Victor v. Reynolds et al

Filing 135

OPINION and ORDER Denying Plaintiff's 114 Objections to 112 Report and Recommendation, Adopting 112 Report and Recommendation, and Denying Plaintiff's 104 Motion for Default. (Response due by 2/20/2024.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL VICTOR,
Plaintiff,
v.
KIMBERLY REYNOLDS, and ADVANCED
CORRECTIONAL HEALTHCARE, INC.,
Defendants.
__________________________________________/

Case No. 1:20-cv-13218
Honorable Thomas L. Ludington
United States District Judge
Honorable Patricia T. Morris
United States Magistrate Judge

OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS TO REPORT AND
RECCOMENDATION, ADOPTING REPORT AND RECCOMENDATION, AND
DENYING PLAINTIFF’S MOTION FOR DEFAULT
In April 2019, Plaintiff Michael Victor suffered a grand mal seizure minutes after being
released from Otsego County Jail (OCJ) and after he alleges OCJ officials denied him his antiseizure medication, upon the direction of Advanced Correctional Healthcare, Inc. (ACH)
practitioners. For the past two years, the Parties have been deadlocked in a discovery dispute. At
its core, the dispute concerns access to information—namely any records or documentation which
may show who, if anyone, from ACH received a call from OCJ on April 28, 2019 concerning
Plaintiff’s medication. On one hand, Plaintiff has little evidence aside from his own testimony that
any ACH healthcare practitioner was ever called. On the other hand, after Plaintiff stipulated to
Otsego County’s dismissal, ACH is the only party who would have access to such evidence.
Accordingly, this Court has directed Defendants to produce discovery responsive to Plaintiff’s
claims that ACH was contacted and has sanctioned Defendants for their unforthcoming disclosures
in the form of provisional adverse inferences.

The most recent installment of this discovery dispute takes the form of Plaintiff’s second
Motion for Default Judgment. In October 2023, Magistrate Judge Patricia T. Morris recommended
this Court deny Plaintiff’s second Motion for Default Judgment because she concluded Defendants
did not violate this Court’s discovery orders by failing to produce payroll timesheets for ACH
medical practitioners whom Defendants identified as on call to service OCJ throughout the sixmonth period surrounding April 28, 2019.
Plaintiff filed one Objection to Judge Morris’s Report and Recommendation. But the
Objection does not identify a flaw in Judge Morris’s conclusion and, to the extent Plaintiff does
identify a flaw, he has not identified clear error. Accordingly, Plaintiff’s Objection will be
overruled, Judge Morris’s Report and Recommendation will be adopted, and Plaintiff’s second
Motion for Default Judgement will be denied. However, Plaintiff has shown that Defendants can
produce the at-issue payroll timesheets, which may confirm whether any identified practitioner
serviced OCJ on the morning of April 28. Thus, Defendants will be directed to produce the
timesheets of all primary and backup practitioners they recently identified. And if these time sheets
further corroborate Defendants’ claims that no ACH practitioner received a call from OCJ nor
worked at OCJ on April 28, 2019, this Court will rescind the prior provisional inference to the
contrary.
I.
A. Factual Background
Just after midnight on April 28, 2019, Plaintiff Michael Victor was arrested by Gaylord
Police Department (GPD) Officer Blake Huff for disorderly conduct and resisting while Plaintiff
was intoxicated. ECF No. 38 at PageID.432. Officer Huff brought Plaintiff to the Otsego County
Jail (OCJ) and contacted Plaintiff’s family. Id. Around 1:00 AM on April 28, 2019, Plaintiff’s

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mother arrived at OCJ to deliver Plaintiff’s Keppra—an anti-seizure medication Plaintiff took
twice daily to treat his epilepsy. Id.; ECF Nos. 70 at PageID.1421; 45-5 at PageID.541; 45-11 at
PageID.598, 601, 609; 70 at PageID.1421–22. Plaintiff’s mother gave the Keppra to Officer Huff
and stressed that, without his medication, Plaintiff “would have a seizure” because he had severe
epilepsy and his last dose of medication was taken almost eleven hours earlier. 1 ECF Nos. 38 at
PageID.433; 45-11 at PageID.606. Officer Huff gave the medication—and conveyed its
importance—to either Trey Leach or Tony Tallent, the only two Otsego County Correctional
Officers working at OCJ at the time. Id.; see also ECF No. 45-5 at PageID.541–42. And around
4:00AM, Officers Leach and Tallent were relieved by Officer Scott Musall and Officer Joe
Sullivan. See ECF No. 49-6 at PageID.805.
But the medication never made it to Plaintiff. ECF No. 38 at PageID.433. And, minutes
after Plaintiff was released from OCJ around 11:30 AM on April 28, 2019, “Plaintiff suffered a
grand mal seizure,” 2 fell face-first onto the cement, and broke his jaw. Id. at PageID.435–36. The
Parties dispute much of what happened while Plaintiff was confined at OCJ before his seizure.
Plaintiff alleges that OCJ personnel told him his mother dropped off his medication and
that they “were going to contact the nurse to see if [he] could take it.” ECF No. 45-11 at
PageID.610. Plaintiff further testified that he asked for his medication multiple times, but Officer
Sullivan eventually told him that the “nurse did not okay it” because Plaintiff “had alcohol in [his]

