Victor v. Reynolds

649 F.Supp.3d 499

Michael VICTOR, Plaintiff, v. Kimberly REYNOLDS and Advanced Correctional Healthcare, Inc., Defendants.

Case No. 1:20-cv-13218

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

Signed January 5, 2023

James B. Rasor, Rasor Law Firm, Royal Oak, MI, Andrew John Laurila, Giroux Trial Attorneys, Southfield, MI, for Plaintiff.

Devlin K. Scarber, Jeffrey Bomber, Madeline Young, Ronald W. Chapman, Chapman Law Group, Troy, MI, for Defendant Kimberly Reynolds.

Devlin K. Scarber, Jeffrey Bomber, Ronald W. Chapman, Chapman Law Group, Troy, MI, for Defendant Advanced Correctional Healthcare, Inc.

OPINION AND ORDER (1) OVERRULING PLAINTIFF'S OBJECTIONS, (2) ADOPTING REPORT AND RECOMMENDATION, (3) DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT, (4) DECLARING THAT DEFENDANTS VIOLATED COURT ORDER, (5) DENYING DEFENDANTS' MOTION FOR SANCTIONS, (6) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, (7) GRANTING LEAVE FOR SUMMARY JUDGMENT, (8) DIRECTING DEFENDANTS TO TAKE FACTS AS TRUE, (9) ADJOURNING SCHEDULING ORDER, AND (10) DIRECTING DEFENDANTS TO PRODUCE DISCOVERY

THOMAS L. LUDINGTON, United States District Judge

This matter is before this Court upon Plaintiff's objections to the Magistrate Judge's Report and Recommendation (R & R). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), this Court has reviewed de novo those portions of the R & R to which Plaintiff has objected.

Plaintiff's objections will be overruled, the R & R will be adopted, and Defendants will be sanctioned. They will also be put on notice that their next violation of any order of this Court will result in the more severe sanctions of default judgment, contempt, or both.

I.

Plaintiff Michael Victor alleges Defendants violated his Fourteenth Amendment rights and were grossly negligent by depriving him of seizure medication while he was in the Otsego County Jail. Victor v. Reynolds, 582 F. Supp. 3d 516, 519 (E.D. Mich. 2022). He alleges he suffers from epilepsy and his mother brought his medication to the Otsego County Jail. ECF No. 1 at PageID.4. Plaintiff's mother allegedly asked Gaylord Police Officer Blake Huff to ensure that the medication was administered to Plaintiff, then Huff responded, "that because Plaintiff was intoxicated he would have to clear it with OCJ's nurse, Defendant Kimberly Reynolds." Id. at PageID.4-5. Plaintiff was released from custody at approximately 11:45 AM on April 28, 2019. Id. at PageID.6. Within minutes, he suffered a grand mal seizure, causing a broken jaw and "invasive surgery resulting in his mouth being wired shut for a month among various other damages." Id.

Plaintiff filed a motion to compel production of numerous phone records, staffing schedules, and other documents. ECF No. 54. Yet two months earlier, which was also two months before discovery would end, Defendants filed a motion for summary judgment. ECF No. 45.

In June 2022, Magistrate Judge Patricia T. Morris resolved Plaintiff's motion to compel, directing Defendants to produce relevant evidence on or before July 29, 2022. See ECF No. 64 (granting in part Plaintiff's motion to compel, Rule 56(d) motion, and motion to extend discovery). Because of that missing evidence, Plaintiff could not "present facts essential to justify [his] opposition" to Defendant's first motion for summary judgment. See FED. R. CIV. P. 56(d). So, three days before discovery would end, Defendants' first motion for summary judgment was denied, and the Parties were permitted to file a second round of motions for summary judgment on or before October 12, 2022. ECF No. 67 at PageID.1327. Discovery was scheduled to end on September 12, 2022. ECF No. 65.

Then Defendants again skirted a number of their discovery obligations. See, e.g., ECF No. 83 at PageID.2007 ("Doctor Bresnahan brought almost none of the documents that Victor requested in his deposition notice."); id. at PageID.2016 ("ACH fails to establish that it could not [provide] documentation of '[a]ll instances of complaints . . . of' ACH either 'providing inadequate medical care or having inadequate staffing for a prison facility in the Midwest region since 2017.' " (quoting ECF No. 69-2, PageID.1356-57)); id. at PageID.2018 ("Defendants violated (ECF No. 64) by providing neither staffing information, nor phone records (or identifying information that would enable [Plaintiff] to subpoena these records), of the two other individuals who were on call while [Plaintiff] was detained."). See generally ECF No. 69.

Seeking a sanction, Plaintiff filed a motion for default judgment. ECF No. 69. The same day, Defendants filed their second motion for summary judgment. ECF No. 70. Then, Defendants filed a motion for Rule 11 sanctions against Plaintiff. ECF No. 77. The latter two motions were referred to Judge Morris for a report and recommendation. ECF Nos. 71; 81.

