Jones v. Barnhart et al

Filing 168

Interim ORDER DENYING IN PART and Holding in ABEYANCE in Part Plaintiff's 149 Motion for Sanctions--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN JONES,
Plaintiff,
v.

Case No. 2:10-cv-12114
District Judge Arthur J. Tarnow
Magistrate Judge Anthony P. Patti

PATRICIA BARNHART, et
al.,
Defendants.
___________________________________/
INTERIM ORDER DENYING IN PART AND HOLDING IN ABEYANCE
IN PART PLAINTIFF’S MOTION FOR SANCTIONS (DE 149) AND
SETTING A SUPPLEMENTAL BRIEFING SCHEDULE
This matter is before the Court for consideration of Plaintiff’s motion for
sanctions (DE 149), Defendant Barnhart’s response (DE 156), and Plaintiff’s reply
(DE 165). The basis for Plaintiff’s motion is that Defendant Barnhart failed to
provide the Auburn B housing unit log book (“log book”) as required by this
Court’s February 27, 2015 order. (DE 94.) Instead, Defendant Barnhart informed
Plaintiff that the log book was destroyed in April 2015, in compliance with
Michigan Department of Corrections’ (“MDOC”) normal retention policy,
although Defendant Barnhart denies having control over the log book at the time of
its destruction, since she ceased to be employed by MDOC long ago. Put another
way, Barnhart’s former employer destroyed the log book over a month after the

Court issued an order that it be produced to Plaintiff. Additionally, Plaintiff
contends that Defendant Barnhart has failed to answer certain interrogatories in
violation of the Court’s order. Plaintiff asserts that these issues entitle him to a
finding of liability against Defendant Barnhart, an order that the unanswered
interrogatories are deemed admitted, that Defendant Barnhart not be allowed to
testify contrary to the log book and interrogatories, an imposition of costs and
sanctions, and any other relief that is just and equitable. Defendant counters that
prior counsel at this time ignored the Court’s order because he mistakenly thought
it was based on an already dismissed case of the same name. Defendant asserts
that the proper avenue for Plaintiff to follow is to seek a spoliation instruction.
The parties, represented by counsel, appeared before me for a hearing on this
matter on April 19, 2017. For the reasons stated on the record, I took Plaintiff’s
argument related to the log book under advisement, and asked for supplemental
briefing as to what any jury instruction related to spoliation of evidence should say.
Accordingly, ON OR BEFORE MAY 4, 2017, the parties shall each file a
proposed jury instruction, not to exceed two pages, suggesting what a jury may
infer related to the destruction of the log book. The proposed instruction must be
supported with citations to the record. To the extent the parties intend to rely on
depositions that are not already part of the record, they may attach those as exhibits
to the proposed jury instruction, but may not use those to support any other

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pending motions. The parties may each file a response to the proposed jury
instruction, also not to exceed two pages, ON OR BEFORE MAY 11, 2017.
As to Plaintiff’s argument that Defendant has failed to respond to five of his
interrogatories, his motion is DENIED. A review of Defendant Barnhart’s
answers to the interrogatories at issue (DE 156 at 13-15) reveals that her answers
are responsive to the questions asked and any previous failure to respond has been
cured.
IT IS SO ORDERED.

Dated: April 19, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on April 19, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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