Kitchen v. Winn et al
Filing
82
OPINION AND ORDER Construing and Granting Plaintiff's 60 Motion for Reconsideration ; Denying 75 Motion for Leave to File Excess Pages; Striking 76 Motion for Summary Judgment; Denying 78 Motion for Leave to File Excess Pages; Striking 77 EXHIBIT 19 (Signed) re: 76 MOTION for Summary Judgment and 80 Motion for Summary Judgment--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL KITCHEN,
Case No. 2:17-cv-11627
Judge George Caram Steeh
Magistrate Judge Anthony P. Patti
Plaintiff,
v.
O’BELL T. WINN, et al.,
Defendants.
__________________________/
OPINION AND ORDER (1) CONSTRUING PLAINTIFF’S EMERGENCY
MOTION FOR RECONSIDERATION (DE 60) AS A SUPPLEMENTAL
MOTION TO AMEND and GRANTING SUCH MOTION; (2) PROVIDING
DIRECTION TO THE CLERK OF THE COURT & THE USMS WITH
RESPECT TO SERVICE OF THE AMENDED COMPLAINT (DE 61)
UPON DEFENDANTS BIDDLE and SMITH; (3) EXTENDING DATES; (4)
DENYING WITHOUT PREJUDICE MOTIONS TO EXCEED PAGE
LIMIT (DEs 75, 78); and, (5) STRIKING SEVERAL FILINGS (DEs 76, 77,
80)
I.
OPINION
A.
Original Complaint
Michael Kitchen (#189265), is currently in the Michigan Department of
Corrections’ (MDOC’s) custody at Michigan Reformatory (RMI) in Ionia,
Michigan. (DE 43.) On May 19, 2017, while incarcerated at the Earnest C. Brooks
Correctional Facility (LRF), Kitchen filed the instant lawsuit in pro per against ten
named defendants, each of whom is identified as being located at the Saginaw
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Correctional Facility (SRF). (DE 1 ¶¶ 5-7.) In addition, he listed as Defendants
“Unknown Supervisors or Guards.” (DE 1 ¶ 8.)
Each of the ten named defendants is represented by Michigan’s Attorney
General. Defendants were given until September 27, 2017 by which to file a
responsive pleading. (DEs 23, 24.) On May 22, 2018, Judge Steeh entered an order
accepting my report and recommendation, granting in part and denying in part
Defendants’ motion for summary judgment, and dismissing Plaintiff’s claims for
money damages against Defendants in their official capacities. (DE 33.)
B.
Discovery & Dispositive Motion Deadlines
On September 11, 2018, I entered an order setting the discovery deadline for
November 6, 2018 and the dispositive motion cutoff for December 6, 2018. (DE
37.) Since then, there have been several extensions: (1) on December 4, 2018, the
discovery deadline was extended to Monday, January 7, 2019, and the dispositive
motion deadline was extended to Wednesday, February 6, 2019; (2) on February 27,
2019, the dispositive motion cutoff was extended to June 5, 2019; and, (3) on July
30, 2019, the discovery deadline was extended to July 16, 2019, and the dispositive
motion cut-off was set for August 15, 2019.
C.
Plaintiff’s Attempt to Amend His Complaint
Meanwhile, on January 25, 2019, Plaintiff filed a motion to amend his
complaint, attached to which was a proposed amended complaint. (DE 45, DE 452
1.) On April 8, 2019, I entered an opinion and order granting in part and denying in
part Plaintiff’s motion. (DE 57.) Among other things, I stated that “the Court is not
convinced that there was adequate information for prison officials to know that
Plaintiff was grieving proposed Defendants Biddle and Smith.” (DE 57 at 14; see
also DE 57 at 17.) Therefore, the Court denied Plaintiff’s motion to amend as to
proposed Defendants Biddle and Smith. (DE 57 at 23.)
D.
Instant Matter
Among the many motions currently pending before the Court is Plaintiff’s
April 23, 2019 emergency motion for reconsideration of the Court’s April 8, 2019
order (DE 57), to the extent it denied the motion to amend as to adding Defendants
Smith and Biddle. (DE 60 at 1-5.) Defendants filed a response on May 24, 2019,
wherein they state that Plaintiff “has now identified the source of his contention that
Biddle and Smith are involved in the chain of events that this suit is based upon,
albeit late[,]” and claim to “have no additional legal argument in opposition of
Plaintiff’s motion.” (DE 66 at 5.)
E.
Discussion
1.
