United States District Court, E.D. Michigan, Southern Division
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.
Plaintiff initiated this case on May 19, 2017.
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.)
the ten named defendants is represented by Michigan’s
Attorney General. (DE 11.)
Plaintiff’s April 25, 2019 amended complaint, which
names 18 Defendants, is the operative pleading.
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.)
and Biddle have yet to appear.
Plaintiff now requests a hearing and oral argument on his
request for spoliation sanctions.
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.)
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.
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.)
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 ...