1

Indeed, Plaintiff avers he suffered seizures while he was previously confined at OCJ and did
not have access to his Keppra. ECF No. 45-11 at PageID.596–97.
2
A grand mal, or “tonic-clonic,” seizure is common among those diagnosed with epilepsy and
“causes a loss of consciousness and violent muscle contractions.” Tonic-Clonic (Grand Mal)
Seizure, MAYO CLINIC (Dec. 12, 2023), https://www.mayoclinic.org/diseases-conditions/grandmal-seizure/symptoms-causes/syc-20363458 [https://perma.cc/EFB5-L2PZ]. This type of seizure
has two stages. The first “tonic” phase involves a loss of consciousness and lasts for 10-20 seconds.
The second “clonic” phase involves convulsions and usually lasts one or two minutes. Id.
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system.” Id. at PageID.611. Plaintiff also testified that OCJ officers taunted him with his
medication by “shaking it at [him] telling [him] they ha[d] his meds, but [he] [couldn’t] have
them.” Id. at PageID.617.
Importantly, OCJ does not have its own nurses or medical staff. Instead, it—like many
other correctional facilities throughout the country—contracts with Advanced Correctional
Healthcare, Inc. (ACH) for inmate healthcare. 3 ACH provides each jail it services with a mid-level
practitioner who can prescribe medication and is on call 24/7, 365 days per year. ECF No. 69-2 at
PageID.1376, 1381; see also ECF No. 45-2 at PageID.511. And if the mid-level on-call practitioner
cannot be reached, ACH typically provides at least two backup practitioners for the jail to contact.
ECF No. 69-2 at PageID.1382–84.
Plaintiff alleged in his Complaint that Nurse Kimberly Reynolds was the ACH practitioner
responsible for denying his medication. See generally ECF No.38. Officer Leach testified that,
although he cannot remember whether she was called, Nurse Reynolds would have been the ACH
practitioner called on April 28, 2019. ECF No. 45-7 at PageID.564. Indeed, Defendants’ initial
answers to Plaintiff’s first interrogatories confirmed “ACH Nurse Kimberly Reynolds was on call
during the time Plaintiff was in [OCJ] on April 28, 2019.” ECF No. 45-8.
But Defendants quickly claimed this answer was incorrect. Nurse Reynolds submitted an
affidavit of non-involvement, ECF No. 45-3; testified under oath that she was not on call and did
not know Plaintiff, ECF No. 45-5 at PageID.529; and submitted payroll timesheets which
confirmed she did not log work hours for payment on April 28, 2019, ECF No. 45-3 at PageID.523.

3

ACH advertises as “the nation’s largest jail contract management company” with contracts with
over 370 correctional institutions across 22 states, servicing over 34,000 incarcerated individuals
daily. About, ADVANCED CORRECTIONAL HEALTHCARE, INC., https://www.advancedch.com/about
https://www.advancedch.com/about (last visited Jan. 14, 2024) [https://perma.cc/9UBB-X7CN].
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Defendants have since identified nurse practitioner Courtney Brinkman as the primary ACH oncall practitioner scheduled to serve OCJ on April 28, 2019, ECF Nos. 70 at PageID.1421; 70-2 at
PageID.1444, 1450–51. But Defendants produced Nurse Brinkman’s phone records which confirm
that she did not receive any calls from OCJ that day, ECF No. 70 at PageID.1425–26, and produced
her payroll timesheet which confirms she never submitted a request for payment of any services
rendered that morning. ECF No. 74-7. What happened at OCJ while Plaintiff was confined on
April 28, 2019 remains unclear.
B. Procedural Posture and Discovery Disputes
On December 8, 2020, Plaintiff filed a Complaint alleging Eighth Amendment deprivations
against (1) Otsego County, (2) Officer Huff, (3) the City of Gaylord, (4) ACH, and (5) Nurse
Reynolds, seeking to hold each Defendant jointly and severally liable. 4 ECF No. 38. On December
2, 2021—nearly one year after the Complaint was filed—Plaintiff stipulated to the dismissal of
Officer Huff and the City of Gaylord without prejudice. ECF No. 29. And on January 19, 2022,
Plaintiff stipulated to the dismissal of Otsego County with prejudice. 5 ECF No. 36. Notably,
Counsel for the only remaining Defendants—ACH and Nurse Reynolds—did not sign either
stipulated dismissal. See ECF Nos. 29; 36.

