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Daniels v. Leslie

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

May 7, 2019

ASBERRY DANIELS, Plaintiff
v.
NICKOLAS LESLIE and HERB BRIGHTON, Defendants.

          Paul D. Borman District Judge

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS (DE 29), GRANTING DEFENDANTS' MOTION FOR LEAVE TO FILE A SECOND DISPOSITIVE MOTION (DE 31), and DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR THE APPOINTMENT OF COUNSEL (DE 21)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         A. Introduction

         Asberry Daniels is currently incarcerated at the MDOC's Gus Harrison Correctional Facility (ARF), where he is serving a life sentence imposed on March 15, 1995.[1] On January 26, 2017, while incarcerated at ARF, Daniels filed the instant lawsuit against Nickolas Leslie and Herb Brighton, each of whom is described as an employee of the MDOC at ARF. (DE 1 at 2 ¶ 7, DE 18.)

         Plaintiff's complaint has survived the first round of dispositive motion practice. (See DE 15, DE 34.) Currently pending before the Court are three motions: (1) Plaintiff's November 21, 2018 motion for the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) (DE 21); (2) Plaintiff's February 1, 2019 motion to compel discovery and for sanctions pursuant to Fed.R.Civ.P. 37(a)(1) (DE 29), regarding which Defendants have filed a response (DE 30) and Plaintiff has filed a reply (DE 32); and, (3) Defendants' February 26, 2019 motion for leave to file a second dispositive motion (DE 31), regarding which Plaintiff has filed a response (DE 33).

         B. Plaintiff's Motion to Compel Discovery and for Sanctions pursuant to Fed.R.Civ.P. 37(a)(1) is granted in part and denied in part.

         Plaintiff alleges that, on or about December 1, 2018, he served the following discovery request upon Defendants:

A legible copy of all complaints, reports, Step I prisoner grievances and Step I responses thereto, and other documents of allegations of the use of excessive force, including prisoner complaints made under the Prison Rape Enforcement Act (“PREA”) against Defendant[s] Nickolas Leslie [and Herb Brighton].

(DE 29 at 1.) On or about December 13, 2018, Defendants responded: “Defendants object to this request on the grounds that all requested PREA complaints or grievances or allegations of excessive force against [Defendant Leslie or Defendant Brighton] that are not related to this claim are irrelevant to this claim.” (DE 30-1.)

         Plaintiff argues that the requested documents are relevant to his claims of “the use of excessive force” and fall within the scope of discovery as defined by Fed.R.Civ.P. 26(b)(1). (DE 29 at 2-3 ¶¶ 4-5.) In addition to an order compelling Defendants to provide the requested discovery, Plaintiff seeks an order assessing sanctions and an award of Fed.R.Civ.P. 37(a)(5) “reasonable expenses.” (DE 29 at 3 ¶¶ 7-8.) Given Plaintiff's reliance upon Fed.R.Civ.P. 37, the Court construes his requests for sanctions and an award of reasonable expenses as one in the same.

         Defendants contend that “complaints, allegations or reports of excessive force” and “Step I grievances related to excessive force” that do not pertain to Plaintiff's claim are not relevant to this lawsuit. (DE 30 at 3-4.) However, the Undersigned finds that past incidents of excessive force may be “relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Interestingly, Defendants' response does not specifically take issue with the request for PREA information, as they did in their actual discovery responses. (Compare DE 30-1 at 3 with DE 30 at 3-4.) Still, looking to the objection as phrased in their December 13, 2018 responses, the Court is not convinced that PREA related complaints involving Defendants Leslie or Brighton (assuming any such material exists) fall within Fed.R.Civ.P. 26(b)(1)'s scope here, where Plaintiff's Eighth Amendment claim is based on restraints and handcuffs. (See DE 1 ¶ 28.) This is so, even if Plaintiff is correct that a PREA complaint “inexorably includes an allegation of excessive force[.]” (DE 29 at 2 ¶ 5.) The two types of assaultive behavior are radically different, one being of a sexual nature and the other not.

         Upon consideration, the Court is not convinced, as Defendants would put it, that “Plaintiff is engaging in a fishing expedition of curiosity and harassment.” (DE 30 at 4.) Accordingly, Plaintiff's motion to compel discovery and for sanctions pursuant to Fed.R.Civ.P. 37(a)(1) (DE 29) is GRANTED to the extent it seeks an order compelling Defendants to respond to the aforementioned requests for production, i.e., Requests C and D (DE 30-1 at 3), but it is DENIED to the extent these requests seek PREA information. Defendants SHALL serve responses to these requests no later than Thursday, May 23, 2019. However, Plaintiff's motion (DE 29) is DENIED WITHOUT PREJUDICE to the extent it seeks sanctions in the form of an award of Rule 37(a)(5) reasonable expenses. Although Plaintiff has provided some evidence that he “attempt[ed] in good faith to obtain the disclosure or discovery without court action[, ]” Fed.R.Civ.P. 37(a)(5)(A)(i), [2] Defendant's “nondisclosure, response, or objection was substantially justified[, ]” Fed.R.Civ.P. 37(a)(5)(A)(ii), or “other circumstances make an award of expenses unjust[, ]” Fed.R.Civ.P. 37(a)(5)(A)(iii). Plaintiff may renew his request for Rule 37 reasonable expenses in the event Defendants fail to comply with the instant order.[3]

         C. Defendants May File a Second Dispositive Motion.

         Upon consideration, Defendants' February 26, 2019 motion for leave to file a second dispositive motion (DE 31) is GRANTED. True, “[a] party must obtain leave of court to file more than one motion for summary judgment[, ]” E.D. Mich. LR 7.1(b)(2), and the Court's scheduling order notes that the Court is unlikely to grant leave under Local Rule 7.1(b)(2). (See DE 24 at 2.) Also, the Court is mindful of Plaintiff's response that “Defendants have failed to show good cause as to why they should be granted leave to file a second motion for summary judgment[, ]” including Plaintiff's assertions that “Defendants were well aware of the fact of Plaintiff's incapacitation as early as . . . their being served with his complaint in March 2017[, ]” and that Defendants “were aware of Plaintiff's condition at the time they filed their first motion for summary judgment nearly two years ago.” (DE 33 at 1-3.) Nonetheless, Defendants' request is purportedly based on “newly discovered information[, ]” i.e., information they learned during the deposition of Plaintiff at ARF on December 14, 2018 and the deposition of Anthony Chandler at Chippewa Correctional Facility (URF) on January 23, 2019. (DE 31 at 6-8, DE 31-1.) Accordingly, ...


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