Davis et al v. Detroit, City of et al

Filing 89

OPINION AND ORDER Denying Objections contained in 78 Appeal of Magistrate Judge Decision, filed by Brian Johnson, James Napier, Stephen Geelhood, Charles Flanagan, Arthur Leavells, Steven Riley, Vatasha K Napier, Amy Matellic. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY DAVIS AND HATEMA DAVIS,
Plaintiff,

Case No. 15-10547

v.

Paul D. Borman
United States District Judge

CITY OF DETROIT, ET AL.,

David R. Grand
United States Magistrate Judge

Defendants.
______________________________/
OPINION AND ORDER DENYING DEFENDANTS CITY OF DETROIT,
FLANAGAN, NAPIER MATELLIC, BARNETT, RILEY, BRAY, JOHNSON,
BEASLEY, AND GEELHOOD’S OBJECTIONS TO MAGISTRATE JUDGE’S MAY
16, 2016 ORDER
The present civil rights case arises from Plaintiffs Timothy Davis and Hatema
Davis’ allegations that their home was wrongfully raided and they were interrogated for
hours by officers of the City of Detroit’s Narcotics Unit in violation of the Fourth and
Fourteenth Amendment. (See ECF No. 21, Am. Compl.)
On May 12, 2016, Defendants City of Detroit, Flanagan, Napier, Matellic, Barnett,
Riley, Bray, Johnson, Beasley, and Geelhood (“Defendants”) filed a Motion to Compel
Plaintiffs’ Appearance for Deposition. (ECF No. 73.) That motion was referred to
Magistrate Judge David R. Grand for determination pursuant to 28 U.S.C. § 636(a)(1)(A).
(ECF No. 74.) On May 16, 2016, Magistrate Judge Grand issued an order summarily
denying Defendants’ motion to compel. (ECF No. 75.) Now before the Court is

