Cole v. Monroe County Sheriff et al

Filing 27

OPINION and ORDER Denying Defendants' 25 Second Motion to Deem Facts Admitted. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD COLE,
Plaintiff,

Civil Action No. 17-CV-12928

vs.

HON. BERNARD A. FRIEDMAN

COUNTY OF MONROE, et al.,
Defendants.
__________________________/
OPINION AND ORDER DENYING DEFENDANTS’
SECOND MOTION TO DEEM FACTS ADMITTED
This matter is presently before the Court on defendants’ second motion to deem facts
admitted [docket entry 25]. Plaintiff has not responded and the time for him to do so has expired.
Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing.
Therefore, the hearing scheduled for May 22, 2018, is canceled.
Plaintiff, a former Monroe County deputy sheriff, alleges that the current Monroe
County sheriff has denied his requests to provide him with his “retirement credentials including the
photographic identification” that plaintiff needs in order to obtain a concealed firearms permit under
the Law Enforcement Officers Safety Act (“LEOSA”), 18 U.S.C. § 926C. Compl. ¶ 29. Plaintiff
alleges that the sheriff has denied these requests in retaliation for plaintiff’s support of another
candidate for sheriff in the last election. Id. ¶ 34. Plaintiff claims that the sheriff and Monroe
County have violated his rights under LEOSA and under the First and Fourteenth Amendments. For
relief, plaintiff seeks damages, costs, and an injunction ordering the sheriff to provide him with his
retirement credentials.

In the instant motion, defendants argue that plaintiff has responded improperly to
their requests for admission. The admission requests were mailed to plaintiff on November 2, 2017.
See docket entry 14-1 (Pg ID 82). Plaintiff responded on December 6 by objecting to each of the
30 admission requests on the grounds that “this incident took place over 20 years ago [and that] this
request is not relevant to the cause of action that is at issue in this case.” See docket entry 14-5 (Pg
ID 148-59). On December 27, defendants filed a “motion to deem facts admitted,” in which they
argued that plaintiff’s objections were unjustified. Plaintiff responded to this motion on February
6 by filing substantive answers to defendants’ admission requests. See docket entry 19. Magistrate
Judge Majzoub denied defendants’ motion because the “prayer for relief is not consistent with the
title or body of the motion,” but she invited defendants to file a corrected motion within fourteen
days and, if defendants elected to do so, instructed them to “address Plaintiff’s February 6, 2018
filing of revised answers . . . and any resolved or unresolved issues resulting therefrom.”
In their “corrected motion” now before the Court, defendants argue that plaintiff
should not be permitted to revise his initial responses and that those responses (i.e., objections) are
improper. Alternatively, defendants argue that plaintiff’s revised responses are insufficient. In
either event, defendants argue that plaintiff should be deemed to have admitted all of the admission
requests.
Plaintiff’s repeated objection, in his initial response to the admission requests, was
improper. Under Fed. R. Civ. P. 36(a)(5), “[t]he grounds for objecting to a request must be stated.”
Plaintiff’s objection that “this incident took place over 20 years ago” does not explain the grounds
for the objection. If meant to imply that plaintiff lacks memory of the event, it is contradicted by
plaintiff’s revised responses, in which he has responded substantively and at times in some detail.

