Sanford v. Detroit, City of et al

Filing 385

OPINION AND ORDER DENYING DEFENDANTS' AND NON-PARTY CITY OF DETROIT'S 373 MOTION for Order Defendants and Non-Party City of Detroits Motion for Relief and/or Clarification and Request for a Protective Order Relating to Docket No. 171, 171 Memorandum Opinion & Order, Motions terminated: 373 MOTION for Order - Signed by Magistrate Judge R. Steven Whalen. (CCie)

Case 2:17-cv-13062-DML-RSW ECF No. 385, PageID.19804 Filed 12/30/20 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVONTAE SANFORD,
Plaintiff,

No. 17-13062

v.

District Judge David M. Lawson
Magistrate Judge R. Steven Whalen

MICHAEL RUSSELL and
JAMES TOLBERT,
Defendants.
/
OPINION AND ORDER
Before the Court is Defendants’ and non-party City of Detroit’s Motion for Relief
and/or Clarification and Request for Protective Order Relating to Docket No. 171 [ECF
No. 373]. For the reasons that follow, the Motion is DENIED.
I.

BACKGROUND

On January 16, 2019, I entered an order [ECF No. 171] granting in part Plaintiff’s
motion to compel discovery. Pertinent to the present motion is the portion of my order
addressing allegations and/or findings of misconduct against Defendant Officers Russell
and Tolbert. In his discovery requests, Plaintiff sought records of all allegations and/or
findings against Defendants of any misconduct, citizen complaints, or investigations,
substantiated or not, and allegations or investigations of Defendants’ conduct with regard
to bias and/or fabrication of evidence. I found that Plaintiffs were “entitled to discovery
of all disciplinary factual findings and disciplinary actions taken against Defendants,
regardless of whether or not they relate to the claims in this case,” but that “discovery of
unsubstantiated complaints or complaints that did not lead to discipline are relevant only
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if they involve the same type of conduct alleged in the complaint.” ECF No. 171,
PageID.10037 (emphasis added)(citing Frails v. City of New York, 236 F.R.D. 116, 117
(E.D.N.Y. 2006)). I granted the motion to compel as to “unsubstantiated complaints
involving alleged misconduct of a similar nature to that alleged in the complaint,” ECF
No. 171, PageID.10038. Again citing Frails, I found that this material was relevant as
bearing on the Defendants’ intent. Id., PageID.10037.
On May 5, 2019, Judge Lawson denied Defendants’ motion for summary
judgment:
“Fact questions preclude summary judgment for the defendants, based on
qualified immunity and otherwise, on the plaintiff’s claim for fabrication of
evidence (under the Fourteenth Amendment); (2) coerced confession (Fifth
Amendment); and (3) malicious prosecution (Fourth Amendment).” ECF
No. 309, PageID.14939.1
Following this decision, an Internal Affairs investigation was opened on Defendant
Russell, with the focus being on “whether Russell’s testimony at Plaintiff’s preliminary
hearing, trial, and post-conviction hearing conformed with the City’s internal policies.”
Motion, ECF No. 373, PageID.19626. More specifically, Defendants state, “The Internal
Affairs investigation at issue here involved whether Russell provided false testimony at a
sketch that both Tolbert and Sanford drew on.” Reply Brief, ECF No. 379, PageID.19760.
However, while the investigation was pending, Russell retired, and the Internal Affairs
case was administratively closed.
Defendants and non-party City of Detroit now seek a protective order precluding
Plaintiff’s access to the recent Internal Affairs file on Russell.

1

The Sixth Circuit affirmed this Court’s denial of summary judgment based on a
qualified immunity analysis. ECF No. 350.
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II.

DISCUSSION

The Defendants first argue that Russell’s IA file is not responsive to my previous
order, which directed the production of not only “all disciplinary factual findings and
actions taken against Defendants,” but “unsubstantiated complaints involving alleged
misconduct of a similar nature to that alleged in the complaint.” The Defendants argue
that “[t]he investigation at issue fits neither of those categories because the investigation
ended prior to a decision of whether the charges were substantiated or unsubstantiated
and due to Russell’s retirement.” ECF No. 373, PageID.19628.
The Defendants misread my order. It does not require that a complaint be
affirmatively adjudicated as “unsubstantiated” to be discoverable. Rather, it is sufficient if
the complaint simply does not result in an affirmative finding of culpability or discipline.
In this regard, my opinion stated:
“Therefore, the Plaintiff’s request for all unsubstantiated complaints or
complaints that did not result in discipline is DENIED. However, the
motion is granted as to such unsubstantiated complaints involving alleged
misconduct of a similar nature to that alleged in the complaint.” ECF No.
171, PageID.10038.
The IA complaint against Russell falls squarely within my order, since it did not
ultimately result in discipline. Had Russell not retired, the investigation would have gone
forward, resulting in either a finding that the allegations were substantiated or that they
were not. In either case, the file would have been discoverable. The fact that Defendant
Russell short-circuited the investigation by his voluntary and likely self-interested
decision to retire (thereby precluding the possibility of disciplinary action) is irrelevant.
The Defendants also argue that the IA investigation, which was focused on
whether Russell testified truthfully in the Plaintiff’s criminal proceedings, did not involve
conduct of a similar nature to the claims in this case, i.e., “whether Russell used coercive
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interrogation tactics on Plaintiff, whether he fabricated the sketch, or whether he sought
charges against Plaintiff without probable cause.” ECF No. 373, PageID. 19628.
To posit that preparing a false police report and presenting false evidence to the
prosecutor before trial does not constitute “conduct of a similar nature” to lying about
those same matters at trial defies logic. This Court’s decision denying summary judgment
drew a clear connection between the lies told to the prosecutor and the lies told from the
witness stand at trial:
“These particular falsehoods–that Sanford drew the diagram himself, from
his own knowledge of the scene, and that Sanford was not shown any
photos of the crime scene depicting the bodies–are at the very heart of this
case. These are the two central, crucial lies that were told over and over by
Russell and Tolbert before, during, and after the trial.” ECF No. 309,
PageID.14936.2
Likewise, the Sixth Circuit noted, “Russell and Tolbert...told prosecutors that
Sanford had drafted the confession and drawn the sketch on his own. These two
documents were critical evidence in the decision to charge Sanford and later, during his
2008 bench trial. At trial, Russell testified that Sanford had confessed and drawn the
sketch.” ECF No. 350, PageID.16979. In other words, Russell engaged in a continuum of
lies, beginning with his false police report and including during his trial testimony. All of
those lies involved the same subject–the circumstances of Plaintiff’s interrogation, and
2

