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Robinson v. Tansel

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

March 28, 2017

MICHAEL ROBINSON, Plaintiff,
v.
NICOLE TANSEL, Defendant.

          George Caram Steeh, Judge.

          OPINION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MARCH 6, 2017 REQUEST (DE 29)

          Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE.

         I. Opinion

         A. Background

         On 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, 7.)

         Plaintiff was paroled on or about August 2, 2016.[1] He currently resides in Mississippi.[2]

         B. Plaintiff's requests

         This 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).

         Here, the Court will address Plaintiff's request, construing it as a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37.

         C. Standard

         The 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).

         D. Discussion

         Plaintiff's 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.

         Second, Plaintiff seeks the production of documents. Defendant responds with several objections. (See DE 31 ΒΆ 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 ...


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