UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVID ST. ANN, 

 Plaintiff 

v. 

TODD MCLEAN, DEAN 

POTILA, SAM MORGAN, 

THOMAS HAYNES, and 

KELLY BUCZEK, 

 Defendants. 

 

Case No. 5:15-CV-11770 

District Judge Judith Levy 

Magistrate Judge Anthony P. Patti

___________________________________/ 

ORDER (1) DENYING PLAINTIFF’S MOTION TO REQUEST 

ADDITIONAL INTERROGATORIES (DE 43) AND (2) GRANTING IN 

PART AND DENYING IN PART PLAINTIFF’S MOTION FOR STAY OF 

DEFENDANTS’ MOTION/BRIEF FOR SUMMARY JUDGMENT AND 

ADDITIONAL REQUEST FOR EXTENSION OF TIME FOR RETRIVAL 

[SIC] OF DISCOVERY (DE 44), AND PLAINTIFF’S SECOND MOTION 

FOR STAY OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 

(DE 47) 

A. Background 

Plaintiff David St. Ann (#741290) is a state prisoner currently incarcerated 

at the Michigan Department of Corrections (MDOC) Muskegon Correctional 

Facility (MCF). On May 15, 2015, while incarcerated at the MDOC’s Saginaw 

Correctional Facility (SRF) in Freeland, Michigan, Plaintiff filed the instant 

lawsuit pro se against (1) “Arus” McLean, described as an SRF Assistant Resident 
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Unit Supervisor (ARUS); (2) “RUM” Zummer, described as an SRF Resident Unit 

Manager (RUM); (3) “Arus” Polita,1

 described as an SRF ARUS; and (4) Obell 

Winn, described as the SRF Warden. (See DE 1). 

On November 6, 2015, this Court entered an order granting Plaintiff’s 

motion to amend and directing the Clerk of the Court to delete Defendants 

Zummer and Winn but add Defendants Morgan and Haynes, both described as an 

SRF ARUS. (DEs 5, 8.) On October 4, 2016, Judge Levy entered an opinion and 

order denying Plaintiff’s objection and adopting my report and recommendation to 

grant in part and deny in part Defendants’ motion for summary judgment. (See

DEs 16, 27, 28, 29). As a result of that order, Plaintiff’s only remaining claims 

were those against Defendants McLean, Potila, Morgan and/or Haynes “which 

concern the limited subject of plaintiff remaining at Level IV (or maximum 

security/disciplinary unit) following the February 14, 2014 expiration of his 

detention and loss of privileges[.]” (DE 29 at 4.) 

On October 31, 2016, this Court entered an order granting Plaintiff’s second 

motion to amend the complaint and directing the Clerk of the Court to add 

Defendant Buczek and Count IV against Defendant Buczek for retaliation in 

violation of the Eighth and Fourteenth Amendments. (DEs 24, 25, 30.) On 

December 14, 2016, the Court entered a Scheduling Order, providing, in pertinent 

                                                            

1 The Court notes that this Defendant has been referred to as both “Polita” and 

“Potila” interchangeably throughout the various filings in this matter. 
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part, that discovery must be completed on or before June 14, 2017, and that the 

parties shall file dispositive motions by July 14, 2017. (DE 40.) The dispositive 

motion deadline was subsequently extended to August 11, 2017, on motion by 

Defendants. (DE 46.) 

On August 11, 2017, Defendants McLean, Potila, Morgan, Haynes and 

Buczek filed their motion for summary judgment. (DE 48.) Plaintiff filed a 93-

page response to that motion on September 18, 2017, and 267 pages of 

exhibits/attachments. (DEs 50, 51.) 

B. The Instant Motions 

Currently before the Court is Plaintiff’s March 22, 2017 motion to request 

additional interrogatories, in which he seeks leave to serve additional 

interrogatories on all Defendants beyond the “25 interrogatory limit.” (DE 43.) 

Plaintiff also filed a June 7, 2017 motion for extension of time for discovery and to 

“Stay Defendants’ Motion/Brief for Summary Judgment,” in which he states that 

he is awaiting additional discovery and asks to “extend time for retrival [sic] of 

discovery (three months)” and to stay Defendants’ motion for summary judgment 

until September 14, 2017. (DE 44.) On August 4, 2017, Plaintiff filed a second 

motion to stay Defendants’ motion for summary judgment, asking the Court to stay 

Defendants’ motion for summary judgment until March 14, 2018 for the reasons 

stated in his first motion and “in order to further gather discovery pursuant to Fed. 
4 

R. Civ. P. 56(f), and to fully undergo convalesce [sic] due to hospitalization and 

surgery.” (DE 47.) Defendants have not responded to Plaintiff’s motions. 

