Young v. Jindal

Filing 112

ORDER (1) DENYING MOTION TO MODIFY THE SCHEDULING ORDER (ECF NO. 91 ); (2) DENYING MOTION FOR THE RECRUITMENT OF COUNSEL (ECF NO. 92 ); AND, (3) DENYING AMENDED MOTION FOR SANCTIONS FOR NONCOMPLIANCE WITH SUBPOENA (ECF NO. 101 ). Signed by Magistrate Judge Anthony P. Patti. (KBro)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARDRA YOUNG,
Plaintiff,
v.

Case No. 2:21-cv-12170
District Judge Gershwin Drain
Magistrate Judge Anthony P. Patti

ROSILYN JINDAL, et al.,
Defendants.
___________________________________/
ORDER (1) DENYING MOTION TO MODIFY THE SCHEDULING
ORDER (ECF NO. 91); (2) DENYING MOTION FOR THE
RECRUITMENT OF COUNSEL (ECF NO. 92); AND, (3) DENYING
AMENDED MOTION FOR SANCTIONS FOR NONCOMPLIANCE WITH
SUBPOENA (ECF NO. 101)
A. Background
Plaintiff Ardra Young is currently in the custody of the Michigan
Department of Corrections (MDOC) at the Richard A. Handlon Correctional
Facility (MTU). (ECF No. 56.) Although the operative pleading does not comply
with Fed. R. Civ. P. 10(a)’s requirement that the title “name all the parties[,]” (see
ECF No. 57, PageID.543), Plaintiff appears to bring the action against five named
Defendants – Corizon Defendant Rosilyn Jindal, P.A., and MDOC Defendants
Kimberly Korte, Michelle Gilbert, Andrea Bobon, and Cheryl Elliot. (Id., ¶ 7(c)(g).) (See also ECF Nos. 25, PageID.185; ECF No. 31.) On March 18, 2022, Judge
Gershwin Drain referred this case to me “for all pretrial proceedings, including a

hearing and determination of all non−dispositive matters pursuant to 28 U.S.C. §
636(b)(1)(A) and/or a report and recommendation on all dispositive matters
pursuant to 28 U.S.C. § 636(b)(1)(B).” (ECF No. 18, PageID.92.)
On August 21, 2023, I issued a report and recommendation to grant
Defendants Gilbert and Korte’s motion to dismiss. (ECF No. 81.) Judge Drain
adopted the recommendation, dismissed Defendants Gilbert and Korte, and then
denied subsequent motions for reconsideration. (ECF Nos. 88, 108, 111.)
In the meantime, Plaintiff filed a variety of motions, three of which remain pending
before the Court: (1) Motion to Modify the Scheduling Order (ECF No. 91); (2)
Motion for the Recruitment of Counsel (ECF No. 92); and, (3) Amended Motion
for Sanctions for Noncompliance with Subpoena (ECF No. 101). I will address
each motion in turn.
B. Discussion
1. Motion to Modify the Scheduling Order (ECF No. 91)
The initial scheduling order in this case set two dispositive motion deadlines:
(1) May 27, 2022 for dispositive motions averring a failure to exhaust
administrative remedies, raising the defense of qualified immunity, or for dismissal
under Rule 12; and, (2) February 28, 2023 for all other motions for summary
judgment, if any. (ECF No. 19.) The first of these deadlines, which, by its terms
could only apply to Defendants, has been extended on two occasions:
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1.

On May 27, 2022, the MDOC Defendants filed a motion to stay the
scheduling order (ECF No. 34), as to which Plaintiff filed a partial
concurrence (ECF No. 37). On August 30, 2022, so as to allow them
to test the newly amended pleadings by which they were added, I
entered an order granting Defendants’ motion and staying discovery
and other deadlines “with respect to the [four MDOC] Defendants
[Korte, Gilbert, Bobon and Elliot] added as a result of Plaintiff’s filing
of the amended complaint” (ECF No. 23) only, “but not as to Jindal”
or, for that matter, as to Plaintiff. (ECF No. 46, PageID.400.) On
October 6, 2022, I entered an order allowing the presumed “newly
added Defendants Korte, Gilbert, Bobon, and Elliot” to “have until
Wednesday, November 30, 2022 to file any dispositive motions
averring: a failure to exhaust administrative remedies, raising the
defense of qualified immunity, or for dismissal under Rule 12[,]” but
also providing that, “[a]s to Defendant Jindal, the scheduling order
dates at ECF No. 19 remain in effect.” (ECF No. 51.) Plaintiff filed
his amended, and now operative, complaint on December 5, 2022.
(ECF No. 57.)