On October 13, 2022, Judge Morris issued an R & R based on two "true violations of this Court's order": Defendants failed (1) "to provide documented 'instances of complaints' regarding 'inadequate medical care' " and (2) "to provide the scheduling information and phone records of the backup practitioners." ECF No. 83 at PageID.2022. Therefore, she recommended that this Court "extend discovery, find that the Defendants partially violated the Court's order in (ECF No. 64), and warn Defendants that further violations . . . may result in more severe sanctions, including default judgment." Id. at PageID.2013. And she recommends that this Court "deny Defendants' Rule 11 motion for sanctions." Id. at PageID.2025.

Although the R & R provides that the Parties may object to and seek review of the R & R within 14 days of service, Defendants have not objected. Id. at PageID.2033; accord 28 U.S.C. § 636(b)(1)(C). They have therefore waived their rights to appeal Judge Morris's findings. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health & Hum. Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Plaintiff, however, has filed two objections. See generally ECF No. 84. Specifically, he argues (1) his motion for default judgment was timely, ECF No. 84 at PageID.2042-44, and that (2) Judge Morris should have recommended default judgment, ECF No. 84 at PageID.2044-47.

II.

A.

Under Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See FED. R. CIV. P. 72(b)(2). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." FED. R. CIV. P. 72(b)(3). The parties must state any objections with specificity within a reasonable time. Thomas v. Arn, 474 U.S. 140, 151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (citation omitted). Failure to file specific objections is a waiver of any further right of appeal. Id. at 155, 106 S.Ct. 466; Howard, 932 F.2d at 505; Walters, 638 F.2d at 950. Parties may not "raise at the district court stage new arguments or issues that were not presented" before the magistrate judge's final R & R. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).

When reviewing an R & R de novo, this Court must review at least the evidence that was before the magistrate judge. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, this Court may accept, reject, or modify the Magistrate Judge's findings or recommendations. FED. R. CIV. P. 72(b)(3); Peek v. Comm'r of Soc. Sec., 585 F. Supp. 3d 1014, 1017 (E.D. Mich. 2021).

B.

Plaintiff first objects that Judge Morris erred in finding that Plaintiff's Motion for Default Judgment was untimely. ECF No. 84 at PageID.2042-44.

But that objection will be overruled because Plaintiff "did not make that argument to Judge Morris." Austin v. Stapleton, No. 1:22-CV-11895, 2022 WL 4286847, at *3 (E.D. Mich. Sept. 15, 2022) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).

C.

Yet the finding of untimeliness was contrary to law. See 28 U.S.C. § 636(b)(1). The R & R found that Plaintiff "filed a Rule 37(b) motion for default judgment about two months after becoming aware that the Defendants violated an order compelling discovery, and almost an entire month after the close of discovery." See ECF No. 83 at PageID.2008-13. The R & R also found "no justification for [Plaintiff]'s tardiness," id. at PageID.2010, and opined that Plaintiff might have delayed filing the motion to shut Defendants' window for filing a new motion for summary judgment, id. at PageID.2011 n.2. For these reasons, the R & R recommends denying Plaintiff's Motion for Default Judgment as untimely or, alternatively, denying the Motion and "impos[ing] less severe sanctions." Id. at PageID.2008.

An improper standard of review was applied. The R & R provides that a Rule 37(b) motion requires a case-by-case analysis of whether the motion was filed "without unreasonable delay." ECF No. 83 at PageID.2009 (first citing THEC Int'l v. Cohen Mohr LLP, 301 F. Supp. 3d 1, 11-12 (D.D.C. 2018); then quoting Williams v. Nationwide Ins., No. 12-13904, 2014 WL 12659422, at *5 (E.D. Mich. Apr. 29, 2014); and then citing Long v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008)). Many "[c]ourts have routinely held that 'unreasonable delay may render such a motion untimely.' " Williams, 2014 WL 12659422, at *4 (citations omitted) (quoting Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994)). But not the Sixth Circuit Court of Appeals. Cf. Fieldturf, Inc. v. Sw. Recreational Indus., Inc., 212 F.R.D. 341, 344 (E.D. Ky. 2003) ("The Sixth Circuit Court of Appeals has expressly rejected the Seventh Circuit's position regarding the timeliness of Rule 37 motions in Kasuri." (footnote omitted) (citing Kasuri v. St. Elizabeth Hosp. Med. Ctr., 897 F.2d 845, 855-866 (6th Cir. 1990))).

Like Rule 37(c), Rule 37(b) "is silent on the issue of timing."¹ See FED. R. CIV. P. 37(b); Kasuri, 897 F.2d...