Seales v. Detroit, City of et al
Filing
129
ORDER DENYING PLAINTIFF'S MOTION TO ALLOW THE JURY TO INSPECT THE JAILS WHERE PLAINTIFF WAS UNLAWFULLY INCARCERATED [#113], GRANTING PLAINTIFF'S MOTION TO STRIKE UNDISCLOSED WITNESSES BILLIE BRYANT AND JASON LANE [#115], DENYING EMERGENCY M OTION TO ADJOURN TRIAL OR ALTERNATIVELY TO DELAY COMMENCEMENT OF DEFENDANT'S PRESENTATION OF PROOFS UNTIL WEDNESDAY JULY 25, 2018 [#126] AND GRANTING PLAINTIFF'S MOTION TO COMPEL AND MOTION TO SHOW CAUSE AS TO NON-PARTY, WAYNE COUNTY PROSECUTORS OFFICE, FOR FAILURE TO PRODUCE COMPLETE AND UN-REDACTED FILE [#128]. Signed by District Judge Gershwin A. Drain. (TBan)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARVIN SEALES,
Case No.: 12-cv-11679
Honorable Gershwin A. Drain
v.
THOMAS ZBERKOT,
Defendant.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION TO ALLOW THE JURY
TO INSPECT THE JAILS WHERE PLAINTIFF WAS UNLAWFULLY
INCARCERATED [#113], GRANTING PLAINTIFF’S MOTION TO
STRIKE UNDISCLOSED WITNESSES BILLIE BRYANT AND JASON
LANE [#115], DENYING EMERGENCY MOTION TO ADJOURN
TRIAL OR ALTERNATIVELY TO DELAY COMMENCEMENT OF
DEFENDANT’S PRESENTATION OF PROOFS UNTIL WEDNESDAY
JULY 25, 2018 [#126] AND GRANTING PLAINTIFF’S MOTION TO
COMPEL AND MOTION TO SHOW CAUSE AS TO NON-PARTY,
WAYNE COUNTY PROSECUTORS OFFICE, FOR FAILURE TO
PRODUCE COMPLETE AND UN-REDACTED FILE [#128]
I.
INTRODUCTION
Trial in this matter is set to commence on July 17, 2018. The Court set the
instant trial date on April 2, 2018, upon the case’s remand from the Sixth Circuit
Court of Appeal’s decision affirming this Court’s denial of qualified immunity to
Defendant Thomas Zberkot. The parties appeared for a final pretrial conference
on June 25, 2018 and on June 26, 2018.
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Presently before the Court are the parties’ recently filed motions. See Dkt.
Nos. 113, 115, 126 and 128. The Court notes the issues presented in the instant
motions were not raised by the parties during the final pretrial conference in this
matter. Upon review of the parties’ briefing, the Court concludes that oral
argument will not aid in the disposition of these matters. Accordingly, the Court
will decide the motions on the briefs. See E.D. Mich. L.R. 7.1(f)(2).
After careful consideration of the present motions and briefing, the Court
will deny the Plaintiff’s Motion to Allow the Jury to Inspect the Jails where
Plaintiff was Unlawfully Incarcerated, will grant Plaintiff’s Motion to Strike
Defendant’s Undisclosed Witnesses Billie Byrant and Jason Lane, will deny the
Defendant’s Emergency Motion to Adjourn Trial, or Alternatively, to Delay
Presentation of Defendant’s Proofs until July 25, 2018, and will grant Plaintiff’s
Motion to Compel and Motion to Show Cause.
II.
LAW & ANALYSIS
A. Plaintiff’s Motion to Allow the Jury to Inspect the Jails Where
Plaintiff Was Unlawfully Incarcerated
In his first motion, Plaintiff seeks an Order permitting the jury to inspect
the Wayne County Jail and the Detroit Police Station lockup where he was held
for a period of thirteen days. Plaintiff asserts that the average juror has not seen
a jail cell block and might have difficulty understanding what Plaintiff
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experienced by being unlawfully detained. Plaintiff maintains that the jury will
need to view the Wayne County Jail and the police station in order to better
understand his damages. In the alternative, Plaintiff requests that the Court allow
counsel entry into the Wayne County Jail and Northeast Precinct lockup for the
purpose of taking photographs or video of these locations.
Conversely, Defendant maintains that if the Court were to permit the jury
to view the jail and police station, this would open the door for Defendant to now
cross examine Plaintiff regarding his prior incarcerations. Moreover, Defendant
maintains that Defendant had no role in detaining Plaintiff in the jail or the police
department lockup, therefore Plaintiff’s request is irrelevant.
Additionally,
Defendant asserts that detainees are no longer held at the same location as where
Plaintiff was originally held prior to transport to the jail. Thus, the Northeast
Precinct lockup is no longer in the same state or condition as it was on January
18, 2012, the date that Plaintiff was detained. Defendant further asserts that
photographs or video of the subject locations should likewise not be permitted
because Plaintiff did not include such proposed exhibits on his portion of the
proposed joint final pretrial order. Lastly, Defendant maintains that the probative
value of this evidence is substantially outweighed by the danger of unfair
prejudice, as well as will cause juror confusion and undue delay.
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Based on the foregoing arguments, the Court will deny Plaintiff’s request
to allow the jury to view the jail or police lockup, as well as his request to take
photographs and video of these locations. As an initial matter, Plaintiff’s request
is untimely. Moreover, the Northeast precinct is no longer in the same condition
or state as it was on the date of Plaintiff’s detention and there is no evidence that
the Wayne County Jail has remained unchanged since Plaintiff’s detention in
2012. The present motion is not only untimely but seeks to introduce evidence
that is irrelevant and will likely cause needless delay and confuse the jury.