4

Notably, the contract between ACH and Otsego County included parallel indemnification
provisions, in which ACH agreed to “hold harmless and indemnify the COUNTY and SHERIFF
(together with their respective employees) against any loss or damage . . . solely caused or
necessitated by the negligent, reckless, intentional, or deliberately indifferent conduct of ACH or
its employees, which is related to medical care provided by ACH” and Otsego County agreed to
hold harmless and indemnify ACH (together with its respective employees) against any loss or
damage . . . solely caused or necessitated by the negligent, reckless, intentional, or deliberately
indifferent conduct of the COUNTY or its employees, which is related to medical care provided
by ACH.” ECF No. 45-2 at PageID.516 (emphasis in original).
5
The heading of Plaintiff’s Amended Complaint, filed after Otsego County’s stipulated dismissal,
incorrectly lists Otsego County as a party. See ECF No. 38 at PageID.429. Plaintiff has since
corrected his pleading headings. See, e.g. ECF Nos. 48 at PageID.655; 54 at PageID.842.
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The discovery disputes began in 2022, shortly after Otsego County was dismissed. On
February 25, 2022, Defendants filed a motion for summary judgment. ECF No. 45. Plaintiff
responded that Defendants’ motion should be denied for incomplete discovery and filed a Civil
Rule 56(d) Motion, ECF No. 47, along with a motion to compel discovery, ECF No. 54. Both
discovery motions were referred to Magistrate Judge Patricia T. Morris. ECF No. 57. On June 14,
2022, Judge Morris granted Plaintiff’s motion to compel, which sought the to depose an ACH
representative who could provide:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

ACH’s Policies, procedures, and practices for healthcare providers (including an oncall provider) being staffed to provide medical care, including providing medication,
at OCJ from January 1, 2019 to January 1, 2021. ECF No. 54-3 at PageID.882.
ACH’s staffing information (including the identities and days worked) for on-call
providers scheduled to be on call and who was on call at OCJ from January 1,
2019 to January 1, 2021. Id.
ACH’s supervisory policies, procedures and practices for any medical providers (either
on-call provider or other healthcare providers) who provided medical care at OCJ from
January 1, 2019 to January 1, 2021. Id.
All instances of complaints of either ACH providing inadequate medical care or
having inadequate staffing for a prison where ACH was contracted by a prison
facility in the Midwest region since 2017. Id. at PageID.883
Instances where an on-call ACH provider was contacted after hours by OCJ personnel
regarding medical care from January 1, 2018 to January 2, 2021, including the names
of both the ACH and OCJ employees involved. Id.
ACH’s complete staffing schedule for OCJ from January 1, 2019 to January 1,
2021, including the identities of all ACH employees who worked during this time.
Id.
Policies, procedures and practices for OCJ personnel to contact ACH regarding medical
care (including providing medication) needed at the facility. Id.
Training for ACH medical personnel regarding their duties and work schedules as it
pertains to medical care provided at OCJ. Id.

Additionally, Judge Morris granted Plaintiff’s Rule 56(d) motion and ordered Defendant to
produce:
(1)
(2)

A representative from ACH who provided active management of the contract between
OCJ and ACH at the time of the April 28, 2019, for Plaintiff to depose.
Either (A) phone records of all persons who were working or on call from the time
Plaintiff was booked until he was released on April 28, 2019, or (B) authorization and
any information necessary to provide Plaintiff the ability to access those records form
any phone provider.
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(3)

The staffing schedules and any confirming documentation that staff listed on the
schedule “actually worked” at the time indicated on the schedule, from the time
Plaintiff was booked until he was released on April 28, 2019.

