Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. Rousseau

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

August 6, 2019

BISHOP PERRY, Plaintiff,
v.
BRIAN ROUSSEAU and TONICA BATES, Defendants.

          GEORGE CARAM STEEH DISTRICT JUDGE.

          OPINION AND ORDER DENYING PLAINTIFF'S EMERGENCY MOTION FOR COURT ORDER [15], MOTION FOR DISCOVERY [19], MOTION TO COMPEL [29], AND MOTION FOR TAKING DEPOSITIONS [37], AND GRANTING DEFENDANTS' MOTION FOR PROTECTIVE ORDER [38]

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Bishop Perry, proceeding pro se, filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983, against three employees of the Michigan Department of Corrections (MDOC), Sean Hart, Brian Rousseau, and Tonica Bates, on September 9, 2018, claiming violations of his First and Fourteenth Amendment rights under the United States Constitution. (Docket no. 1.) The court summarily dismissed Defendant Hart from this action on September 20, 2018. (Docket no. 5.) This matter comes before the Court on five Motions: (1) Plaintiff's Emergency Motion for Court Order (docket no. 15); (2) Plaintiff's Motion for Discovery and a Subpoena for all Electronically Stored Information Video and Emails to be Viewed by the Court (docket no. 19); (3) Plaintiff's Motion to Compel Defendants to Produce Documents and Preserve Material Evidence (docket no. 29); (4) Plaintiff's Motion for Taking Depositions (docket no. 37); and (5) Defendants' Motion for Protective Order (docket no. 38).[1] Defendants filed a Response to Plaintiff's Motion to Compel. (Docket no. 33.) All pretrial matters have been referred to the undersigned for consideration. (Docket no. 6.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. Plaintiff's Emergency Motion for Court Order [15]

         Plaintiff claims that the librarian at the Muskegon Correctional Facility (MCF) will not make copies of his exhibits related to this action, which exhibits he claims are necessary to help him prove his First Amendment claims. Plaintiff asserts that he is an indigent prisoner and does not have funds for copies, and he requests a court order requiring the librarian to make the requested copies. Plaintiff, however, advances no authority on which the Court could grant such a request, and he does not otherwise show that he is entitled to the relief he seeks. Contrarily, the Sixth Circuit has repeatedly held that the constitutional right of access to the courts does not entitle prisoners to free photocopying services. Kenny v. Washington, No. 2:17-cv-1, 2017 WL 3097778, at *3 (W.D. Mich. July 21, 2017) (collecting cases). Plaintiff's Emergency Motion for Court Order (docket no. 15) will therefore be denied.

         II. Plaintiff's Motion for Discovery [19]

         Plaintiff has filed a “Motion for Discovery an [sic] a Subpoena for all Electronically Stored Information Video an [sic] Emails to be Viewed by the Court.” In this Motion, Plaintiff asks the Court to “allow discovery to be open for Plaintiff” and “to make the playing field even by allowing these discoverable items.” To the extent that Plaintiff asks the court to open the discovery period and/or authorize early discovery, Plaintiff was not required to file a motion to obtain such relief, because prisoners proceeding pro se are exempt from the constraints on the timing of discovery set forth in Federal Rule of Civil Procedure 26(d)(1).[2] To the extent that Plaintiff moves to compel the production of “Electronically Stored Information Video an [sic] Emails” through this Motion, Plaintiff's Motion does not comport with the requirements of Eastern District of Michigan Local Rule 37.2, which requires that a discovery motion filed in this court “include, in the 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.” For these reasons, the Court will deny Plaintiff's Motion for Discovery (docket no. 19).

         III. Plaintiff's Motion to Compel Defendants to Produce Documents and Preserve Material Evidence [29]

         Plaintiff asserts that Defendants objected and refused to produce documents in response to his December 26, 2018 discovery requests. Plaintiff now moves to compel Defendants to produce those documents and preserve material evidence. He also asks the court to compel Defendants to authenticate the genuineness of the documents that they did produce.

         While Plaintiff's instant Motion contains a verbatim recitation of the discovery requests at issue, it still suffers from the same fatal flaw as Plaintiff's Motion for Discovery, in that it does not include a verbatim recitation or copy of Defendants' responses and objections to the discovery requests, in violation of Local Rule 37.2. This alone is grounds for dismissal. The Court will nevertheless address the merits of Plaintiff's Motion, as Defendants' Response to Plaintiff's Motion includes a copy of their discovery responses (docket nos. 33, 33-2).

         In their Response, Defendants assert that they produced several of the items requested by Plaintiff, including a copy of the MDOC transfer order by which Plaintiff was transferred to MCF, a copy of the Daily Prisoner Movement Sheet reflecting Plaintiff's inner-facility transfer on January 6, 2017, mail log book records, and emails between Assistant Resident Unit Supervisor (ARUS) Y. Strange and Defendant Rousseau. (Docket no. 33 at 2; docket no. 33-2.)

         Plaintiff acknowledges that Defendants produced the log book records, but he argues that he wants the page showing that ARUS Strange dropped off both of his expedited legal mail envelopes to Defendant Bates at the same time. One of the log book pages produced by Defendants appears to contain the entries Plaintiff is seeking. (Docket no. 33-2 at 31.) Specifically, the first entry on the page reflects that on January 5, 2017 at 16:31, Defendant Bates received Plaintiff's legal mail from ARUS Strange. The next entry contains ditto marks (") below the fields for date/time received from housing unit staff, prisoner name/number, and court docket number, which indicates that ARUS Strange delivered another legal mail envelope of Plaintiff's to Defendant Bates on the same date and time as the entry above.

         With respect to the video footage requested by Plaintiff, Defendants responded that it is not available. Defendants explain that absent a Critical Incident Report or some similar event that results in the video footage being saved on a removable storage device, surveillance recordings are generally available for thirty days and then are automatically recorded over. Defendants assert that upon receipt of Plaintiff's discovery requests, they conducted a reasonable investigation regarding the availability of the video footage requested, and MDOC staff reported that it was no longer available. Plaintiff acknowledges but distrusts Defendants' response and asks the court to compel Defendants to produce verification that the video footage is no longer available from a computer worker, an administrative assistant, the warden, or anyone else but Defendants. The additional verification that Plaintiff seeks is not necessary because Defendants' discovery responses are signed by defense counsel. Under Federal Rule of Civil Procedure 26(g), by adding her signature to Defendants' discovery responses, defense counsel certified that to the best of her knowledge, information, and belief formed after a reasonable inquiry, the response or objection was consistent with the discovery rules and warranted by existing law and that she “made a reasonable effort to assure that [Defendants] provided all the information and documents available to [them] that are responsive to the discovery demand.” Fed.R.Civ.P. 26(g), Advisory Committee Notes (1983).

         With respect to Plaintiff's request for email correspondence between Defendant Bates and Defendant Rousseau between January 6, 2017 and January 10, 2017, Defendants responded that they reviewed their email accounts for responsive emails and none were found. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.