2.

On December 27, 2022, the MDOC Defendants filed a motion, which
effectively requested that the Court set a deadline of January 13, 2023
for the MDOC Defendants’ dispositive motion raising failure to
exhaust administrative remedies, qualified immunity, or Rule 12
dismissal. (ECF No. 60, PageID.582.) The Court granted this motion
by way of a same-day text-only order. (ECF No. 61.)

Following Corizon Health Inc.’s February 2023 suggestion of bankruptcy
and notice of automatic stay (ECF No. 71), I granted Defendant Jindal’s
emergency motion to stay proceedings 90 days (ECF No. 73), essentially staying
the case from February 27, 2023 to Sunday, May 28, 2023 (although more
accurately until Tuesday, May 30, 2023, given the weekend deadline and the
Memorial Day holiday). (ECF No. 75.)

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The remaining MDOC Defendants are operating under a different timeline,
as the Court initially stayed the case against all MDOC Defendants, and then lifted
the stay to allow motions related to exhaustion. (ECF Nos. 46, 51.)
The February 28, 2023 deadline for “all other motions” (i.e., besides
“dispositive motions averring a failure to exhaust administrative remedies, raising
the defense of qualified immunity, or for dismissal under Rule 12”) – has never
been extended as to Plaintiff or Defendant Jindal. In effect, the 90 day pause in the
proceedings pushed the February 28th deadline, i.e., one day after the stay was
entered, to one day after the stay expired by its own terms, i.e., May 31, 2023.
(ECF No. 86, PageID.85-86.)
On August 25, 2023, Plaintiff brought a motion for partial summary
judgment against Defendant Jindal. (ECF No. 82), which I struck as being, “at
best, approximately three months tardy (and nearly six months beyond the
February 28, 2023 deadline).” (ECF No. 86, PageID.991.) I specifically held
“Since Jindal remains bound by the expired dispositive motion deadline and is now
prohibited from filing a summary judgment motion against Plaintiff, it is only fair
that Plaintiff must likewise be so bound and prohibited from filing such a motion
against Jindal.” (Id.)
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Plaintiff seeks to revisit this ruling by moving to modify the scheduling
order (ECF No. 91) “for the purpose of permitting him (and not Defendant Rosilyn
Jindal) to file an amended Motion for Summary Judgment).” (ECF No. 91,
PageID.1010.) Plaintiff bases this request on allegations that Defendant Jindal was
not cooperative during discovery, and underwent a deliberate strategy of delay to
frustrate the procedural progress of this case.
The rules of civil procedure afford district courts broad authority and
discretion to manage the discovery process in cases and control their dockets.
Marie v. American Red Cross, 771 F.3d 344, 366 (6th Cir. 2014). Rule 16(b)(4)
provides that a discovery schedule “may be modified only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The primary measure of Rule 16’s
‘good cause’ standard is the moving party’s diligence in attempting to meet the
case management order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613,
625 (6th Cir. 2002) (internal citation omitted). Generally, “[i]f [a] party was not
diligent, the inquiry should end.” Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir. 1992). Another “relevant consideration” is possible prejudice to
the non-moving party. Inge, 281 F.3d at 625. However, a showing of prejudice is
not required to be made where the moving party has failed to demonstrate its own
diligence. See Johnson v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn.,
502 F. App’x 523, 541 (6th Cir. 2012) (upholding denial of an amendment without
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a finding of prejudice); Korn v. Paul Revere Life Ins. Co., 382 F. App’x 443, 450
(6th Cir. 2010) (holding that prejudice is “merely a consideration” in the good
cause analysis). When seeking an extension of time after a deadline has already
passed, the moving party must also show “excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B).
Plaintiff has fallen far short in demonstrating “good cause” to justify
extending the Court’s scheduling order, let alone “excusable neglect.” The Court’s
scheduling order provided a discovery deadline of December 15, 2022, and the
same deadline to file motions related to discovery. (ECF No. 19.) This was ample
time for discovery to be completed and, even more noteworthy, Plaintiff did not
timely move within that timeframe to compel any discovery from Defendant
Jindal. Instead, Plaintiff waited eight months and then filed an untimely motion for
summary judgment. (ECF No. 82.) As Defendant Jindal points out, it was only
after the summary judgment motion was stricken as untimely that Plaintiff sought
to extend the deadline. Defendant elaborates:
Discovery is closed and the summary judgment deadline is long past.
Plaintiff’s arguments regarding discovery issues related to a subpoena to
DTMB and Defendant Jindal’s “promise” to file dispositive motion with
medical records are unavailing. Defendant Jindal has timely and fully
responded to discovery requests and is under no obligation to file a motion
for summary judgment. If Plaintiff needed his medical records, he had the
same power as Defendant Jindal. Further, none of these discovery issues
seemingly prevented Plaintiff from filing a dispositive motion in August
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2023; it is only now that he is prevented from doing so that he raises these
issues.
(ECF No. 98, PageID.1095.) The Court agrees, and Plaintiff’s motion to modify
the scheduling order (ECF No. 21) is DENIED.
2. Motion for the Recruitment of Counsel (ECF No. 92)
The Court next proceeds to Plaintiff’s “Motion for the Recruitment of
Counsel.” (ECF No. 92.) As a preliminary matter, the Court does not have the
authority to appoint a private attorney for Plaintiff in this civil matter. Even if the
circumstances of Plaintiff’s case convinced the Court to engage in a search to find
pro bono counsel, “[t]here is no right to recruitment of counsel in federal civil
litigation, but a district court has discretion to recruit counsel under 28 U.S.C. §
1915(e)(1).” Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014) (emphasis
added); see also Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014) (“Congress
hasn’t provided lawyers for indigent prisoners; instead it gave district courts
discretion to ask lawyers to volunteer their services in some cases.”). The
appointment of counsel in a civil case, therefore, “is a privilege and not a right.”
Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (internal quotation and
citation omitted).
The Supreme Court has held that there is a presumption that “an indigent
litigant has a right to appointed counsel only when, if he loses, he may be deprived
7