ECF No. 64 at PageID.1321–22 (the “June 2022 Discovery Order). This Court accordingly denied
Defendants’ motion for summary judgement and extended discovery. ECF No. 67.
On July 5, 2022, Plaintiff deposed Dr. Jill Bresnahan—ACH’s selected representative and
Vice President of Medical Operations. See ECF No. 69-2. But Dr. Bresnahan did not “provide
active management of the contract” between OCJ and ACH on April 28, 2019 because she was
not employed with ACH at the time. See id. at PageID.1367, 1398; see also ECF No. 83 at
PageID.2006. As Defendants explained, Dr. Bresnahan currently oversees ACH’s contract with
OCJ and her predecessor, who managed the contract in April 2019, no longer works for ACH.
ECF No. 107 at PageID.2554. Dr. Bresnahan testified that ACH does not have many of the policies
or procedures sought by Plaintiff and did not produce any documents responsive to the categories
outlined in Plaintiff’s subpoena. 6 See ECF No. 69-2 at PageID.1354–66. Instead, Dr. Bresnahan
explained that the jails set their own policies for staffing and contacting ACH practitioners. Id. at
PageID.1354, 1364, 1370. Indeed, Dr. Bresnahan testified that each ACH practitioner sets their

6

Specifically, Dr Bresnahan (1) testified ACH does not have policies or procedures for its
healthcare providers, ECF No. 69–2 at PageID.1354; (2) did not produce any staffing information
from 2019 to 2021, aside from confirming that Nurse Brinkman was on call on April 28, 2019, id.
at PageID.1355; (4) testified ACH does not have supervisory policies, procedures, or practices for
any practitioners who were on call at OCJ from 2019 to 2021, id. at PageID.1355–56; (5) did not
produce any complaints against ACH for inadequate staffing or medical care, claiming she did not
have access to this information, id. at PageID.1356–57; (6) did not produce any information
concerning an on-call ACH practitioner being contacted after hours by OCJ from 2019 to 2021,
id. at PageID.1362–63; (7) did not produce an ACH staffing schedule for OCJ from 2019 to 2021,
id. at PageID.1363; (8) testified ACH does not have policies or procedures for OCJ personnel to
contact ACH for medical care, because each institution sets their own policies, and although ACH
provides templates or model contact procedures, Dr. Bresnahan did not produce any templates, id.
at PageID.1364–65; and (8) did not produce any documents reflecting training ACH practitioners
receive regarding their duties and schedules pertaining to medical care at OCJ. Id. at 1365–66.
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schedule by working with the serviced jail—not ACH. Id. at PageID.1370, 1376. 1379. Thus, Dr.
Bresnahan testified, ACH does not proactively create or maintain “schedules” for its practitioners;
it instead only reactively knows when a practitioner worked for a serviced jail only if a practitioner
logs their worked time into ACH’s online payroll system, Paycom. Id. at PageID1377.
Dr. Bresnahan also identified Nurse Practitioner Courtney Brinkman as the ACH primary
on-call practitioner for OCJ on April 28, 2019. See id. at PageID.1380. On July 13, 2022,
Defendants explained that Nurse Brinkman no longer worked for ACH but provided Plaintiff with
her cell phone number and signed, notarized authorization to allow Plaintiff to obtain her phone
records. ECF No. 107 at PageID.2554. And on August 9, 2022, Defendant supplemented its
production to further include Nurse Brinkman’s subpoenaed phone records which confirmed she
neither called OCJ nor received a call from OCJ on April 28, 2019. Id. at PageID.2555–56; see
also 107-7 at PageID.2621–28. And, before producing her phone records, Defendants produced
Nurse Brinkman’s timesheets, which further reflected that she did not service OCJ on April 28,
2019. See ECF Nos. 107 at PageID.2555; 107-6 at PageID.2615.
C. Plaintiff’s First Motion for Default Judgment and Subsequent Discovery
On October 5, 2022, Plaintiff filed his first motion for default judgment, arguing
Defendants violated the June 2022 Discovery Order by (1) selecting Dr. Bresnahan as a deponent
because she was unfamiliar with the case and was not forthcoming with the subpoenaed
documentation; (2) failing to adequately produce phone records or information necessary for
Plaintiff to access those records for ACH practitioners; and (3) failing to adequately produce
staffing information. ECF No. 69. That same month, Defendants filed a motion to sanction Plaintiff
for pursuing “frivolous and unsupported claims” because, in their view, discovery confirmed that

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OCJ personnel did not call any ACH practitioner—including Defendant Nurse Reynolds—on
April 28, 2019. ECF No. 77.
Both Plaintiff’s first motion for default judgment and Defendants’ motion for sanctions
were referred to Judge Morris. ECF Nos. 71; 81. On December 13, 2022, Judge Morris issued a
report (R&R) recommending this Court deny both motions. ECF No. 83. As to Plaintiff’s first
Motion for Default Judgment, Judge Morris found two “true violations” of the June 2022
Discovery Order:
(1) Defendant’s “failure to provide documented ‘instances of complaints’
regarding ‘inadequate medical care,’” id. at PageID.2022; and
(2) Defendant’s “failure to provide the scheduling information and the phone
records of backup practitioners[.]” Id. (emphasis added)
But Judge Morris concluded that a default judgment was unwarranted and, instead, recommended
this Court extend discovery further “to allow [Defendants] to more fully comply” with the June
2022 Discovery Order and “warn them that further deficiencies may lead to harsher sanctions,
including default judgment.” Id. at PageID.2025.
On January 5, 2023, this Court overruled Plaintiff’s objections, adopted the R&R, 7 denied
Plaintiff’s first motion for default judgement, and denied Defendants’ motions for sanctions and
summary judgment. ECF No. 86 (the “January 2023 Discovery Order”). This Court directed
Defendants to cure the two “true” discovery violations on or before January 30, 2023, and,
importantly, further sanctioned Defendants for these violations by directing them to take following
facts as “provisionally” established:

