United States District Court, E.D. Michigan, Southern Division
Caram Steeh, Judge.
OPINION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF'S MARCH 6, 2017 REQUEST (DE 29)
Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE.
January 14, 2016, while incarcerated at the MDOC's
Woodland Center Correctional Facility (WCC), Michael Robinson
filed the instant lawsuit in pro per against Nicole
Tansel, who is described as a WCC activity therapist. (DE 1.)
Plaintiff is proceeding in forma pauperis. (DEs 6,
was paroled on or about August 2, 2016. He currently
resides in Mississippi.
case has been referred to me for pretrial matters. (DE 10.)
Currently before the Court are two matters:
(1) Plaintiff's January 9, 2017 motion
for summary judgment (DE 26), regarding which Defendant has
filed a response (DE 27) and Plaintiff has filed a reply (DE
30); and, (2) Plaintiff's March 6, 2017
request (DE 29), regarding which Defendant has filed a
response (DE 31).
the Court will address Plaintiff's request, construing it
as a motion to compel discovery pursuant to Federal Rule of
Civil Procedure 37.
Federal Rules of Civil Procedure that govern disclosures and
discovery are set forth in Rules 26 through 37. Pursuant to
Rule 37, a party may file a motion to compel a deposition.
See, i.e., Fed.R.Civ.P. 37(a)(3)(C),
(b)(1), (d)(1)(A)(i). Also, 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). Generally, 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)(1).
requests are premature. First, Plaintiff seeks to compel the
deposition of the MDOC official(s) in charge of Defendant
Tansel's records. Even if Plaintiff does not need leave
to take the deposition of a non-party records custodian,
“[t]he deponent's attendance may be compelled by
subpoena under Rule 45.” Fed. Rules Civ. P. 30(a)(1),
31(a)(1). If he seeks to depose a non-party, and if leave is
not required under Rule 30(a)(2) or Rule 31(a)(2), then
Plaintiff should proceed under Fed.R.Civ.P. 45.
Plaintiff seeks the production of documents. Defendant
responds with several objections. (See DE 31 ¶
3.) Nonetheless, to the extent Plaintiff seeks the production
of documents concerning Defendant Tinsel, it is not clear
whether he has first attempted to obtain such documents from
her by service of a request of production of documents as
contemplated by Fed.R.Civ.P. 34(a), (b)(1), after which
Defendant would be required to respond and/or object in
accordance with Fed.R.Civ.P. 34(b)(2). Plaintiff cannot
successfully move for an order compelling documents from
Defendant Tinsel when he did ...