Defendants’ Objection to Magistrate Judge Grand’s May 16, 2016 Order which was filed
on May 31, 2016. (ECF No. 78.)
I. STANDARD OF REVIEW
A district court judge reviews de novo the portions of the report and
recommendation to which objections have been filed. 28 U.S.C. § 636(b)(1); FED. R.
CIV. P. 72(b). A district “court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id. This Court, however,
cannot reverse a magistrate judge’s opinion on a non-dispositive matter unless that
decision was “clearly erroneous” or “contrary to law.” FED. R. CIV. P. 72(a). The United
States Supreme Court and the United States Court of Appeals for the Sixth Circuit have
stated that “a finding is ‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948) (explaining the clearly erroneous standard under Rule 52(a)); Hagaman v. Comm’r
of Internal Revenue, 958 F.2d 684, 690 (6th Cir 1992) (quoting U.S. Gypsum Co.).
This standard does not allow a reviewing court to reverse a magistrate judge’s
finding merely because it would have decided the matter differently. See Anderson v.
City of Bessemer City., N.C., 470 U.S. 564, 573 (1985) (interpreting the clearly erroneous
standard in Rule 52(a)). “The ‘clearly erroneous’ standard applies only to the magistrate
judge’s factual findings; his legal conclusions are reviewed under the plenary ‘contrary to
law’ standard.” Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich.
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1995) (citing Gandee v. Glaser, 785 F. Supp. 684, o 1992), aff’d 19 F.3d 1432 (6th Cir.
1994)). As a result, the reviewing court must employ “independent judgment with respect
to the magistrate judge’s conclusions of law.” Id.
II. BACKGROUND
On May 16, 2016, Magistrate Judge Grand summarily denied Defendants’ nine
paragraph long Motion to Compel and one sentence long Brief in Support because
Defendants failed to adequately describe the parties’ dispute and failed to show they were
entitled to any relief. (ECF No. 75.) In support of their skeletal motion and brief,
Defendants attached an email from Plaintiffs’ attorney, which provided:
[W]e are not producing Mr. Davis for deposition because the City has failed
to comply with our discovery requests and specifically as to Mr. Davis, we
have not been given all notes and recordings of his statements in the City’s
possession related to this matter. It is inappropriate to withhold these
documents and recordings and these documents and recordings are one of
the topics of Plaintiff’s 6/7/16 Motion [hearing date for Plaintiffs’ Renewed
Motion for Default against Defendant City of Detroit]. We will produce
Mr. Davis after you have complied with our request as it relates to his
testimony.
(ECF No. 73, Ex. 2, 5/5/2016 Email.) Magistrate Judge Grand noted that Defendants
failed to “show why Mr. Davis’ position – that he should only be deposed after Defendant
City of Detroit has produced certain material to him – lacks merit. Indeed, Defendants
did not even mention in their motion or brief that Mr. Davis proffered that reason, let
alone analyze its legitimacy.” (ECF No. 75, Report and Recommendation, at *3.)
Magistrate Judge Grand also found that Defendants “failed to show that there is
any dispute as to the deposition of Plaintiff Hatema Davis” because no objection had been
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made by Plaintiffs’ attorney regarding producing Plaintiff Hatema Davis for a deposition
“as Plaintiffs’ counsel clearly objected only to the deposition of Mr. Davis (‘we are not
producing Mr. Davis’).” (Id.) The Motion to Compel was summarily dismissed before
Plaintiffs’ were required to file a response to the motion.
III. ANALYSIS
“It is well established that a party may not raise an argument, advance a theory, or
marshal evidence before a District Judge that was not fairly presented to the Magistrate
Judge.” Marr v. Foy, No. 1:07-CV-908, 2010 WL 3061297, at *4 (W.D. Mich., Aug. 3,
2010) (citing Murr v. United States, 200 F.3d 895, 902 n .1 (6th Cir. 2000)); see also
Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001). “The Magistrates Act was
not intended to give litigants an opportunity to run one version of their case past the
magistrate, then another past the district court.” Id. (quoting Jones-Bey v. Caruso, No.
1:07-CV-392, 2009 WL 3644801, at *1 (W.D. Mich. Oct. 30, 2009)).
Here, Defendants have not articulated a single objection to the Magistrate Judge’s
conclusion that the Motion to Compel failed to articulate the parties’ dispute and failed to
show that Defendants were entitled to the relief request. Instead, Defendants reargue the
merits of their motion before this Court with the facts and arguments that were never
presented for review to the Magistrate Judge. The Court finds that Defendants’
arguments are a tacit admission that the Magistrate Judge’s conclusion that the Motion to
Compel should be summarily dismissed was not “clearly erroneous” or “contrary to law.”
See FED. R. CIV. P. 72(a).
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The Court also takes notice of the fact that Plaintiffs filed a renewed motion for
default judgment against Defendant City of Detroit on April 7, 2016 based upon
Defendant City of Detroit’s alleged repeated failures to produce certain discovery
regarding the internal investigation into the search of Plaintiffs’ home and Plaintiff
Timothy Davis’ recorded statements. (ECF No. 65, Renewed Motion, at 15; see also ECF
No. 79, Resp. to Def. Levealls Mot. to Compel Plaintiffs’ Depositions, at ¶6.) This
renewed motion for default was filed prior to Plaintiffs’ attorney’s refusal to produce