7

Notably, Judge Morris also concluded that Plaintiff’s first motion for default judgment was
untimely because Plaintiff “sat on the[] issues for well over a month” before the discovery cutoff
and “waited another [23] days before bringing the[] issues to the Court’s attention.” ECF No. 83
at PageID.2010. But this Court held this finding was contrary to law, and adopted Judge Morris’
R&R to the extent it denied Plaintiff’s first motion for default judgment on the merits. ECF No.
86 at PageID.2058–59.
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(1) ACH has had some instances of complaints that it either provided inadequate
medical care or had inadequate staffing for a prison facility in the Midwest
region since 2017[;] [and]
(2) One of the corrections officers supervising Plaintiff’s detention called one of
ACH’s employees to seek permission to administer Plaintiff’s medication.
Id. at PageID.2063, 2065 (emphasis added). As this Court explained, these facts were only
provisionally established “until conclusive evidence proved otherwise,” ECF No. 101 at
PageID.2497, and “because further discovery might narrow or clarify the details.” ECF No. 86 at
PageID.2062, n. 2. In addition to these provisional inferences, this Court warned Defendants that
their next discovery violation “will result in sanctions, including default judgment, contempt, or
both.” Id. at PageID.2065 (emphasis in original).
In efforts to timely cure their first discovery violation—failing to provide complaints of
inadequate staffing or medical care—Defendants explained that “ACH does not keep a repository
of civil complaints filed against” it but, nevertheless, Defendants requested a “Loss Run Report”
from ACH’s third party claims administrator, was in the process of redacting the Report, and
assured that production was forthcoming. ECF No. 107 at pageID.2558. Less than two weeks later,
Defendants provided the redacted Loss Run Report which contained the documented instances of
complaints regarding inadequate medical care or staffing within the Midwest. Id. at PageID.2561.
In efforts to timely cure their second discovery violation—failing to produce scheduling
and phone record information for primary and backup on-call practitioners—Defendants produced
a “Staffing Matrix” prepared by ACH’s IT department which listed nine medical professionals,
including four primary and backup ACH practitioners—who serviced OCJ from February 4, 2019–
July 17, 2019. 8 ECF No. 87-4 at PageID.2106. Notably, the Matrix identified Nurse Brinkman as

8

The identified primary and backup on-call practitioners were Courtney Brinkman, Jill Nocerini,
Joseph Mashni, and Wilma Kagarise. ECF No. 87-4 at PageID.2106. The identified Regional
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the primary on-call practitioner from February 4, 2019 through June 28, 2019 and Nurse Jill
Nocerini as the backup practitioner for this period. See id. Having already produced Nurse
Brinkman’s phone records, Defendant explained that Nurse Nocerini no longer works for ACH
but provided her last known postal address, email address, and cell phone number. Id.
Accordingly, on January 30, 2023, Defendants’ deadline to cure their discovery violations,
Defendants filed notice of their compliance with this Court’s discovery orders which detailed their
production and expressed their view that all discovery violations were cured. ECF No. 91.
D. Plaintiff’s Second Motion for Default Judgment
In Plaintiff’s view, Defendants’ production was still inadequate. On July 27, 2023, nearly
six months after Defendants’ filed their notice of compliance, Plaintiff filed a second Motion for
Default Judgment arguing Defendants were still in violation of this Court’s discovery orders
because (1) the Staffing Matrix did not identify which practitioners were on call each day within
the relevant six-month period and Defendants provided no other confirming scheduling
documentation such as timesheets for these practitioners; and (2) Defendants did not produce
Nurse Nocerini’s phone records. ECF No. 104.
Defendants responded that Plaintiff’s second Motion for Default Judgement largely
repeated the same arguments Plaintiff made—and this Court rejected—in his first motion for
default judgment. ECF No. 107 at PageID2563–66 (arguing Dr. Bresnahan’s deposition was
violative). Defendants further argued the Staffing Matrix complied with this Court’s discovery
orders because it identified the two on-call practitioners on April 28, 2019—Nurse Brinkman and
Nurse Nocerini. See id. at PageID.2566–68. Defendants argued they did not need to specify the