C. Analysis 

1. Plaintiff’s Motion to Request Additional Interrogatories is 

DENIED 

Plaintiff requests to serve additional interrogatories on Defendants and states 

that “due to the 25 interrogatory limit, [he] was restricted from asking these 

additional questions.” (DE 43 at 1-2.) 

Federal Rule of Civil Procedure 33 permits a party to serve no more than 

twenty-five written interrogatories, including all discrete subparts, on any other 

party without leave of court. Fed. R. Civ. P. 33(a)(1). It is within the Court’s 

broad discretion to determine the proper scope of discovery, including the number 

of interrogatories any party may serve. Fed. R. Civ. P. 26(b)(2). However, Rule 

26(b)(2)(C) requires a court to limit discovery if: (1) the requested discovery is 

unreasonably cumulative or duplicative or can be obtained from a more convenient 

or less expensive source; (2) the party seeking discovery has had ample 

opportunity to obtain the information sought; or (3) the burden or expense 

outweighs the likely benefit of the discovery. Fed. R. Civ. P. 26(b)(2)(C). Leave 

to serve additional interrogatories has been denied where the requesting party 

failed to make a “particularized showing” why the additional discovery is 

necessary. See Burket v. Hyman Lippitt, P.C., No. 05-72110, 05-72171, 05-72221, 
5 

2007 WL 2421136, at *1 (E.D. Mich. Aug. 23, 2007) (Majzoub, MJ) (noting that 

“[a]n important factor in the Court’s consideration of such a request is whether the 

party has shown the specific content of the additional interrogatories that it seeks to 

serve”); see also Aluma-Form, Inc. v. Geotek, LLC, No. 13-cv-2028-JPM/tmp, 

2014 WL 12607091, at *2 (W.D. Tenn. Apr. 4, 2014) (collecting cases stating that 

the party seeking leave to serve additional interrogatories must make a 

“particularized showing” as to why the additional discovery is necessary). 

Here, Plaintiff has not addressed the criteria set forth in Rule 26(b)(2)(C), 

nor has he made the particularized showing necessary to support his motion. Also 

significant to the Court’s analysis is the fact that Plaintiff has not presented to the 

Court the number of interrogatories he wishes to propound nor the content of those 

interrogatories. Accordingly, the Court is not in a position to determine that the 

requested information is necessary to prove Plaintiff’s claims. Instead, he makes 

vague and conclusory statements that “[n]ewly recent information has been 

disclosed through the discovery process ... that requires additional answers,” 

Defendant’s responses to interrogatories have been “vague” and “in need of 

clarification,” and Plaintiff has “additional questions that he would like to ask[.]” 

(DE 43 at 1-2.) Plaintiff’s motion to request additional interrogatories (DE 43) is 

accordingly DENIED. 

2. Plaintiff’s Motions for Stay of Defendants’ Motion for Summary 

Judgment and to Extend Time for Discovery (DEs 44, 47), 
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Construed in Part as Motions to Compel, are GRANTED IN 

PART and DENIED IN PART 

Plaintiff filed a motion for stay of Defendants’ motion for summary 

judgment and to extend time for discovery “pursuant to Fed. R. Civ. P. 56(f)”2

 and 

Rule 16(b)(4) on June 7, 2017, and a second motion for stay of Defendants’ motion 

for summary judgment on August 4, 2017. (DEs 44, 47.) Plaintiff’s motions 

request an extension of the time for discovery and to file a motion for summary 

judgment pursuant to Fed. R. Civ. P. 16(b)(4). Plaintiff asserts in his June 7, 2017 

motion that he is “awaiting additional affidavits from various witnesses,” 

requesting “clearer/better pictures,” “awaiting additional discovery that was 

requested through subpoenas,” “is still in the process of waiting for additional 

discovery” from a FOIA request, and that he would file a motion to compel “[a]fter 

all of the above mentioned avenues are exhausted[.]” (DE 44 at 1-4.) He states in 

his August 4, 2017 motion that “Defendants’ unwillingness to provide him with 

discovery material and unwillingness to cooperate with the discovery 

process/procedures of this Court’s Scheduling Order ... has led to Plaintiff’s 

inability to fully acquire the necessary information/material in order to fully gather 

evidence and draft his motion for summary judgment.” (DE 47 at 7) (emphasis 

added). 