Plaintiffs’ for depositions and formed the basis for Plaintiffs’ attorney’s refusal.
Additionally, the Court notes that although Defendants’ motion to compel was
summarily dismissed and Plaintiffs did not have an opportunity to respond; Defendant
Levealls has filed a separate motion to compel the depositions of Plaintiffs to which
Plaintiffs’ filed a response. (ECF Nos. 76, 79.) Plaintiffs argued in their response to
Defendant Levealls’ motion that
Plaintiffs have consistently maintained that they would be produced for
their depositions after the City complies with its discovery obligations.
Given that the City has recorded interviews with Timothy Davis, and other
documents relating to its internal investigation regarding the raid on Mr.
Davis’ home, Plaintiffs should receive such discovery before their
depositions. It should be noted that Plaintiffs have been seeking such
discovery from the City for nearly a year, to no avail. And despite multiple
orders from the Court, the City has steadfastly refused to provide the
discovery in question.
(ECF No. 79, at ¶¶ 5-6 (internal emphasis in original, footnote omitted).) Defendant
Levealls’ motion to compel, Plaintiffs’ renewed motion for default judgment based on
failure to produce certain discovery, and other discovery motions were referred to
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Magistrate Judge Grand and a hearing was held on June 7, 2016. At the conclusion of the
hearing, Magistrate Judge Grand scheduled an evidentiary hearing regarding Plaintiffs’
renewed motion for default judgment. (ECF No. 83.) Magistrate Judge Grand recently
had to reschedule this hearing due to Defendant City’s counsel failure to appear or
produce the requested witness. (ECF No. 87.) The evidentiary hearing is now
rescheduled for August 1, 2016. (Id.)
In light of these facts, including Defendants’ repeated and documented failure to
produce requested discovery, appear in Court, or submit detailed, well-reasoned motions
to the Court, the Court finds that Defendants have failed to show that the Magistrate
Judge erred in summarily denying Defendants’ Motion to Compel.
Further, the Court finds that Plaintiffs’ reason not to produce Plaintiff Timothy
Davis for his deposition was reasonable. While it is clear that Plaintiffs’ refusal to
produce Plaintiff Timothy Davis was not based on any asserted privilege, Plaintiffs’
attorney noted that Defendant had failed to produce highly relevant discovery regarding
Plaintiff Timothy Davis’ own recorded statements to the City of Detroit. Defendants
implicitly acknowledge in their Objection that they have not produced Plaintiff Timothy
Davis’ recorded statements to Plaintiffs, and have only provided “Plaintiff Davis’ written
statement and a synopsis of his audio recorded statement.” (ECF No. 78, at 2.)
Defendants are careful to state that Plaintiffs have only been provided “much of its [sic]
discovery requests.” (Id.) (emphasis added). Given the fact that Defendants admit that
they have failed to produce all of the relevant discovery regarding Plaintiff Timothy
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Davis’ statements to Defendant City of Detroit, and such information would be pertinent
and relevant to Plaintiff Timothy Davis’ deposition, the Court denies Defendants’
objection that they are entitled to compel Plaintiff Timothy Davis’ deposition at this time.
Defendants also argue in their Objection that Magistrate Judge Grand erred in
concluding that there was no dispute regarding the deposition of Plaintiff Hatema Davis,
because Plaintiff’s counsel only provided an objection regarding the production of
Plaintiff Timothy Davis. (ECF No. 78, at *3-4.) Defendants argue that Plaintiff’s
attorney did not object to the notice of deposition for Plaintiff Hatema Davis nor was she
produced for her deposition, and hence there is a dispute and they are entitled to an order
compelling her deposition. (Id. at *3.)
The Court finds, as an initial matter, it was not clear error to conclude Plaintiff
Hatema Davis’ deposition was not in dispute, because Defendants’ Motion to Compel
contained insufficient facts to conclude otherwise. Further, as set forth supra,
Defendants have failed to produce relevant discovery, most significantly Plaintiff
Timothy Davis’ own recorded statements. The Court finds that Plaintiffs’ demand that
such pertinent discovery be exchanged prior to Plaintiff Hatema Davis’ deposition is
reasonable.
IV. CONCLUSION
In summary, Defendants’ Motion to Compel was summarily denied because it
lacked any facts or reasoned legal argument and failed to show that Defendants were
entitled to any relief. Defendants’ Objection fails to point to any error by the Magistrate
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Judge in reaching this conclusion, and merely attempts to have this Court address the
merits of their motion. Additionally, even addressing the merits of this motion, the Court
finds that Defendants have admittedly failed to provide relevant discovery to Plaintiffs
that will logically be a topic of the depositions and, therefore, Plaintiffs’ reason for not
producing Plaintiffs was valid and reasonable.
Given these facts, the Court finds that the May 16, 2016 Order is not “clearly
erroneous” or “contrary to law” and DENIES Defendants’ Objection (ECF No. 78).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 14, 2016

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on July 14,
2016.

s/Deborah Tofil
Case Manager

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