Henry et al v. City of Flint, a municipal corporation et al

Filing 107

ORDER Adopting 86 Report and Recommendation, Granting in Part, Denying in Part 76 Motion to Dismiss filed by Nikolas White, Sean Coe, Michael Henige Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ISIAH HENRY and
HEATHER WILLIAMS,
Plaintiffs,

Case No. 17-cv-11061

Paul D. Borman
United States District Judge

v.

David R. Grand
United States Magistrate Judge
CITY OF FLINT, OFFICER
MICHAEL HENIGE, OFFICER
SEAN COE, and OFFICER NIKOLAS
WHITE,
Defendants.
______________________________/
OPINION AND ORDER: (1) ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF #86); AND (2) GRANTING IN
PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
(ECF #76)
Now before the Court is the Report and Recommendation of Magistrate Judge
David R. Grand recommending that the Court grant in part and deny in part
Defendants’ Motion to Dismiss, based on Plaintiffs’ failure to cooperate in discovery
and failure to comply with the Magistrate Judge’s April 4, 2018 Sanctions Order
(ECF #52), specifically regarding video recordings of Plaintiffs’ interaction with

police. (ECF #86.) No objections were filed to the Report and Recommendation.
The Magistrate Judge found that while sanctions were appropriate, dismissal
was not yet warranted. In the alternative to dismissal, Defendants requested an
adverse inference instruction regarding the unproduced videos, which Plaintiffs
claim they no longer possess. Accordingly, the Magistrate Judge recommended that
the Court deny Defendants’ request for dismissal, but:
[I]n the event of trial, the Court should provide the jury with an
adverse inference instruction regarding any missing videos that
Defendants requested. The Court should order Plaintiffs to
forthwith produce any recordings of police interactions in their
possession that they have not already produced. Finally, Plaintiffs
should be instructed that any further violation of their discovery
obligations or of a Court order will subject them to sanctions, up
to and including dismissal of this action.
(Rep. & Rec., PgID 1488, ECF #86.)
Having reviewed the Report and Recommendation and there being no timely
objections under 28 U.S.C. § 636(b)(1) and E.D. Mich L.R. 72.1(b), the Court
ADOPTS the Magistrate Judge’s Report and Recommendation (ECF #86), and
GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss (ECF
#76).
FURTHER, this Court orders Plaintiff to forthwith produce any recordings of
police interactions in their possession that they have not already produced. Any
further violation of their discovery obligations or a Court order will subject them to
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sanctions, up to and including dismissal of this action. If this case proceeds to trial,
the Court will provide the jury with an adverse inference instruction regarding any
missing videos that Defendants requested.
IT IS SO ORDERED.

Dated: February 4, 2019

s/Paul D. Borman
Paul D. Borman
United States District Judge

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