Annabel v. Heyns, CASE NO. 2:12-CV-13590
| Decision Date | 24 March 2014 |
| Docket Number | CASE NO. 2:12-CV-13590 |
| Parties | ROBERT ANNABEL, Plaintiff, v. DANIEL HEYNS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff Robert Annabel is a state prisoner who, at the times relevant to his action, was incarcerated at the Ionia Maximum Correction Facility in Ionia, Michigan; the Woodland Correctional Center in Whitmore Lake, Michigan; the Michigan Reformatory in Ionia, Michigan; and the Gus Harrison Correctional Facility in Adrian, Michigan. Plaintiff commenced this action on August 14, 2012, by filing a pro se civil rights complaint pursuant to 42 U.S.C. §§ 1983, 1985(3), and Title II of the Americans with Disabilities Act. A full background of the case is set forth in the Report and Recommendation filed on this date. This Order addresses plaintiff's three motions to compel discovery, filed on October 7 and December 10, 2013, and January 31, 2014, as well as defendant Heyns's motion to quash, filed on January 22, 2014. The parties have filed responses and replies to each of the motions.
In his first motion to compel, plaintiff seeks an order compelling defendant Dinsa to "properly answer" Interrogatory Nos. 1-2 and 4-8 of plaintiff's First Set of Interrogatories, and to "sincerely respond" to Request Nos. 1, 4, and 5 of plaintiff's First Request for Admissions.Interrogatory Nos. 1 and 2 asked defendant Dinsa the date on which defendant Norris lowered plaintiff's lithium dosage, and after the lowering of the dosage the lithium level revealed by the next laboratory analysis of his blood draws. Interrogatory No. 4 asked whether plaintiff's lithium level was increased back to its original dosage on October 28, 2011. Defendant Dinsa responded to each interrogatory: This was a proper response to these interrogatories. "Lack of knowledge or the ability to recollect is, if true, a fair answer." Weaver v. Mateer & Herbert, P.A., 277 F.R.D. 655, 658 (M.D. Fla. 2011); cf. Roberson v. Great Am. Ins. Cos. of N.Y., 48 F.R.D. 404, 409 (N.D. Ga. 1969). The same holds true for defendant Dinsa's responses to Interrogatory Nos. 7 and 8, which queried defendant Dinsa regarding statements made at a February 2012 panel hearing and as to which defendant Dinsa disclaims any personal recall of his specific testimony at the hearing. With respect to Interrogatory Nos. 5 and 6, plaintiff asked on what date defendant Dinsa lowered plaintiff's lithium dosage and Wellbutrin dosage. Plaintiff claims that although defendant Dinsa answered these interrogatories, his answer to No. 5 included extraneous, false information and his answer to No. 6 is false. Likewise, plaintiff challenges the veracity of defendant Dinsa's responses to Request Nos. 1, 4, and 5 of plaintiff's requests for admissions. Plaintiff's challenge to the veracity of defendant's answer provides no basis for a motion to compel. Stewart v. Capital Newspapers, Inc., No. 09-cv-554, 2010 WL 1508289, at *3 (W.D. Wis. Apr. 14, 2010); accord Grant v. Target Corp., No. 2:10-cv-823, 2013 WL 571845, at *9 (S.D. Ohio Feb. 13, 2013) (); Hickman v. Silva, No.C-12-209, 2012 WL 4973041, at *2 (S.D. Tex. Oct. 17, 2012) (); Arnold v. Miller, No. 08-234, 2008 WL 4545339, at *2 (S.D. Ill. Oct. 10, 2008) (). Accordingly, plaintiff's first motion to compel will be denied.
In his second motion to compel, plaintiff seeks an order compelling defendant Dinsa to provide various documents in response to his Request for Production of Documents. Plaintiff seeks documents such as his MDOC medical and mental health files, the audio recording of the panel hearing, a video of the cell transfer, and similar prison documents. Defendant Dinsa responded that, as an employee of a third party contractor, he does not have possession or control of these documents, and that plaintiff's request should be directed to the MDOC. Generally, a party cannot be forced to produce documents that are not in its custody, control, or possession. See La Chemise Lacoste v. The Alligator Co., Inc., 60 F.R.D. 164, 171 (D. Del. 1973); United States v. Dempster Bros., Inc., 31 F.R.D. 207, 208 (E.D. Tenn. 1962). A party's duty under Rule 34 extends to documents not only in the party's possession, but also in the party's control. Under Rule 34, "control" means "the legal right to obtain the documents requested upon demand." Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). Here, there is no evidence that the documents sought by plaintiff are within defendant Dinsa's control. The documents are records maintained by the MDOC. Defendant Dinsa is not an officer or employee of the MDOC, and has no legal right to exercise control over the MDOC or demand that it provide him with its records. To be sure, defendant Dinsa could seek to obtain these documents and recordings from the MDOC through a subpoena, but he has no obligation to do so under Rule 34. Rather, his duty under Rule 34 is only "to seek that information reasonably available to him from his employees, agents, or others subjectto his control." Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992). Defendant Dinsa is not obligated to fund the costs of plaintiff's discovery. See Smith v. Yarrow, 78 Fed. Appx. 529, 544 (6th Cir. 2003). Pursuant to MDOC regulations, plaintiff may obtain a copy of his own prison medical records, see MDOC POLICY DIRECTIVE 03.04.108, ¶ S (Jan. 17, 2011), and plaintiff has a right to inspect and obtain copies of all his medical records under federal law, see 45 C.F.R. § 164.524. Because plaintiff may as easily obtain these records, and because defendant Dinsa is not obligated to fund plaintiff's litigation efforts, it is not appropriate to compel defendant to produce plaintiff's medical records, which are in the possession of a third party. See Mitchell v. Haviland, 2:09-cv-3012, 2013 WL 5587404, at *6 (E.D. Cal. Oct. 10, 2013); Washam v. Evans, No. 2:10CV00150, 2011 WL 2559850, at *3 (E.D. Ark. June 29, 2011) (citing cases).
In his final motion, plaintiff seeks an order compelling compliance with a subpoena directed to (former) defendant Heyns, which seeks: (1) the complete medical and mental health records of plaintiff; (2) all critical incident reports involving plaintiff; (3) video recordings of any forced cell moves; and (4) the audio recording or a written transcription of the February 15, 2012 panel hearing. Heyns has filed a motion to quash the subpoena, arguing that it was not properly served, seeks irrelevant information, and is unduly burdensome. As to plaintiff's medical records, as noted above plaintiff may, under the MDOC's policy directives, obtain a copy of these records himself. Because plaintiff may readily obtain these records on his own by following this policy directive, requiring a nonparty to provide the records would be unduly burdensome. See Graham v. Casey's Gen'l Stores, Inc., 206 F.R.D. 251, 254 (S.D. Ind. 2002). With respect to the critical incident reports and forced cell moves, as Heyns correctly points out the only claims remaining before the Court are plaintiff's claims against defendant Dinsa alleging improper reduction of his lithium andunnecessary forced medication. The documents and recordings sought by plaintiff are not relevant to these claims, and thus need not be produced by...
To continue reading
Request your trial