of his physical liberty.” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27
(1981). With respect to prisoner civil rights cases in particular, the Court of
Appeals for the Sixth Circuit has held that “there is no right to counsel. . . . The
appointment of counsel in a civil proceeding is justified only by exceptional
circumstances.” Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004) (internal
and external citations omitted). Accordingly, although the Court has the statutory
authority to request counsel for pro se plaintiffs in civil cases under 28 U.S.C. §
1915(e)(1), the exercise of this authority is limited to exceptional situations.
In evaluating a matter for “exceptional circumstances,” a court should
consider: (1) the probable merit of the claims, (2) the nature of the case, (3) the
complexity of the legal and factual issues raised, and (4) the ability of the litigant
to represent him or herself. Lince v. Youngert, 136 F. App’x 779, 782 (6th Cir.
2005); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993); Lanier v. Bryant,
332 F.3d 999, 1006 (6th Cir. 2003); Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir.
1985). The Court has considered these factors here and denies the motion.
Plaintiff seeks recruitment of counsel “for the limited purpose of obtaining
discovery,” arguing that Defendants have given him the “runaround” in attempting
to obtain discovery. (ECF No. 92, PageiD.1035) But I cannot find that this
argument alone sets forth “exceptional circumstances” that justify a request for
appointment of counsel.
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Plaintiff does not specifically aver that he is indigent. Although Plaintiff
requests counsel under 28 U.S.C. § 1915(e) and although he is a prisoner, he is not
proceeding in forma pauperis. Even if he did allege that he could not afford
counsel, there is no right to counsel in civil cases filed by indigent pro se prisoners.
Bennett, 110 F.App’x at 635 (citing Glover v. Johnson, 75 F.3d 264, 268 (6th Cir.
1996)). Many people are unable to afford counsel, although some are able to gain
the interest of a contingent fee lawyer or even an attorney who is willing to go
forward in the hope that attorney’s fees will later be rewarded. In any case, and
unfortunately, indigency is widespread among the prison population and is
certainly not an “exceptional circumstance. Thus far, Plaintiff has appeared able to
file motions, make rational arguments, and even achieve some success on his
motions. (See ECF Nos. 51, 53, 84.) Even if Plaintiff is arguing that his
incarceration makes discovery more difficult to obtain, the discovery rules make
no distinction between what is available to someone who is in jail or prison or
someone who is at complete liberty; nor do they substantively distinguish between
represented and in pro per parties. Moreover, difficulties in conducting discovery
exist in most prisoner or detainee civil rights cases and do not constitute
exceptional circumstances justifying appointment of counsel. Whorton v.
Deangelo, No. 21-11046, 2022 U.S. Dist. LEXIS 110548, at *4 (E.D. Mich. June
22, 2022) (citing Lafountain v. Martin, 2009 U.S. Dist. LEXIS 92369, 2009 WL
9

