United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
JANET T. NEFF JUDGE
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff is represented by counsel. Following
discovery, which was extended several times,  Defendants filed
a motion for summary judgment. The matter was referred to the
Magistrate Judge. On December 7, 2017, the Magistrate Judge
issued a Report and Recommendation (R&R), recommending
that this Court grant Defendants' motion. The matter is
presently before the Court on Plaintiff's December 21,
2017 document entitled “Motion & Brief for
Extension of Time to File Objections and Response to
Magistrate's Report and Recommendations; Motion &
Brief for an Order Compelling Discovery; Motion & Brief
to Stay or Deny Summary Judgment” (ECF No. 53). At this
Court's request, Defendants filed a response to
Plaintiff's omnibus document (ECF No. 55). In accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3),
the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections
have been made. For the reasons that follow, the Court denies
Plaintiff's objections, including his motions therein,
and grants Defendants' motion for summary judgment.
Complaint, Plaintiff alleges that then Warden Mary Berghuis
and Sergeant James Plichta violated his Eighth Amendment
right under the Cruel and Unusual Punishment Clause by being
deliberately indifferent to the risk that he would slip and
fall in March 2013 (ECF No. 1 at PageID.4-5). Plaintiff sued
Defendants Berghuis and Plichta in their individual and
official capacities, seeking an award of money damages and
injunctive relief. In his December 7, 2017 Report and
Recommendation, the Magistrate Judge recommends that (1)
Plaintiff's claims for injunctive relief be dismissed as
moot inasmuch as Plaintiff is now housed at a different
facility; (2) Plaintiff's claims for damages against
Defendants in their official capacities be dismissed with
prejudice because they are barred by Eleventh Amendment
immunity; and (3) Defendants' motion for summary judgment
be granted and judgment entered in Defendants' favor on
all Plaintiff's claims for damages against Defendants in
their individual capacities where (a) Plaintiff presented
insufficient evidence of both components of an Eighth
Amendment claim, and (b) Defendants are entitled to qualified
immunity (ECF No. 52).
December 21, 2017 response to the Magistrate Judge's
Report and Recommendation (ECF No. 53), Plaintiff does not
identify any factual or legal error by the Magistrate Judge.
Rather, Plaintiff requests that this Court (1) defer its
ruling on Defendants' motion for summary judgment, or
simply deny Defendants summary judgment; and (2) either allow
him to amend his discovery requests, or compel Defendants to
produce the discovery already requested (id. at
PageID.280-285). Specifically, Plaintiff seeks to obtain
“the names of the individual prison officers who
ordered Plaintiff to proceed across the dangerous ice and
snow hazardous path” (id. at PageID.279, 285).
their response in opposition, Defendants detail the numerous
extensions of time Plaintiff received to conduct discovery
and argue that Plaintiff's pursuit of a
“do-over” of discovery and motion practice should
be denied (ECF No. 55 at PageID.290-293). Further, Defendants
point out that Plaintiff has not identified how the requested
discovery would uncover evidence changing the conclusions
that a slip and fall is not cruel and unusual punishment and
that Defendants were not aware of any substantial risk
(id. at PageID.293-295).
Rule of Civil Procedure 56(d) provides that “[i]f 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.” While Plaintiff seeks the relief
provided in Rule 56(d)(1) and (2), Plaintiff did not provide
a supporting affidavit or declaration. Nor did Plaintiff seek
additional discovery in his response to Defendants'
motion for summary judgment, arguing only that Defendants are
not entitled to qualified immunity or Eleventh Amendment
immunity (ECF No. 50).
failure to comply with Rule 56(d), both in technical form and
substance, is sufficient reason to deny his present requests.
See, e.g., Johnson v. Royal Chem. Co., Ltd., No.
17-3234, 2017 WL 5461708, at *2 (6th Cir. Oct. 27, 2017)
(“Because [the plaintiff] failed to satisfy the
requirements of Rule 56(d) or otherwise move for additional
discovery, the district court did not abuse its discretion by
ruling on the motion for summary judgment without allowing
further discovery.”); Scadden v. Werner, 677
F. App'x 996, 1000 (6th Cir. 2017) (holding that
“[the plaintiff's] failure to comply with 56(d) is
reason enough to conclude that the district court did not
abuse its discretion in granting the initial summary judgment
motion, or denying his request for reconsideration, without
allowing for more discovery”); Baker v.