Medical Director was Travis Schamber and the identified regional nurse managers were Bonnie
Putz, Laurina Boryca, Sandi Lehman, and Amanda Miller. Id.
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“times” these practitioners worked because the nurses were “on call” and thus inherently were
working at all times. See id. Defendants also argued they were never obliged to produce Nurse
Nocerini’s phone records; instead they were only obligated to provide information that would
enable Plaintiff to obtain these records, and their production of Nocerini’s name, postal address,
cell phone number, and email address was sufficient. Id. at PageID.2569.
This Court referred Plaintiff’s second Motion for Default Judgment to Judge Morris. ECF
No. 105. On October 19, 2023, Judge Morris issued an R&R recommending the denial of
Plaintiff’s second Motion for Default Judgment because Plaintiff did not show Defendants violated
discovery Orders. ECF No. 112 at PageID.2715 (“Defendants cannot give what they don’t have.”).
Plaintiff filed his sole objection to the R&R on November 2, 2023. ECF No. 114. Plaintiff
argues that Defendants did violate this Court’s discovery orders because they can and have
produced payroll timesheets which further confirm whether a practitioner worked a particular shift.
ECF No. 114. See also ECF Nos. 107-6 at PageID.2615 (Nurse Brinkman’s timesheet); 107-6 at
PageID.2616 (Nurse Reynold’s timesheet). Indeed, Plaintiff argues that ACH’s IT Department
likely relied on such information when creating the Staffing Matrix. ECF No. 114 at PageID.2738.
Defendants responded that Plaintiff’s Objection is improper because it does “nothing more
than [express] disagreement with the R&R[.]” ECF No. 116 at PageID.2749. Defendants point out
that they already produced Nurse Reynolds’s and Nurse Brinkman’s timesheets which demonstrate
that neither worked at OCJ on April 28, 2019. Id. at PageID.2749–55. Defendants argue that the
non-production of timesheets does not violate this Court’s order to produce documentation
confirming that on-call staff “actually worked” on certain dates because Nurse Nocerini and the
other identified practitioners, did not “actually work” on April 28. Id. at PageID.2757–58. Indeed,
Defendants argue that Nurse Nocerini’s timesheets are irrelevant because she was the backup

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practitioner and the primary practitioner—Nurse Brinkman—never received a call from OCJ, so
Nurse Nocerini would not have been called either. Id.
II.
Under Civil Rule 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 parties must state any objections with
specificity within a reasonable time. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted).
Any objection which fails to identify specific portions of the R&R will not be reviewed. See
Howard v. Sec'y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991) (“A general objection
to the entirety of the magistrate's report has the same effects as would a failure to object. The
district court's attention is not focused on any specific issues for review[.]”); Aldrich v. Bock, 327
F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“A general objection . . . is not sufficient to alert the court
to alleged errors on the part of the magistrate judge. An ‘objection’ that does nothing more than
state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been
presented before, is not an ‘objection’ as that term is used in this context.”). Additionally, parties
cannot “raise at the district court stage new arguments or issues that were not presented” before
the R&R was issued. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
If a party makes a timely, specific objection, “[t]he 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). When reviewing a report and recommendation 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 is free to 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., No. 1:20-CV-11290, 2021 WL 4145771, at *2 (E.D. Mich. Sept. 13, 2021).
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III.
Plaintiff’s sole objection will be overruled because it merely expresses disagreement with
Judge Morris’s conclusions by repeating the same arguments raised in his second Motion for
Default Judgment, without identifying a flaw in Judge Morris’ analysis. To the extent Plaintiff’s
objection does identify a flaw, it will still be overruled because Judge Morris did not clearly err in
concluding that Defendants did not violate this Court’s discovery orders.
As a threshold matter, Plaintiff’s objection is improper. Judge Morris concluded—after
reviewing all briefings and discovery—that the Staffing Matrix satisfied Defendant’s obligation to
produce “staffing schedules and any confirmation documentation that staff listed on the schedule
actually worked at the time indicated on the schedule, e.g., timesheets, pay stubs, or the like[.]”
ECF No. 64 at PageID.1322. In other words, Judge Morris found no underlying discovery
violations to subject Defendants to sanctions—let alone the remedy of a default judgment. ECF
No. 112 at PageID.2715. Plaintiff objects and argues Defendants were obligated to produce
timesheets or other documents to further confirm the information within the Staffing Matrix. ECF
No. 114 at pageID.2737–39. But this was the very argument Plaintiff made in his second Motion
for Default Judgment, which Judge Morris considered and rejected. Compare ECF No. 104 at
PageID.2520 (“What is conspicuously missing [from Defendants’ production] is timesheets,
payroll logs, or any other related documents that would confirm the employees that would have
been responsible for medical operations on the night in question.”) with ECF No. 114 at
PageID.2737 (arguing the Staffing Matrix leaves Plaintiff with “no way of confirming which of
the employees . . . worked on the night in question” and that timesheets are needed to “definitively
indicate whether an employee worked”). Aside from repeating his arguments, Plaintiff cites the
R&R only four times—within headings, boilerplate language, or a broad recitation of the