3255099, at *1 (W.D. Mich. Oct. 5, 2009)). And, unfortunately, such difficulties
often exist in general civil litigation where all parties are fully represented, indeed,
all too often in this Court’s view.
Finally, at this stage in the litigation, it is too early for the Court to judge the
merits of the claim. Due to the limited number of pro bono counsel who are
willing and available and the large number of prisoners who would like the help of
volunteer attorney services, the Court generally waits to seek pro bono counsel
until the case survives dispositive motion practice. Thus, absent exceptional
circumstances, seeking pro bono counsel at this stage of litigation would be
premature. Plaintiff’s “Motion for the Recruitment of Counsel” (ECF No. 92) is
thus DENIED.
3. Amended Motion for Sanctions for Noncompliance with Subpoena
(ECF No. 101)
Plaintiff also moves for sanctions against Non-Party the Michigan
Department of Technology Management and Budget (“DTMB”) related to
Plaintiff’s March 29, 2022 subpoena to DTMB. Plaintiff first moved against
DTMB in 2022 and, after some procedural hiccups, the Court directed DTMB to
fully comply with Plaintiff’s subpoena. (See ECF No. 80, PageID.879-80.)
Specifically, based on the papers before the Court, it appeared that DTMB had not
searched for all the requested email addresses and date ranges when it ran the
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requested email searches. (ECF No. 80, PageID.879-80). The Court based this on
discrepancies between DTMB’s response brief, which stated that it ran a search
“with the date range of September 1, 2018 through December 31, 2021” (ECF No.
55, PageID.533), which would include only a portion of Plaintiff’s requested
searches. The Court directed:
. . . DTMB SHALL comply with each of the four requests set forth in the
March 29, 2022 subpoena to produce documents, paying particular attention to
the emails referenced and the time periods specified (ECF No. 28-2,
PageID.220-225), preferably by supplementing both: (1) its April 7, 2022
response (ECF No. 27, PageID.200-203); and, (2) the April 26, 2022 supporting
affidavit (ECF No. 28-3).
(ECF No. 80, PageID. 880.)
Plaintiff claims that he did not timely receive the required supplemental
response, 1 and thus he attempted to file a motion for sanctions with the Court on
September 1, 2023. (ECF No. 101, PageID.1149.) On September 24, 2023,
Plaintiff received DTMB’s supplemental response along with a “preliminary
response” to the motion for sanctions, in which DTMB advised Plaintiff that the
motion for sanctions did not appear on the Court’s docket. (Id.)

DTMB has provided a certified mail receipt indicating that it timely sent the
subpoena response to Plaintiff on August 23, 2023. According to Plaintiff, he did
not receive the subpoena response in August, when DTMB originally sent it
because the prison claimed he was a “no show” to picking up mail. (ECF No. 101,
PageID.1149-50.) In any event, Plaintiff has now received the subpoena response.