Addressing the Plaintiff’s claim of manufacture of false evidence, the Court also

stated,
“‘[A] police officer who manufactures false evidence against a criminal
defendant violates due process if that evidence is later used to deprive the
defendant of [his] liberty in some way.’ Avery v. City of Milwaukee, 847
F.3d 433, 439 (7th Cir. 2017) (quoting Whitlock v. Brueggemann, 682 F.3d
567, 580 (7th Cir. 2012); citing Mooney v. Holohan, 294 U.S. 103, 112
(1935) (“[T]he presentation of testimony known to be perjured...to procure
the conviction and imprisonment of a defendant is as inconsistent with the
rudimentary demands of justice as is the obtaining of a like result by
intimidation.”).’” ECF No. 309, PageID.14928.
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who drew the sketch. And as I clearly indicated in my previous order, unsubstantiated
complaint of a similar nature–which would include the investigation into Russell’s trial
testimony–is relevant to his intent. To support a malicious prosecution claim, a plaintiff
must show that the defendant “stated a deliberate falsehood or showed reckless disregard
for the truth....” Gregory v. City of Louisville, 444 F.3d 725,758 (6th Cir. 2006).3
In addition, Defendants argue that “Russell cannot be held liable in this case based
on the in-court testimony that he provided in those proceedings because person, including
police officers, are entitled to absolute immunity when they testify.” ECF No. 373,
PageID.19629. Again, however, the IA file, which may include but not be limited to the
exact content of his trial testimony, is relevant to Russell’s intent when he made the false
statements to the prosecutor. Moreover, whether or not absolute immunity shields
testimony given in judicial proceedings, see LeFever v. Ferguson, 567 F. App’x 426, 430
(6th Cir. 2014), is beside the point. The issue here is discoverability under Fed.R.Civ.P.
26(b), not admissibility under the Federal Rules of Evidence.
In summary, my order [ECF No. 171] is clear on its face, and the IA file on Russell
is discoverable under the terms of that order. Defendants have no shown any “reason that
justifies relief” from my order under Fed.R.Civ.P. 60.
Finally, the City of Detroit, which has been dismissed from this case, contends that
it is not subject to my discovery order because it is not currently a party. However, I note
that the Defendants and the City of Detroit are represented by the same attorney. In his
3

The Defendants’ argument that the IA investigation is not relevant “because it
focused on whether Russell deviated from internal policy” is of no consequence. Plaintiff
does not contend that a violation of police regulations necessarily equates to a
constitutional violation, but rather seeks information regarding the substantive facts of the
investigation, not its ostensible purpose. Had the investigation gone forward and resulted
in disciplinary action against Russell, he would be hard pressed to argue that the IA file
would not be discoverable under my previous order.
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response to this motion, Plaintiff has cited a number of cases holding that when a party’s
counsel has discoverable records, he or she must produce them. See e.g., Hernandez v.
Results Staffing, Inc., 907 F.3d 354, 362 (5th Cir. 2018). That makes practical sense in this
case, since, were I to grant the City’s motion on this basis, Plaintiff could simply serve a
Rule 45 subpoena, adding another step to the process. Rather than delaying the inevitable,
I will order the City’s counsel to produce the IA file.
Although I denying Defendants’ and the City’s motion and ordering that Russell’s
IA file be produce, I will allow the redaction of any material to which privilege, including
the deliberative process privilege, is claimed, and any personal identifying information
that would fall within Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). Any
claims of privilege will be accompanied by a privilege log.
III.

CONCLUSION

Under the terms set forth above, Defendants’ and non-party City of Detroit’s
Motion for Relief and/or Clarification and Request for Protective Order Relating to
Docket No. 171 [ECF No. 373] is DENIED.
IT IS SO ORDERED.

s/R. Steven Whalen
R. Steven Whalen
United States Magistrate Judge
Dated: December 30, 2020

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of
record on December 30, 2020 electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager

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