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If meant to imply lack of relevance, it is redundant of the second part of the objection (“not relevant
to the cause of action that is at issue in this case”), which itself is improper in light of the broad
definition of relevance under Fed. R. Civ. P. 26(b). On their face the admission requests are plainly
relevant, as they concern an investigation by the Michigan Sheriff’s Association and the Bureau of
Alcohol Tobacco and Firearms into plaintiff’s involvement in purchasing firearms while he was
employed as a deputy sheriff.
When, as here, the Court determines that plaintiff’s objections are improper, “the
court must order that an answer be served.” Fed. R. Civ. P. 36(a)(6). In the present case, the Court
need not do so because plaintiff has submitted revised answers responding without objection to each
admission request. Defendants cite authority for the proposition that a party should not be permitted
to revise its responses to admission requests after a motion has been filed challenging the sufficiency
of the responses. However, the Court prefers to examine plaintiff’s revised answers in the interest
of resolving issues on the merits rather than by default.
Defendants argue that plaintiff’s answers to admission requests 5, 6, 8, 9, 11, 18, 19,
21-27, 29 and 30 are insufficient and suggest that plaintiff should be deemed to have admitted all
of these requests. The Court has examined all of these admission requests and plaintiff’s answers,
and denies defendants’ motion as to admission requests 5, 6, 8, 19, 21-25, and 30. If defendants
wish to delve deeper into these areas, other discovery tools are available to them.
Plaintiff’s remaining answers (to admission requests 9, 11, 18, 26, 27, and 29) are
insufficient. These requests, and responses, are:
9. That at the meeting of September 17, 1996, did you inform the
investigators that Marine Officer Norman Whipple wished to
purchase a gun and that there were other marine officers who wanted
to purchase weapons as well?
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RESPONSE: I believe Norm Whipple was a marine officer and he
want [sic] to buy a gun.
11. That the [sic] meeting of September 17, 1996, did you tell
investigating officers Norm Whipple and George Foreman had prior
knowledge that their names were going to be used for the order of the
weapons.
RESPONSE: I believe Norm Whipple did order a gun and I thought
Sheriff VanWert had told George Foreman about his name being used
to order the Gun. George Foreman was the Jail Administrator and
was one of Sheriff VanWert’s appointed people.
18. Do you admit that on September 17, 1996, the rosters for marine
deputies, reserve deputies and sheriff posse members did not contain
the names of Richard J. Russell, Jr., Melvin E. Briskey or Leon
Lafen.
RESPONSE: yes they were special officers appointed by the sheriff.
The facts are that Sheriff Van Wert had some goals for reelection to
gain support. He wanted to add a number of Special Deputies.
26. Did you tell Melvin Briskey to stick with the date on the marine
deputy application and to tell no one that Briskey and Cole had met
and discussed the application.
RESPONSE: I told him to date the application using the date of the
original application[.]
27. Did you state to Carl M. Reuther that you were being investigated
and that “we need to get together and talk about this, I may lose my
pension over this”.
RESPONSE: I told Carl Ruether that they were trying to eliminate
me from the Sheriff Department and take my pension.
29. Do you admit that in September 1996 you asked Leon Lafen fill
out [sic] an application for marine deputy and back date the
application to December 1995.
RESPONSE[:] He had filled out an application shortly after we
attended a dinner together at the Monroe Men’s Club and his original
application was misplaced or deliberately destroyed.
These answers are insufficient because they do not comply with Fed. R. Civ. P.
36(a)(4), which states, in relevant part:
If a matter is not admitted, the answer must specifically deny it or
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state in detail why the answering party cannot truthfully admit or
deny it. A denial must fairly respond to the substance of the matter;
and when good faith requires that a party qualify an answer or deny
only a part of a matter, the answer must specify the part admitted and
qualify or deny the rest.
Plaintiff’s answers to admission requests 9 and 11 are insufficient because plaintiff neither admitted
nor denied the questions, which do not ask what plaintiff believes now, but whether he informed the
investigators of particular information. Plaintiff’s answers to admission requests 18, 26, 27, and 29
are insufficient because plaintiff neither admits nor denies the questions, but appear to address
unasked questions.
For these reasons, the Court concludes that plaintiff’s answers to admission requests
9, 11, 18, 26, 27, and 29 are insufficient. Plaintiff must provide sufficient answers to these
admission requests as required by Fed. R. Civ. P. 36(a)(4) within seven days of the date of this order.
If he fails to do so, defendants may move to deem these matters admitted. Accordingly,

IT IS ORDERED that defendants’ second motion to deem facts admitted is denied.

IT IS FURTHER ORDERED that plaintiff provide sufficient answers to admission
requests 9, 11, 18, 26, 27, and 29 within seven days of the date of this order.

Dated: May 8, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on May 8, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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