Plaintiff’s emergency motion for reconsideration
construed as an amended motion to amend and granted.
is
In this district, motions for reconsideration substantively rise and fall on
whether a party can demonstrate a palpable defect, which, if corrected, “will result
in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). Plaintiff’s motion
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does not demonstrate such a defect in the Court’s order. In fact, Plaintiff seems to
admit as much. He “apologizes for that oversight,” and attaches Karl and Odette’s
discovery responses, which he argues make “clear that proposed Defendants Smith
and Biddle were involved in the strip and cell search that Kitchen underwent on
December 26, 2016[.]” (DE 60 at 3-4.)1 Therefore, Plaintiff claims, Smith and
Biddle “should be added as defendants.” (DE 60 at 4.)
Upon consideration, the Court construes Plaintiff’s motion for reconsideration
as a supplemental motion to amend and grants such motion.
2.
Plaintiff’s April 25, 2019 amended complaint, which names
18 Defendants, is the operative pleading.
On April 25, 2019, Plaintiff filed an amended complaint against 18
Defendants, the 10 original Defendants plus 8 additional Defendants: (1) Todd
Massick, (2) Markus Huizar, (3) Jermer (Jemar) Rozier, (4) Russell Vittitow, (5)
Michael Smith, (6) Captain (Vicki) Close, (7) Sgt. Biddle, and (8) Sgt. (Todd)
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Attached to the motion and brief are: (1) Odette’s August 13, 2018 answers to
Plaintiff’s first set of interrogatories (DE 60 at 6-9); (2) Karl’s August 14, 2018
answers to Plaintiff’s first set of interrogatories (DE 60 at 10-13); (3) Odette’s
October 12, 2018 answers to Plaintiff’s second set of interrogatories (DE 60 at 1419); (4) Odette’s January 29, 2019 supplemental answers to Plaintiff’s second set
of interrogatories (DE 60 at 20-23); (5) Odette’s February 8, 2019 answers to
Plaintiff’s third set of interrogatories (DE 60 at 24-28); (6) Odette’s March 13,
2019 supplemental answer to Plaintiff’s third set of interrogatories (DE 60 at 2931); and, (7) an MDOC memorandum to Wendt from Odette, which mentions
Biddle (DE 60 at 32-33).
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Wendt. (DE 61.) Massick, Huizar, Rozier, Vittitow, Close and Wendt have
appeared via counsel. (DE 67-73.)
Smith and Biddle have yet to appear.
II.
ORDER
Accordingly, Plaintiff’s April 23, 2019 emergency motion (DE 60) for
reconsideration of the Court’s April 8, 2019 order (DE 57) is CONSTRUED as a
supplemental motion to amend and GRANTED.
The Clerk of the Court is
DIRECTED to prepare papers for service of Plaintiff’s amended complaint (DE 61)
upon Defendants Biddle and Smith, after which the U.S. Marshal Service is
DIRECTED to attempt service of process upon these Defendants.
Also, while the Court recognizes that the parties filed a stipulation to extend
the discovery and dispositive motion deadlines (DE 74), which resulted in this
Court’s July 30, 2019 order extending the discovery deadline to July 16, 2019 and
the dispositive motion deadline to August 15, 2019, the Court nonetheless
determines that dates should be further extended as follows: (a) the discovery
deadline is extended to October 15, 2019, as to Defendants Biddle and Smith only;
and, (b) the dispositive motion deadline is extended to November 15, 2019 as to all
parties.
Meanwhile, the parties’ motions to exceed page limit (DEs 75, 78) are
DENIED, and the related cross-motions for summary judgment (DEs 76, 80) - one
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of which also requests discovery sanctions, each of which concerns only 16
defendants, and both of which exceed E.D. Mich. LR 7.1(d)(3)(A)’s 25-page limit
for briefs - are STRICKEN.
Defendants’ related exhibit (DE 77) is also
STRICKEN. In light of the two new defendants and related extension of discovery,
the Court directs that dispositive motion practice by Defendants be pursued through
a single motion that concerns all 18 defendants.
Accordingly, once the new
defendants have been served and the related discovery period has concluded, the
Court will entertain reasonable motions for excess pages, which should be filed at
least 10 days in advance of the summary judgment motion and will be considered ex
parte. Defendants should not necessarily count on the 15 extra pages requested in
their motion for extension (DE 75), or even the 8 pages by which their now stricken
motion for summary judgment (DE 76) in fact exceeded the 25 page limit, unless
they explain in detail why so many pages are needed, as the Court notes that, while
there are many named defendants, a fair number of them are accused of quite similar
behavior or occupy quite similar positions. The same goes for Plaintiff.
Finally, Plaintiff’s August 19, 2019 motion for hearing & oral argument on
request for spoliation of evidence sanctions (DE 79) will be addressed under separate
cover.
Dated: August 21, 2019
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on August 21, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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