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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL KITCHEN, 

Plaintiff, Case No. 14-12883 

Honorable Victoria A. Roberts 

v. 

 

DANIEL HEYNS, et al., 

 

Defendants. 

________________________/ 

ORDER OVERRULING PLAINTIFF=S OBJECTIONS TO [Doc. 118] AND UPHOLDING 

THE MAGISTRATE JUDGE=S OPINION AND ORDER DENYING PLAINTIFF=S 

MOTION TO COMPEL DISCOVERY [Doc. 116] 

 Plaintiff Michael A. Kitchen (“Kitchen”) filed a motion to compel discovery of various 

documents from Defendants Stephenson, Steece, Gambati, Hightower and Finco. On June 12, 

2017, Magistrate Judge David R. Grand entered an opinion and order DENYING the motion. 

Kitchen timely objected; these objections are fully briefed. 

 When reviewing objections to a Magistrate Judge’s order on a pretrial, non-dispositive 

issue, the Court must modify or set aside the part of the decision that is determined to be “clearly 

erroneous or contrary to law.” 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); United States v. 

Curtis, 237 F.3d 598, 602-03 (6th Circ. 2001). The “clearly erroneous” standard is only 

applicable to a Magistrate Judge’s factual findings; the “contrary to law standard” is applicable 

to the Judge’s legal conclusions. Visteon Global Techs. v. Garmin Int’l, Inc., 903 F. Supp. 2d 

521, 524-525 (E.D. Mich. 2012). 

 A finding is considered clearly erroneous where “although there is evidence in support, 

the reviewing court... is left with the definite and firm conviction that a mistake has been 
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committed.” United States v. Gypsum Co., 333 U.S. 364, 395 (1948). If it is possible to have two 

or more permissible views of evidence, then the Magistrate Judge’s decision is not considered 

“clearly erroneous.” Anderson v. City of Bessemer City, N., 470 U.S. 564, 573-574 (1985). 

 On the other hand, “a legal conclusion is considered contrary to law when it fails to apply 

or misapplies relevant statutes, case law, or rules of procedure.” Robinson v. Allstate Ins. Co., 

No. 09-10341, 2011 WL 3111947, at 2 (E.D. Mich. July 2016, 2011). Ultimately, when 

reviewing a Magistrate Judge’s legal conclusions, the Court is required to use its independent 

judgment. Id. 

Kitchen submitted a request for production of various documents. He sought: Special 

Problem Offender Notices, personal information about other prisoners, misconduct charges filed 

against other prisoners, as well as all grievances and complaints filed against Defendants. He 

also requested access to all emails and communications between Defendant Steece and other 

prison officials concerning prisoner transfers. 

The Defendants objected. They said they did not have custody or control over the 

documents. Kitchen stated that even if the Defendants do not have custody over the requested 

information, they utilized the information to facilitate his transfer. Additionally, the Defendants 

objected to allowing Kitchen access to all emails and communications between Defendant Steece 

and other prison officials regarding transfers; Defendants say such communications are not 

relevant to the action and disclosure could jeopardize prison safety. In responding to Kitchen’s 

request, Defendant Steece searched his emails and found no communications regarding 

Kitchen’s transfer. 

The Magistrate Judge ruled in Defendants’ favor. His decision cannot be said to be either 
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clearly erroneous or contrary to law. The Magistrate Judge stated that Kitchen only provided a 

conclusory argument that the Defendants would have control over the documents through the 

Michigan Department of Corrections (“MDOC”). Specifically, Kitchen argued that when he 

subpoenas documents, the subpoenas are referred to the Michigan Attorney General’s Office for 

objections. That office refers the subpoenas to defense counsel and counsel for the Attorney 

General. Kitchen goes on to argue that that will result in a dispute between Kitchen’s attorney 

and defense counsel. Based on this sequence of events as Kitchen describes, Kitchen argued that 

the Defendants will ultimately have possession or control of the requested documents. 

Magistrate Judge Grand correctly decided that Kitchen’s argument failed to show actual 

possession or control by Defendants. In fact, Kitchen seems to understand that he must request 

documents from the MDOC, which he has already done. 

Additionally, Magistrate Judge Grand points out that under Fed. R. Civ. P. 34, “a request 

for production may only seek documents or tangible things which are in the possession, custody, 

or control of the party upon whom the request is served.” In his objections, Kitchen says: (1) 

“Magistrate Judge Grand’s definition of “possession” or “control” is too narrow and will only 

result in the Defendants or the MDOC being permitted to “filibuster” Kitchen’s request [Doc. 

118, Pg 2]; and (2) Defendant Steece’s search of his emails for communications regarding 

Kitchen’s transfer was insufficient as a response to Kitchen’s request for all emails and 

communications regarding prisoner transfers [Doc. 118, Pg 2]. 

The Court carefully reviewed the record and the case law cited in both parties’ briefs as 

well as Magistrate Judge Grand’s order. The Magistrate Judge correctly decided that Kitchen 

failed to show that the Defendants were in possession or control of the requested documents. As 
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Magistrate Judge Grand concluded, the Court is unable to order any of Kitchen’s thirteen 

requests for production. 

 Moreover, the Court finds Magistrate Judge Grand appropriately decided Defendant 

Steece’s response was sufficient. The Magistrate Judge decided that under Fed. R. Civ. P. 

26(b)(1), a request for production must be proportional to the needs of the case. Kitchen’s 

request to obtain all communications to or from Steece discussing, planning and/or seeking the 

transfer of any prisoner has unlimited breadth and is not proportional to the needs of the case. 

Defendant Steece searched his emails for responsive documents concerning Kitchen’s transfer. 

The Judge correctly decided that this was adequate to fully comply with his discovery 

obligations. 

 Magistrate Judge Grand’s decision is neither clearly erroneous nor contrary to law. The 

Court OVERRULES Kitchen’s objections and UPHOLDS the Magistrate Judge’s opinion and 

order. 

IT IS ORDERED. 

/s/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

October 2, 2017 

The undersigned certifies that a copy of this 

document was served on the attorneys of record 

and Michael Kitchen by electronic means or U.S. 

Mail on October 2, 2017. 

s/Linda Vertriest 

Deputy Clerk