1

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Plaintiff remailed the motion for sanctions to the Court, which was docketed
on October 12, 2023 (ECF No. 95), and DTMB responded (ECF 100). Plaintiff
then filed an “amended motion for sanctions” (ECF No. 101) and the Court denied
the initial motion as moot (ECF No. 102.) It is this amended motion that is now
before the Court.
Plaintiff claims that DTMB has still not complied with his discovery
requests and that DTMB is in violation of this Court’s August 4, 2023 order.
DTMB denies this. As explained in DTMB’s supplemental discovery response, its
original March 30, 2022 search parameters did in fact comply with Plaintiff’s
subpoena requests. The error came in DTMB’s response brief, filed with the
Court, in which DTMB “unintentionally omitted the applicable date range for the
search of [e-mail]; and only stated the date range applicable to the
email account of [e-mail].” (ECF No. 101, PageID.1159.) So,
according to DTMB’s supplemental discovery response, the exact searches
requested by Plaintiff were performed and produced (after redaction) to Plaintiff.
(Id. at 1159-60.) DTMB supports this assertion with a March 30, 2022 email
detailing the exact searches performed and a Supplemental Affidavit of Saige
Arend-Ritter, the DTMB Freedom of Information Act Coordinator and Litigation
Coordinator. Both of these documents were attached to DTMB’s supplemental
discovery response (See ECF No. 101, PageID.1159-60) and further attached to
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DTMB’s initial response to Plaintiff’s now-terminated original motion for
sanctions. 2 (See ECF 100-2, PageID.1135-1143.)
Plaintiff claims there are several things wrong with DTMB’s response.
First, Plaintiff points to DTMB’s March 20, 2022 email, in which DTMB
indicates in “Summary 3” that a search of Ream’s email produced two items (ECF
No.100-2, PageID.1139-1140), but according to Plaintiff those two documents
have not been produced. (ECF No.101, PageID.1150.)
Second, Plaintiff points to “Summary 1” of the email, in which DTMB
indicates that a search of Jindal’s email produced 28 items (ECF No.100-2,
PageID.1139), but DTMB had stated in its May 27, 2022 response to Plaintiff’s
motion to compel that DTMB had located 21 pages of records. (ECF No. 101,
PageID.1150-51.) Plaintiff argues that 21 pages does not account for 28 emails.
Third, Plaintiff argues, again, that there were five emails which were sent to
Ream during the relevant subpoena period which have not been included in the
discovery response. (ECF No.101, PageID.1151.) Plaintiff knows of these emails
because they were “inadvertently included . . . in the package of rejected
grievances that [Ream] returned to him.” (Id.) Plaintiff suggests this is evidence
that there are additional Reams emails responsive to his subpoena that have not
After Plaintiff filed his amended motion for sanctions, DTMB filed a response to
the amended motion but did not attach any exhibits, instead referencing the
exhibits attached to the initial response. (See ECF No. 106.)

