DENYING in part 13 Motion to Compel and DENYING 14 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD TOWNSEND,
Plaintiff,
Case No. 14-10411
District Judge Terrence G. Berg
Magistrate Judge Anthony P. Patti

v.

KAREN RHODES, et al.,
Defendants.
___________________________________/
ORDER GRANTING IN PART PLAINTIFF’S FIRST MOTION TO
COMPEL (DE 13) AND DENYING WITHOUT PREJUDICE PLAINTIFF’S
SECOND MOTION TO COMPEL (DE 14)
I.

BACKGROUND
Plaintiff Richard Townsend, a state prisoner who is proceeding without the

assistance of counsel, filed his Complaint and Application to Proceed In Forma
Pauperis on January 27, 2014. (DE 1, 2.) Plaintiff brings deliberate indifference
claims under the Eighth Amendment of the United States Constitution against
Defendants Karen Rhodes, Vicki Carlson, Linda Haase, and Marsha O’Connell.1
He also names four “John Doe” Defendants, asserting that he does not have access

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Defendants Carlson, Haase, and O’Connell filed a Motion for Summary
Judgment on October 27, 2014, in which they indicate that their names were
misspelled in the Complaint. (Mot. for Summ. J. 1, DE 28.) They provide the
correct the spelling of their names, which the Court will use throughout this Order.

to the names of the individuals who administered his medical care at the
Allegiance Hospital in Jackson, Michigan. (Compl. ¶¶ 17-20.) The Court granted
his application and the named Defendants timely answered on October 21, 2014.
On May 16, 2014, the Court issued an Order directing Plaintiff to provide
the information needed to effect service over the John Doe Defendants. (DE 8.)
The Court gave Plaintiff sixty days to provide the names, identities, and addresses
of the unknown Defendants. Plaintiff was therefore required to provide this
information on or before July 15, 2014. He timely filed the instant Motions to
Compel (DE 13 and 14) on July 2, 2014 and July 3, 2014, respectively. To date,
Plaintiff has not provided the required information to the Court, through no
apparent fault of his own, as explained below.
II.

STANDARD
Pursuant to Federal Rule of Civil Procedure 37, a party may file a motion to

compel production of requested documents. The Rule provides that “an evasive or
incomplete disclosure, answer, or response must be treated as a failure to disclose,
answer, or respond.” Fed. R. Civ. P. 37(a)(4). Additionally, any motion to compel
filed under Rule 37 “must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to make
disclosures or discovery. . . .” Fed. R. Civ. P. 37(a).

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III.

DISCUSSION
A.

Plaintiff’s Motion to Compel the Names of John Doe Defendants
(DE 13)

Plaintiff filed his first Motion to Compel on July 2, 2014. (DE 13.) In the
Motion, he seeks to discover the names of the doctors and nurses who treated him
at Allegiance Hospital on December 24, 2013 and January 6, 2014. He also seeks
to “obtain records of the treatment provided, recommended follow-up treatment,
and handwritten notes” from his visits to Allegiance. (Mot. at ¶ 5, DE 13.)
Plaintiff indicates that he has requested the information “numerous times” from the
Lakeland Correctional Facility Health Care office and has made a written request
for his Allegiance Hospital Records in Jackson, Michigan, but has not received any
information to date. (Id. at ¶¶ 6-7.) In support of his Motion, Plaintiff attaches a
response to his kite for medical records from Jackson Health Care dated March 10,
2014. The response is as follows:
In Response to your kite for Medical Records, we ask that you please
be patient for copies of Medical Records. The Health Information
position is currently vacant and we have coverage only one day a
week to answer the requests and copy records. I will answer your
requests as soon as possible.
(DE 13 at 4.)
The Court will grant Plaintiff’s Motion to the extent he seeks to identify the
John Doe Defendants. Plaintiff has made a good-faith effort to comply with the
Court’s May 16, 2014 Order. He filed the instant Motion seeking the required
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information prior to the deadline imposed by the Court. Moreover, he provided a
response to his request for information dated March 10, 2014, which shows that
Plaintiff was seeking contact information for the John Doe defendants even before
the Court issued its Order. Finally, Plaintiff is incarcerated and proceeding without
the assistance of counsel, which can make such identification difficult. The Court
will therefore extend the service deadline and GRANT IN PART Plaintiff’s first
Motion to Compel (DE 13), to the extent he seeks to identify the John Doe
Defendants and limited by the following:
1. Counsel for Defendants Carlson, Haase, and O’Connell, who also represents
MDOC, must determine through the Lakeland Correctional Facility Health
Care office or other appropriate source the names of the four individuals
who provided Plaintiff’s medical care at the Allegiance Hospital on
December 24, 2013 and on January 6, 2014.
2. When the John Doe Defendants are identified, Plaintiff shall provide, at his
cost, sufficient copies of the Complaint to the U.S. Marshals Service.
3. The U.S. Marshals Service is then directed to effect service upon these
Defendants. Upon identification of the John Doe Defendants, the Clerk of
the Court will issue a new Summons giving the Marshals 45 days to effect
service on the John Doe Defendants.
To the extent Plaintiff seeks discovery outside of the names and addresses of
the John Doe Defendants, namely, records of the treatment provided,
recommended follow-up, and handwritten notes, his request is DENIED
WITHOUT PREJUDICE as premature. Plaintiff seeks this information from the
John Doe Defendants at Allegiance Hospital (“Allegiance”), who have not yet
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been identified.2 When those individuals are identified, served, and have appeared,
the Court will issue a scheduling order to address discovery deadlines and issues.
At that point, Plaintiff may serve his requests on the named Defendants according
to Rule 34(a). If Defendants fail to respond at that point, he may then file a motion
to compel pursuant to Rule 37. Any such motion must have a certification that
Plaintiff has in good faith conferred or attempted to confer with the person or party
failing to produce the discovery. Fed. R. Civ. P. 37(a)(1).
B.

Plaintiff’s Motion to Compel Discovery (DE 14)

Plaintiff’s Second Motion to Compel is premature. Plaintiff cannot
successfully move for an order compelling documents when he did not first seek
this information through Rule 34. See Fed. R. Civ. P. 37(a)(3)(B)(iv). There is no
indication here that Plaintiff has sought the requested discovery from Defendants.
Nor has he included a certification that he has conferred or attempted to confer
with the person or party failing to provide the responses pursuant to Rule 37. As
best as the Court can discern, Plaintiff simply filed his discovery requests and asks
the Court to order Defendants to respond. The materials Plaintiff seeks may be
discoverable, but Plaintiff has failed to properly serve the requests pursuant to

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The Court notes that Allegiance is not named as a Defendant and that Plaintiff’s
request for Allegiance records have been channeled through the MDOC. Nothing
seemingly prevents him from seeking those records directly from Allegiance,
whether by subpoena under Rule 45 or by a simple, HIPAA compliant record
release and request.
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Federal Rule of Civil Procedure 34(a). Furthermore, the filing of such discovery
material is improper pursuant to Local Rule 26.2. E.D. Mich. LR 26.2 (“A party or
other person may not file discovery material” except in limited circumstances)
(emphasis added). Accordingly, Plaintiff’s Second Motion is DENIED
WITHOUT PREJUDICE as premature.
IT IS SO ORDERED.

Dated: February 13, 2015

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 February 13, 2015, electronically and/or by U.S. Mail.

s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
[phone]

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