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procedural history. See ECF No. 114 at PageID.2727, 2729, 2734. Indeed, Plaintiff’s Objection
reads like a reply—which Plaintiff notably did not file—in support of his second Motion for
Default Judgment, countering the claims in Defendants’ Response, ECF No. 107, rather than
identifying flaws within Judge Morris’s R&R. See ECF No. 114 at PageID.2734–39. Accordingly,
Plaintiff’s Objection will be overruled. Lewis v. Sole L., PLLC, 629 F. Supp. 3d 731, 735 (E.D.
Mich. 2022), motion for relief from judgment denied, 652 F. Supp. 3d 886 (E.D. Mich. 2023) (“A
district court is ‘not obligated to reassess the same arguments presented before the Magistrate
Judge with no identification of error in the Magistrate Judge's recommendation.’” (quoting Nelson
v. Saul, No. 19-CV-12964, 2021 WL 688583, at *4 (E.D. Mich. Feb. 23, 2021))).
Further, to the extent Plaintiff’s Objection does identify a flaw in the R&R, it does not
identify clear error. True, timesheets were contemplated in this Court’s June 2022 Scheduling
Order. ECF No. 64 at PageID.1322. Recall the June 2022 Discovery Order required Defendants to
produce “for the relevant time period (booking until release), staffing schedules and any
confirmation documentation that staff listed on the schedule actually worked at the time indicated
on the schedule, e.g., time[]sheets, pay stubs, or the like, within 45 days of this order.” Id. The
flaw in Plaintiff’s argument—that Defendants violated this order by not producing the timesheets
of backup practitioner Nurse Nocerini—is that it assumes Nurse Nocerini “actually worked” on
April 28, 2019. But Defendants have repeatedly expressed their contention that she did not. See
ECF Nos. 91; 107 at PageID.2567; 116 at PageID.2752–53.
The Parties have seemingly different perspectives on what the term “actually worked”
means, as the term is used in the June 2022 Discover Order. Plaintiff interprets the term broadly
and argues that, since Nurse Nocerini was identified as the backup on-call practitioner on April
28, 2019, she could have received a call, was “actually working” that day and, thus, Defendants

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were obligated to produce confirming timesheets. See ECF No. 114 at PageID.2737–38.
Defendants interpret the term narrowly and argue that, since Nurse Nocerini was not the primary
on-call practitioner and was thus not responsible for routine in-person visits to OCJ from the
February through June 2019, she was not “actually working” on April 28, 2019, so Defendants
need not produce her timesheets. See ECF No. 107 at PageID.2567. Both views are plausible. And
this Court’s June 2022 Discovery Order did not define what the term “actually worked” meant,
although perhaps it should have. Accordingly, in the absence of a clear definition, Judge Morris
did not clearly err in finding that Defendants had sufficiently produced scheduling information for
all those who “actually worked” on April 28, 2019.
Yet, the question remains: who withheld Plaintiff’s Keppra on April 28, 2019? Defendants
continue to claim, that OCJ personnel never called anyone from ACH that morning, implying that
OCJ personnel are to blame. See ECF Nos. 107 at PageID.2548 (“ACH . . . had no involvement
with [Plaintiff] at [OCJ]. They were not asked to and did not see him. No ACH staff were called
or contacted about him.”); ECF No. 107-8 (arguing “there can be no serious dispute of fact that
the ACH on-call provider was never called on the night [Plaintiff] was detained at [OCJ] despite
a policy and procedure being in place to do so.”). Defendants support this claim by citing the
testimony and timesheets of Nurse Reynolds (who Defendants argue wouldn’t have been working
on April 28, 2019 in the first instance) and the timesheets and phone records of Nurse Brinkman,
the identified on-call practitioner. But, even if sufficiently supported, this claim ignores the fact
that this Court sanctioned Defendants’ prior discovery violations by provisionally establishing that
“[a]t least one of the [OCJ] corrections officers called at least one of ACH’s employees for approval
to administer Plaintiff’s seizure medication.” ECF No. 86 at PageID.2065.

