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Roden v. Floyd

United States District Court, E.D. Michigan, Southern Division

December 21, 2016

JOHNATHON RODEN, Plaintiff
v.
MICHELLE FLOYD, et al., Defendants.

          Victoria Roberts District Judge.

          ORDER GRANTING AS UNOPPOSED IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO DEPOSE NON-PARTY WITNESSES (DE 27)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE.

         Pending is pro se, incarcerated Plaintiff's motion to depose non-party witnesses. (DE 27.) For the following reasons, the motion will be GRANTED AS UNOPPOSED in part and DENIED in part.

         A. Background

         Plaintiff filed this action in the United States District Court for the Western District of Michigan in March 2016; it was transferred to this Court in April 2016. (DE 1, 4.) The gist of the Complaint is Plaintiff's contention that Defendants, all of whom are employees of the Michigan Department of Corrections, retaliated against Plaintiff and transferred him to a different correctional facility due to grievances Plaintiff filed regarding the educational programs at the G. Robert Cotton Correctional Facility (“JCF”), where Plaintiff was formerly housed.

         In lieu of an answer, on September 14, 2016, Defendants filed a motion for summary judgment. (DE 19.) According to the motion, Defendant was transferred because of his “infatuation” with JCF staff members and “sexual fantasies involving a female staff member associated with the Jackson College classes . . . .” (DE 19 at 28.) Defendants argue: a) Plaintiff failed to exhaust his administrative remedies; b) Plaintiff has not shown that Defendant Haynes-Love was personally involved in the transfer of Plaintiff; c) Plaintiff has not shown that the transfer was a materially adverse action which violates his constitutional rights; and d) Defendants are entitled to qualified immunity.

         On October 26, 2016, Judge Roberts referred the motion for summary judgment, as well as all other pretrial matters, to me. (DE 23.) In Plaintiff's November 4, 2016 response to the motion for summary judgment he provides a substantive response to the allegation that he failed to exhaust his administrative remedies, but asserts that he needs discovery to respond to Defendants' remaining arguments. (DE 24.)[1] Specifically, Plaintiff attached an affidavit to his response averring that to properly respond he first needs to submit interrogatories and other discovery requests to Defendants, and to depose three non-party witnesses: Dr. David Clark, a teacher in the JCF's education program, who Plaintiff states will testify that he was instructed to terminate Plaintiff from the education program, a termination which precipitated Plaintiff's transfer; Martinez Moore, a JCF prisoner, who Plaintiff states will testify that he saw a confrontation between Defendant Floyd and Plaintiff after which Moore processed a memorandum from Floyd mandating Plaintiff's termination from his position as a tutor (a memorandum Plaintiff ostensibly has not been otherwise able to locate); and Kevin Rose, a prison educational program director, who Plaintiff asserts will testify that Plaintiff was not suspected of inappropriate sexual conduct towards educational staff. (DE 24 at 14-15.)

         Defendants filed a response to the affidavit, arguing it was insufficient to necessitate further discovery because Plaintiff should have already taken discovery if he truly needs it, and he has not shown what evidence he hopes to uncover in discovery. (DE 25.) Plaintiff filed a reply, again stressing his need to take discovery before responding to the motion for summary judgment. (DE 26.)

         On December 16, 2016, Plaintiff filed the pending motion to depose non-party witnesses. (DE 27.) In that motion, Plaintiff asks the Court for leave to depose Clark, Moore and Rose and to issue subpoenas commanding those witnesses to appear for depositions at the Cotton Correctional Facility on February 23, 2017. On December 20, 2016, Defendants filed a response providing they “do not oppose Plaintiff's request to take the deposition of non-parties Clark, Rose, and Moore. In fact, except for non-party Moore, who is incarcerated, Plaintiff's motion appears to be unnecessary as to Clark and Rose.” (DE 28 at 1.) Defendants do, however, oppose Plaintiff's request to be transferred from his current place of incarceration to JCF to conduct the depositions. Instead, “[i]n order to facilitate discovery in this matter, the Michigan Department of Corrections will make available its video conferencing system available so that Plaintiff may participate in the depositions, without the need to transfer.” (Id. at p. 3.)

         B. Analysis

         Fed. R. Civ. P. 56(d) provides that “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 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.” “In deciding a Rule 56(d) motion, the Court must consider [a] number of different factors, including: (1) when the [plaintiff] learned of the issue that is the subject of the desired discovery[;] (2) whether the desired discovery would...change[ ] the ruling[;] (3) how long the discovery period ha[s] lasted[;] (4) whether the [plaintiff] was dilatory in [his] discovery efforts[;] and (5) whether the [defendants] [were] responsive to discovery requests[.]” Kohus v. Ohio State Highway Patrol, 310 F.R.D. 549, 550 (S.D. Ohio 2015) (quoting Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196-97 (6th Cir.1995)) (quotation marks omitted).

         Though Defendants initially opposed Plaintiff's request to take additional discovery before responding to their motion for summary judgment, they have functionally dropped that opposition by virtue of their agreement with Plaintiff's request to take the three depositions at issue. Moreover, bearing in mind the liberal manner in which pro se filings are construed, the Court concludes that Plaintiff has set forth a sufficiently specific statement of reasons why he needs to conduct discovery, and what he hopes to gain therefrom.

         Contrary to Defendants' assertion, the Court concludes that Plaintiff was not dilatory in requesting discovery. Until such time as Defendants had responded to the Complaint, Plaintiff had no opportunity to conduct discovery. Defendants' response to the Complaint was a motion for summary judgment, and Plaintiff quickly requested time to take discovery after that motion was filed. No discovery has occurred in this case and allowing Plaintiff a limited time to conduct discovery is not prejudicial to Defendants, especially in light of their agreement that Plaintiff may take the three aforementioned depositions. In short, after examining the record and weighing the applicable factors, the Court concludes that Plaintiff should be permitted to engage in discovery before responding further to the motion for summary judgment.

         Accordingly, Plaintiff's motion for leave to take depositions of non-parties is GRANTED AS UNOPPOSED to the extent that Plaintiff may take the depositions of Clark, Rose and Moore at the Cotton Correctional Facility. However, the Court agrees with Defendants that Plaintiff should take those depositions via video conference facilities from his current place of incarceration. Thus, the motion is DENIED to the extent that it asks the Court to issue a ...


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