United States District Court, E.D. Michigan, Southern Division
Victoria A. Roberts District Judge.
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
DISCOVERY, TREATING MOTION AS MOOT [Doc. # 30]
Anthony P. Patti United States Magistrate Judge.
Anderson (“Anderson”) is a state prisoner
proceeding in forma pauperis. He filed a civil
rights lawsuit against Colter Furst, Michael Thomas, and
Nathan Ellis (collectively, “Defendants”).
brings a motion to compel discovery pursuant to Fed. R. Civ.
Pro. 37(a). For the reasons that follow, that motion is
filed his complaint on August 14, 2017. He alleges that
Defendants, all Michigan State Police (“MSP”)
Troopers, violated his Fourth Amendment rights by using
excessive force during his September 4, 2015 arrest. The
Court granted Anderson's application to proceed in
forma pauperis, and ordered the United States Marshal to
serve Defendants. The Marshal sent each Defendant a notice of
the pending suit, and a form requesting that service be
waived, on August 21, 2017. Defendants returned executed
waivers of service on September 19, 2017, and timely filed
their answer on October 20, 2017.
February 26, 2018, Anderson filed a motion for an order
compelling discovery. Anderson seeks production of several
files and documents, including: 1) dash camera footage from
his arrest; 2) copies of photos showing damage done to the
MSP vehicle and his vehicle during his arrest; 3) copies of
all notes from state troopers relating to his arrest; and 4)
MSP policy regarding Pursuit Intervention Technique
(“PIT”) maneuvers. Anderson claims that on
January 16, 2018, he submitted a written request for these
documents pursuant to Fed.R.Civ.P. 34, but has yet to receive
them. Anderson requests that the Court order Defendants to
pay him $2, 100 as a reasonable expense incurred to obtain an
order compelling discovery.
argue: 1) Anderson did not seek concurrence before filing his
motion; 2) he provided no proof of his written request; 3)
his request is deficient under the applicable rules of
procedure since no scheduling order has been entered; and 4)
his motion is moot because they mailed appropriate responses
to his request after receiving notice.
may obtain discovery on any non-privileged matter that is
relevant to any party's claim or defense, and
proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1).
A party may serve on any other party a request for production
that is within the scope of Rule 26(b). Fed.R.Civ.P. 34(a).
The party receiving the request must respond within 30 days.
Fed.R.Civ.P. 34(b)(2)(A). If the party fails to respond, the
party seeking discovery may move for an order compelling
discovery. Fed.R.Civ.P. 37(a)(3)(B)(iv). The motion must
include a certification that the movant has in good faith
conferred or attempted to confer with the party failing to
make discovery, in an effort to obtain discovery without
court action. Fed.R.Civ.P. 37(a)(1).
filed a declaration on March 26, 2018, which the Court will
interpret as a reply to Defendants' response. Anderson
claims the Court and Defendants were served with his request
for the production of documents on January 16, 2018. He
attaches as exhibits legal mail disbursement forms, which
presumably are his attempt to prove that the request was
docket entry reflects Anderson's purported mailing to the
Court; Defendants say that no proof of Anderson's mailing
is in defense counsel's file. In his declaration,
Anderson suggests that either the Defendants are providing
false statements to the Court, or the clerk's office is
willfully neglecting its duties, or both.
motion fails for a few reasons. First, Anderson has not
provided evidence that would prove that he did in fact submit
his written request for discovery to Defendants or to the
Court, although the Court notes that Local Rule 26.2
generally prohibits the filing of discovery materials with
the clerk's office, except when required in support of a
motion or in other circumstances specifically permitted under
26.2(a) or (b). But see also Local Rule 37.2
(requiring “in the [discovery] motion itself or in an
attached memorandum, a verbatim recitation of each
interrogatory, request, answer, response, and objection which
is the subject of the motion or a copy of the actual
discovery document which is the subject of the
motion.”) Plaintiff fails to provide a copy of his
request with his motion. Instead, he attaches indiscernible
legal mail disbursement authorization forms from the Michigan
Department of Corrections. But the Court has no record of
this mailing. Defendants claim to have no record either. As
far as the Court can tell, Anderson's first discovery
request seems to be his motion, which is improper. See
Babb v. Osbourne, 2016 U.S. Dist. LEXIS 169881, *1 (W.D.
Ky. Dec. 8, 2016) (denying a plaintiff's motion for
discovery where the motion appeared to “be initial
requests for ...