Stevenson, 605 F. App'x 514, 521 (6th Cir. 2015)
(holding that the plaintiff-prisoner forfeited his discovery
challenge where he neither filed a Rule 56(d) motion nor made
any analogous arguments in his opposition to summary
judgment); Lane v. Wexford Health Sources
(Contreator), 510 F. App'x 385, 388 (6th Cir. 2013)
(because the plaintiff-prisoner failed to satisfy the
requirements of Rule 56(d), “the district court was
under no obligation to allow additional discovery pertaining
to his medical records before granting summary
judgment”). As the case law demonstrates,
“[c]ompliance with Rule 56(d) is essential.”
Hall v. Plastipak Holdings, Inc., No. 17-1694, 2018
WL 1100329, at *3 (6th Cir. Feb. 28, 2018).
Plaintiff's requests are simply made too late. A motion
for relief under Rule 56(d) must be timely filed in order to
give the district court the proper “chance to rule on
the need for additional discovery.” Block v.
Meharry Med. Coll., No. 17-5484, 2018 WL 501392, at *9
(6th Cir. Jan. 22, 2018) (quoting Plott v. Gen. Motors
Corp., Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir.
1995)). See, e.g., Bormuth v. Cty. of Jackson, 870
F.3d 494, 502 (6th Cir. 2017) (“declin[ing] to sanction
the ‘I did not have all the evidence I needed'
argument made for the first time following the district
court's adverse ruling on the cross-motions for summary
judgment”), petition for cert. filed. Where,
as here, a plaintiff “fails to invoke Rule 56(d) before
the magistrate judge [and] instead files his motion in the
district court after the magistrate judge's report and
recommendation was filed, he waives any right to raise Rule
56(d) issues.” Peltier v. Macomb County,
Mich., No. 10-cv-10796, 2011 WL 3320743, at *2 (E.D.
Mich. Aug. 2, 2011). Making a discovery request-“long
after the deadline and only in response to an R&R-[is]
too late.” Jenkins v. Foot Locker Inc., 598 F.
App'x 346, 348 (6th Cir. 2015).
assuming arguendo that Plaintiff's requests are properly
and timely made, he has not demonstrated his entitlement to
such relief. To obtain relief under Rule 56(d), a plaintiff
must specify, in pertinent part, how such discovery would
create a factual dispute sufficient to defeat summary
judgment. See generally CenTra, Inc. v. Estrin, 538
F.3d 402, 420-21 (6th Cir. 2008); Plott, 71 F.3d at
1196. As set forth more fully by Defendants in response (ECF
No. 55 at PageID.293-295), Plaintiff has failed to
demonstrate how his requested discovery of “the names
of the officers involved in this matter” would defeat
these Defendants' motion for summary judgment.
“[E]ven if the issue is properly raised in the lower
court, ‘[a] district court generally does not abuse its
discretion in denying a Rule 56[d] discovery request if
granting the desired discovery would not have affected its
ruling.'” Khaled v. Dearborn Heights Police
Dep't, 711 F. App'x 766, 770 (6th Cir. 2017)
(citation omitted). See, e.g., Sandusky Wellness Ctr.,
LLC v. Medco Health Sols., Inc., 788 F.3d 218, 226 (6th
Cir. 2015) (finding no abuse of discretion in granting the
movant summary judgment where the non-movant's Rule 56(d)
motion requested evidence that did not bear on a material
issue of fact); Allen v. Collins, 529 F. App'x
576, 584 (6th Cir. 2013) (finding no abuse of discretion in
granting the movant summary judgment where the prisoners'
requested discovery “would not have changed the legal
and factual deficiencies” in their claims).
Plaintiff does not identify any factual or legal error by the
Magistrate Judge in analyzing Defendants' motion for
summary judgment, and Plaintiff's motions to delay or
deny ruling on Defendants' motion and to extend or compel
discovery are properly denied. Accordingly, this Court adopts
the Magistrate Judge's Report and Recommendation as the
Opinion of this Court. Because this Opinion and Order
resolves all pending claims in this case, a Judgment will
also be entered. See Fed. R. Civ. P. 58. Therefore:
IS HEREBY ORDERED that Plaintiff's Objections,
including his motions therein (ECF No. 53), are DENIED and
the Report and Recommendation of the Magistrate Judge (ECF
No. 52) is APPROVED and ADOPTED as the Opinion of the Court.
IS FURTHER ORDERED that Defendants' Motion for