Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al

Filing 60

ORDER denying 43 Motion to Compel. Plaintiffs are ORDERED to file a response to Correct Heatlth's request for fees within 14 days of service of this Order. If they do not oppose, they are ORDERED to confer with respondents to reach an agreement on costs and, within 14 days of service of this Order, file a notice of their stipulation to costs with the Court. Signed by Magistrate Judge Christopher L. Ray on 03/18/2019. (evk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of
Jimmie L. Alexander, Sr.,
Plaintiffs,
v.

)
)
)
)
)
)
)
)

CV418-099

)
CORIZON HEALTH, INC., et al.,
Defendants.

)
)
)

ORDER
Jimmie Alexander died after a delay in treatment of a blood clot
while a detainee at Chatham County Detention Center (CCDC). Doc. 261. After complaining of pain in his leg the evening of May 22, 2016, he
was seen by medical staff but was not immediately admitted to the
infirmary. Defendants argue that he was moved to an observation room
in “receiving and discharge,” because there were no infirmary beds
available. See Depo. Mark Dambach, LPN at 104-132. Alexander was
not seen until 3:00 p.m. the next day, when the Corizon Health physician
evaluated him and determined he required emergency care. See Depo.
Guy Augustin, M.D. at 161-166. Despite being rushed to the emergency

room for surgery the evening of May 23, 2016, Alexander died of
complications arising post-surgery. See Depo. Anthony Avino, M.D. at
30-35, 52, 77 & 103. Plaintiffs contend that, because Alexander was not
admitted to the infirmary where he could be seen by on-duty medical
providers, his treatment was delayed by 15 hours until he could be seen
by the Corizon Health physician. They further contend that infirmary
beds must have opened up during the 15 hours he was not being seen by
a medical provider in the observation room, and that Alexander should
have been admitted when they opened.
Based on deposition testimony, plaintiffs believe that the
admissions and discharges to the infirmary were memorialized in
writing. Doc. 43 at 5-6. The nighttime RN on duty on May 22, 2016,
testified that Corizon Health providers regularly kept a “discharge book”
reflecting “the time [patients] came in, and the time they left” while she
worked at the CCDC. See Depo. Montine Stokes, RN at 40-42. Plaintiffs
have been on the hunt for the discharge book since, seeking it from
Corizon Health (which has since stopped providing medical services to
CCDC), the Sheriff and Chatham County (who contracts out medical
services at CCDC and thus has no access to medical records), and Correct
2

Health (a non-party which took over the contract to provide medical
services to CCDC). In their discovery responses, these respondents again
and again made clear that they did not have the infirmary discharge
book. Doc. 43 at Exhs. 9, 12, 15 & 17 (responses by the Sheriff and
County); Exhs. 18, 20 & 23 (responses by Corizon Health); Exhs. 16 & 26
(affidavit of “no records” by non-party Correct Health).
Plaintiffs thus have moved to compel production of the long-sought
infirmary discharge logs. Doc. 43. The relief they seek in bringing their
motion, however, is unclear. They explain:
This motion seeks to resolve the issue of who has the requested
records of infirmary discharge book for the [ ] two day period, May
22-23, 2016. Or if the records no longer exist, then who destroyed
the records. None of the entities who would have possession of
these records has shed any light on where this book is. If [ ] none
of the entities have the records, then Plaintiffs are entitled to know
what happened to them. Also, if appropriate, findings of fact and
inferences may be appropriate concerning the availability of room
at the infirmary on the night of May 22nd and day of May 23rd. DS
Waters of Am., Inc. v Fontis Water, Inc., 2012 U.S. Dist. LEXIS
192614, 11-12 (N.D. Ga. 9/12/2012) [spoliation of evidence by
destruction of documents]. A Court Order is needed to bring this
issue to a head so that the involved entities who may have the
document: (1) Corizon, (2) Sheriff and (3) Correct Health, represent
to this Court that they do not have the [documents] and where they
contend it is located. Representations to the Court carry much
greater weight than representations made to Plaintiffs’ counsel.
Also, by making this motion, Plaintiffs’ counsel cannot then be
accused of being dilatory on this discovery issue.
3

Doc. 43 at 13. A motion to compel, of course, is not the appropriate vehicle
to seek redundant discovery responses or an affidavit to support
responses already submitted under the assurance of Fed. R. Civ. P. 11.
Given respondents’ unambiguous responses in both discovery and
their responses to this motion, it is clear that all disclaim having
“possession, custody, or control” over the infirmary discharge logs, if they
ever existed. So, there is nothing to compel. The motion (doc. 43) must
be DENIED.

Plaintiffs, however, have indicated they will seek

spoliation sanctions if the infirmary discharge logs are determined to be
unavailable, if they were destroyed or otherwise lost. Doc. 43 at 14 (“if it
is determined that the records have been destroyed, then findings of fact,
such as an adverse inference may be appropriate.”). So, plaintiffs will be
given 14 days to determine whether they wish to proceed with filing a
motion for sanctions in light of respondents’ representations that the
infirmary logs, if they ever existed, are not in their possession, custody,
or control. If they fail to timely file any such motion, the Court will deem
the issue resolved.
One final matter. While the Court appreciates the reason plaintiffs
had for believing the infirmary discharge logs exist(ed), it is skeptical of
4

their reasons for bringing a motion to compel. After all, counsel for
respondents had represented, repeatedly, in writing and subject to Rule
11, that they did not have the logs. Correct Health contends that the
motion to compel was frivolous, and that under the mandatory feeshifting provision of Rule 37 they are entitled to an award of costs.
Doc. 56; see Fed. R. Civ. P. 37(a)(5)(B) (“If the motion is denied, the court
. . . must, after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or deponent who
opposed the motion its reasonable expenses incurred in opposing the
motion, including attorney’s fees.”).
Plaintiffs have not responded to Correct Health’s request for fees.
They are, however, entitled to an opportunity to be heard. Id. Plaintiffs
are therefore ORDERED to file, within 14 days of service of this Order,
their opposition (if any) to an award of costs to respondents for their time
expended in opposing the motion to compel. If they do not oppose, they
are ORDERED to confer with respondents to reach an agreement on
costs and, within 14 days of service of this Order, file a notice of their
stipulation to costs with the Court.

5

SO ORDERED, this 18th day of March, 2019.
______________________________
________________________
_
_
CHRISTOPHER L. RAY
HRISTOPHER
ST H R
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

6