                                                            

2 Federal Rule of Civil Procedure 56 was amended effective December 1, 2010 and 

one of the revisions was moving the provision that was Rule 56(f) into its current 

location as Rule 56(d). Fed. R. Civ. P. 56, 2010 Amendment comments. 
7 

The Court first notes that there was no motion for summary judgment 

pending at the time Plaintiff’s motions for stay were filed on June 7, 2017 and 

August 4, 2017. Accordingly, Plaintiff’s motions cannot be considered as Rule 

56(d) motions. See Dennis v. Canadian Nat’l Ry. Co., No. 09-2312-BBD-cgc, 

2011 WL 13161589, at *3 n.3 (“That paragraph does not constitute a Rule 56(f) 

affidavit because it was executed months before the summary judgment motion 

was filed and does not address the discovery provide by IC in the intervening 

time.”). Rather, Defendants filed their motion for summary judgment on August 

11, 2017. (DE 48.) Plaintiff responded to that motion for summary judgment on 

September 18, 2017 with a 93-page response brief and 267 pages of 

exhibits/attachments. (DEs 50, 51.) Tellingly, Plaintiff did not file a Rule 56(d) 

(formerly Rule 56(f)) affidavit in response to Defendants’ motion for summary 

judgment indicating that he needs further discovery to develop the issues addressed 

in the motion or otherwise to respond to the motion. Accordingly, Defendants’ 

motion for summary judgment (DE 48) is ripe and ready for consideration by the 

Court. To the extent Plaintiff’s motions (DEs 44, 47) are motions to stay 

consideration of Defendants’ motion for summary judgment (DE 48), those 

motions are DENIED. 
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The Court finds that Plaintiff’s motions here (DEs 44, 47) are more properly 

construed as motions to compel discovery responses and to extend the time for 

Plaintiff to file his motion for summary judgment. (See DE 47 at 7 (“this has led 

to Plaintiff’s inability to fully acquire the necessary information/material in order 

to fully gather evidence and draft his motion for summary judgment”) (emphasis 

added)). First, addressing the construed motions to compel, in light of Plaintiff’s 

extensive response to Defendants’ motion for summary judgment filed September 

18, 2017, and the voluminous exhibits filed by Plaintiff in support of his response, 

it is not clear to the Court whether Plaintiff is still awaiting responses or responsive 

documents to any of his discovery requests, or if Plaintiff has received all of the 

discovery he sought within the Scheduling Order’s discovery deadline. Further, as 

noted above, Plaintiff did not file a Rule 56(d) affidavit in response to Defendants’ 

motion for summary judgment indicating that he needs further discovery to 

develop the issues addressed in Defendants’ motion, and that motion is ready for 

consideration by the Court. In any event, noting that Defendants have not filed a 

response to either of Plaintiff’s motions, and to the extent Plaintiff contends that he 

is awaiting timely requested discovery and/or documents needed to support his

motion for summary judgment, the Court will GRANT in part Plaintiff’s 

construed motions to compel and order Defendants to supplement any outstanding 
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discovery responses within three weeks, or by December 19, 2017, unless the 

discovery requests at issue are already complete. 

Second, addressing Plaintiff’s motions to extend the time to file his motion 

for summary judgment, Rule 16(b)(4) provides that “[a] schedule may be modified 

only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(a)(4). To 

the extent any of Plaintiff’s claims survive Defendants’ pending motion for 

summary judgment currently under consideration by the Court, the Court finds that 

Plaintiff will have satisfied the “good cause” showing required to extend the 

deadline to file his own motion for summary judgment. Accordingly, if Judge 

Levy ultimately decides to deny Defendants’ motion for summary judgment after 

considering my report and recommendation (DE 48), Plaintiff may file his own 

motion for summary judgment no later than 21 days thereafter. 

 IT IS SO ORDERED. 

Dated: November 28, 2017 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

Certificate of Service 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on November 28, 2017, electronically and/or by U.S. Mail. 

 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 
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