2

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been produced. This issue was raised in Plaintiff’s initial motion to compel, and
Defendant had then explained that emails which may have existed in 2019 may no
longer have been retrievable in 2022. (Id., citing ECF No. 55, PageID.534-35.)
Fourth, Plaintiff complains that there were over 100 (53 for Jindal, and 85
for Ream) “unindexed” email hits which appeared in DTMB’s search, but which
were not produced to him. (ECF No.101, PageID.1153.) Plaintiff argues he is
entitled to the unindexed items.
Finally, Plaintiff claims that the March 30, 2022 email which DTMB relies
upon to prove it complied with the subpoena is “a blatant forgery.” (ECF No.101,
PageID.1151.) Plaintiff argues that while the email was “purportedly sent from
[DTMB] to attorney Eric M. Jamison at the Attorney General’s office” on March
30, 2022 at 2:15, the body of the email refers to searches that took place on March
30, 2022 at 18:02, 18:03, and 18:04, which would have been after the email was
sent. (ECF No.101, PageID.1151-52.)
Plaintiff argues that the “chicanery” of DTMB has caused Plaintiff to waste
time, money, and effort, and that the Court should hold DTMB in contempt and
impose sanctions against it for having failed to comply with the subpoena requests
or with this Court’s August 4, 2023 order. (ECF No. 101, PageID.1156.)
DTMB does not specifically respond to each of Plaintiff’s arguments, but
instead states generally that “DTMB has fully responded and complied with this
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Court[’]s order, dated August 4, 2023, and no further action is possible, or required
of DTMB. ” (ECF No.106, PageID.1196 (citing United States v. Bryan, 339 U.S.
323, 330 (1950).) DTMB elaborates:
DTMB provided plaintiff with an email from DTMB’s eDiscovery Support
team to the Attorney General’s Office. (ECF No. 100-2, PageID.1139-1140.)
Here, this email shows all searches, as sought by plaintiff, were completed
using each requested email address with applicable date ranges and search
terms. Each search was then collected and reviewed. The resulting 21 pages
of records were produced to plaintiff. (See Arend-Ritter Supplemental
Affidavit, ECF No.100-2, PageID.1142-1143.)
(ECF No.106, PageID.1196.) Thus, according to DTMB, all records responsive to
Plaintiff’s discovery requests have been provided.
While counsel for DTMB could have been far more specific in its response
brief, the Court is satisfied that DTMB has met its discovery obligations. As
DTMB argues, “The issue before the Court is whether the subpoena was complied
with, and it was. There is nothing else DTMB can do to comply with the
subpoena. It ran the searches that were requested and produced the resulting
information.” (ECF No.106, PageID.1197.)
Fundamentally, DTMB has offered an adequate explanation for why the
responses initially appeared incomplete, but were in fact complete: the error is
attributable to Counsel’s inartful drafting of the response brief in making it appear
that only some of the dates were searched. As to Plaintiff’s specific quibbles with

15

the discovery responses, the Court is not persuaded that any of the so-called
irregularities establish forgeries, fraud, or any other malfeasance by DTMB.
With respect to the “unindexed” items, DTMB explains that “unindexed
items are logos contained within signature blocks, blank files or other meaningless
system files. They do not contain user generated information.” (ECF No.106,
PageID.1196, n1.) The Court finds this response satisfactory, and also finds
satisfactory the explanation that emails which may have existed in 2019 could have
been routinely purged or for some other reason were not captured in the search.
Defendant has offered a sworn affidavit and a supporting email indicating that the
required search was performed and the results were provided. There is not much
more the Court can do.
As to the “missing” two pages that Plaintiff claims he did not receive, or the
21 pages instead of 28 emails, the Court is not convinced that DTMB withheld any
discovery. Instead, it seems more logical that 21 pages included all of the search
results, with some compressed on single pages. Indeed, a review of the produced
documents shows multiple emails and email strings contained on a single page.
(ECF No. 54, PageID.509-530.) Likewise, Plaintiff’s argument that the time
stamps do no not add up is hardly the smoking gun he claims. While it would have
been well for counsel to provide an explanation for the apparent inconsistency, the
Court does not find the time stamps, on their own, to be any indication of fraud.
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Indeed, the time stamps themselves are immaterial and unnecessary to any issue
before the Court. What is relevant is that Plaintiff requested certain searches be
performed, and the email indicates the required searches were performed. DTMD
supports this by affidavit ̶ which is of far greater evidentiary value to the Court
than the email ̶ averring that the searches were performed, and all responsive
documents produced. Anything beyond that will be left for cross examination at
trial.
C. Order
Accordingly, Plaintiff’s (1) Motion to Modify the Scheduling Order (ECF
No. 91); (2) Motion for the Recruitment of Counsel (ECF No. 92); and, (3)
Amended Motion for Sanctions for Noncompliance with Subpoena (ECF No. 101)
are all DENIED.
IT IS SO ORDERED. 3
Dated: May 15, 2024

Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
period of fourteen (14) days after being served with a copy of this order within
which to file objections for consideration by the district judge under 28 U.S.C. §
636(b)(1).
3

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