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Kitchen v. Winn

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

September 19, 2019

MICHAEL KITCHEN, Plaintiff,
v.
O’BELL T. WINN, et al., Defendants.

          George Caram Steeh Judge.

          OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR HEARING & ORAL ARGUMENT ON REQUEST FOR SPOLIATION OF EVIDENCE SANCTIONS (DE 79)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE.

         I. OPINION

         A. Plaintiff initiated this case on May 19, 2017.

         Michael Kitchen (#189265), is currently in the Michigan Department of Corrections’ (MDOC’s) custody at Michigan Reformatory (RMI) in Ionia, Michigan. (DE 43.) On May 19, 2017, while incarcerated at the Earnest C. Brooks Correctional Facility (LRF), Kitchen filed the instant lawsuit in pro per against ten named defendants, each of whom is identified as being located at the Saginaw Correctional Facility (SRF). (DE 1 ¶¶ 5-7.) In addition, he listed as Defendants “Unknown Supervisors or Guards.” (DE 1 ¶ 8.)

         Each of the ten named defendants is represented by Michigan’s Attorney General. (DE 11.)

         B. Plaintiff’s April 25, 2019 amended complaint, which names 18 Defendants, is the operative pleading.

         On April 25, 2019, Plaintiff filed an amended complaint against 18 Defendants, the 10 original Defendants plus 8 additional Defendants: (1) Todd Massick, (2) Markus Huizar, (3) Jermer (Jemar) Rozier, (4) Russell Vittitow, (5) Michael Smith, (6) Captain (Vicki) Close, (7) Sgt. Biddle, and (8) Sgt. (Todd) Wendt. (DE 61.) Massick, Huizar, Rozier, Vittitow, Close and Wendt have appeared via counsel. (DE 67-73.)

         Smith and Biddle have yet to appear.

         C. Plaintiff now requests a hearing and oral argument on his request for spoliation sanctions.

         In the operative pleading, Plaintiff describes the alleged events of January 17, 2017, when he claims to have been strip searched by Trombley and Glynn at the direction of Massick and Close (and/or with their knowledge, approval, authorization, acquiescence). (DE 61 ¶ 61.) Approximately 2.5 years later, on June 21, 2019, Plaintiff deposed Defendant Todd Massick regarding those events. (See DE 79 at 13-18.) Of particular import is Massick’s deposition testimony that he “received an anonymous kite indicating that [Plaintiff was] in possession of a weapon[, ]” “[did not] have the kite[, ]” and “once the search is completed and there’s nothing found, [he] discard[s] them.” (DE 79 at 14-16.)

         On August 19, 2019, nearly two months after the deposition, Plaintiff filed a motion for hearing & oral argument on request for spoliation of evidence sanctions. (DE 79 at 1-5.) Not having received a timely response from Defendants, I entered an order requiring them to show cause why the Court should not grant: (1) Plaintiffs request for hearing and oral argument; and, (2) the underlying relief sought.

         Defendants timely filed their show cause response. (DE 84.) Having explained why their counsel “incorrectly believed that the present motion was . . . stricken[, ]” Defendants substantively argue that Masick “did not have a duty to preserve the anonymous kite he received, nor did he have a culpable mind to destroy evidence.” (DE 84 at 4, 6-12.)

         The Court has not ordered Plaintiff to reply to Defendants’ delayed response, and it does not conclude that such a filing is necessary to rule upon ...


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