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Even though Defendants did not violate this Court’s discovery orders, Plaintiff has a point:
where are the timesheets for Nurse Nocerini and the other practitioners Defendants identified in
their Staffing Matrix? Defendants have not produced them, in accord with their view that these
practitioners did not “actually work” on April 28, 2019 and would not have been contacted by
OCJ. ECF No. 107 at PageID.2569. But Dr. Bresnahan testified that OCJ set its own policy for
contacting ACH practitioners. ECF No. 69-2 at PageID.1364. And multiple OCJ officers testified
that they would call any one of up to three ACH practitioners whose numbers were, at any given
time, posted within the OCJ control room. See ECF Nos. 45-10 at PageID.590; 49-5 at PageID.800;
49-6 at PageID.806. So, for example, it is plausible that an OCJ officer could have called Nurse
Nocerini, despite her backup status. Although Defendants sufficiently provided Plaintiff with
Nurse Nocerini’s contact information to enable Plaintiff to subpoena her phone records,
Defendants have also demonstrated the ability to produce timesheets for ACH practitioners.
Assuming Nurse Nocerini wanted to be compensated, her timesheet would confirm whether she
provided any services to OCJ on April 28, 2019. Accordingly, although Plaintiff’s Objection will
be overruled, the R&R will be adopted, and Plaintiff’s second Motion for Default Judgment will
be denied, Defendant will be directed to supplement its production to include Nurse Nocerini’s
payroll timesheet, as well as the timesheets of Joseph Mashni and Wilma Kagarise—the other
identified on-call practitioners assigned to OCJ from February through July 2019. 9 See FED. R.
CIV. P. 26(e)(1)(B); Trapp v. Fed. Express Corp., 647 F. Supp. 3d 567, 571 (E.D. Mich. 2022)
(denying sanctions but, under the court’s broad discretion to supervise discovery, requiring

9

Although the Staffing Matrix also identified five other medical professionals, ECF No. 104-2 at
PageID.2533, Defendants explained that the Regional Medical Director and the four identified
regional nurse managers “were not on-call for OCJ meds” and, unlike the four identified on-call
practitioners, would not have plausibly received a call from OCJ personnel on April 28, 2019 to
approve Plaintiff’s medication. See ECF No. 107 at PageID.2568.
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plaintiff to supplement disclosures when doing so would “shine a light on any evidence lying in
wait” and when plaintiff could produce the evidence “with ease”); see also Everlight Elecs. Co. v.
Nichia Corp., No. 12-CV-11758, 2015 WL 412184, at *1 (E.D. Mich. Jan. 30, 2015) (“The duty
to supplement discovery does not cease upon the close of the applicable discovery period. Courts
have held that discovery is incomplete . . . if there is an objectively reasonably likelihood that the
additional . . . information could substantially affect or alter the opposing party’s . . . trial
preparation.” (internal quotations omitted)).
If the timesheets for Nocerini, Mashni, and Kagarise do not reflect that they worked at OCJ
on April 28, 2019, the provisionally established fact that “[a]t least one of the corrections officers
supervising Plaintiff’s detention called one of ACH’s employees to seek permission to administer
Plaintiff’s medication[,]” ECF No. 86 at PageID.2065, will no longer be provisionally established,
and Plaintiff will be left to his proofs.
IV.
Accordingly, it is ORDERED that Plaintiff’s Objection to Judge Morris’s Report and
Recommendation, ECF No. 114, is OVERRULED.
Further, it is ORDERED that Judge Morris’s Report and Recommendation, ECF No. 112,
is ADOPTED.
Further, it is ORDERED that Plaintiff’s second Motion for Default Judgment, ECF No.
104, is DENIED.
Further, it ORDERED that Defendants are DIRECTED to produce to Plaintiff and file on
the record, on or before February 20, 2024, payroll timesheets for (1) Jill Nocerini; (2) Joseph
Mashni; and (3) Wilma Kagarise reflecting whether these identified on-call practitioners logged
time for payment on April 28, 2019 at OCJ, similar to the timesheets Defendants already produced,

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see ECF Nos. 107-6 at PageID.2615 (Nurse Brinkman); 107-6 at PageID.2616 (Nurse Reynolds).
If these timesheets do not show that any of these practitioners logged work hours at OCJ on April
28, 2019, this Court will no longer provisionally establish that “[a]t least one of the corrections
officers supervising Plaintiff’s detention called one of ACH’s employees to seek permission to
administer Plaintiff’s medication.” See ECF No. 86 at PageID.2065.
This is not a final order and does not close the above-captioned case.
Dated: February 5, 2024

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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