B. Plaintiff’s Motion to Strike Defendant’s Undisclosed Witnesses
Billie Bryant and Jason Lane
In his next motion, Plaintiff seeks to preclude previously undisclosed
witnesses, Billie Bryant and Jason Lane, Detroit Police Officers, from testifying
at trial. Plaintiff maintains that it was not until July 6, 2018 that Defendant
disclosed his intention to introduce the testimony of these witnesses at trial,
which is well beyond the deadline of March 14, 2016 for disclosure of lay
witnesses and is nearly two years after the expiration of fact discovery in this
matter.
Defendant counters that these witnesses were not known or available to
him prior to the deadline for filing his witness list, nor prior to the close of
discovery. Defendant asserts that Bryant was the detention officer at the time
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Plaintiff was brought to the station for booking. Bryant was involved in
fingerprinting Plaintiff and obtaining information for his intake form. Lane was
the LEIN operator at the time and he checked to verify the warrant. Defendant
asserts that minimal due diligence by Plaintiff would have uncovered these
witnesses and Plaintiff will not be prejudiced if they are allowed to testify.
Contrary to Defendant’s argument, Plaintiff will be prejudiced if
Defendant is allowed to introduce two witnesses who have never been disclosed
to the Plaintiff. Defendant cannot argue that the untimeliness of identifying
these witnesses is due to Plaintiff’s failure to perform minimal due diligence
when Defendant likewise failed to engage in minimal due diligence to uncover
these individuals prior to the expiration of the discovery cutoff and mere weeks
before the commencement of trial. The Court will therefore grant the Plaintiff’s
motion to strike these witnesses and will preclude their testimony at trial.
C. Defendant’s Emergency Motion to Adjourn Trial, or
Alternatively, to Delay Defendant’s Presentation of Proofs until
June 25, 2018
In his present motion, Defendant seeks to adjourn the trial in this matter,
or alternatively to delay the presentation of his proofs until July 25, 2018
because a purported material witness, Sergeant Steve Faith, is unavailable to
attend trial due to a pre-planned trip to Florida. Sergeant Faith was the task
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force officer in charge of the Detroit Fugitive Apprehension Team with whom
Defendant was working with at the time of Plaintiff’s arrest.
Plaintiff objects to a postponement of the trial. Plaintiff further objects to
Defendant’s requested alternative relief to permit him to present his proofs eight
days after the commencement of trial because this would prejudice Plaintiff by
impacting the flow of trial and potentially cause jurors to forget Plaintiff’s
proofs and otherwise frustrate the trial process. Moreover, Plaintiff notes that
on June 25, 2018 during the final pretrial conference, his counsel requested a
short adjournment of the July 17, 2018 trial date in order to take a pre-paid
vacation with his family to Canada, which was denied by this Court.
Based on the parties’ briefing, the Court finds that an adjournment of this
six-year old matter is unwarranted. It is simply inexplicable that counsel for
Defendant was unaware of Sergeant Faith’s vacation plans at any time prior to
July 11, 2018. This trial has been scheduled since April 2, 2018. Defendant’s
counsel should have contacted Faith, a purported material witness, prior to July
11, 2018 to advise him of the July 17, 2018 trial date. Defendant is not entitled
to an adjournment of the trial or to a delay for the presentation of his proofs.
His motion is therefore denied.
D. Plaintiff’s Motion to Compel and Motion to Show Cause as to
Non-Party, Wayne County Prosecutor’s Office, for Failure to
Produce Complete and Unredacted File
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Plaintiff’s last motion relates to the Wayne County Prosecutor’s Office
and its file on Marvin Seales/Roderick Siner, case numbers, 10-60301(Dist. Ct.
No.) and 12-007235-01FC (Circ. Ct. No.). Plaintiff served a subpoena requesting
the subject file on July 10, 2018.
Assistant Prosecuting Attorney Suzy Taweel timely responded and
produced the file; however portions of many documents were redacted with vital
information and emails from former prosecutor Shannon Walker.
Plaintiff
inquired as to the status of the file, and Taweel responded that the file was scanned
into the computer and the original file was destroyed. Plaintiff believes that the
emails from Walker still exist and can be located and produced by a diligent
search which will reveal the un-redacted versions of most of the documents in the
file.
Rule 45 authorizes the Court to issue an order compelling complete
response and production to a subpoena. Accordingly, the Court will grant
Plaintiff’s Motion to Compel and Motion to Show Cause.
III.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Allow the Jury to Inspect
the Jails Where Plaintiff was Unlawfully Incarcerated [#113] is DENIED.
Plaintiff’s Motion to Strike Defendant’s Undisclosed Witnesses Billie
Byrant and Jason Lane [#115] is GRANTED.
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Defendant’s Emergency Motion to Adjourn Trial, or alternatively, to Delay
Commencement of Defendant’s Presentation of Proofs Until Wednesday, July 25,
2018 [#126] is DENIED.
Plaintiff’s Motion to Compel and Motion to Show Cause as to Non-Party,
Wayne County Prosecutor’s Office, for Failure to Produce Complete and
Unredacted File [#128] is GRANTED. The Wayne County Prosecutor’s Office
shall produce the un-redacted file for Marvin Seales/Roderick Siner, case
numbers: Dist. Ct. No. 10-60301 and Circ. Ct. No. 12-007235-01FC, including
but not limited to the un-redacted emails from former Prosecutor Shannon Walker
or SHOW CAUSE in writing, why it cannot produce same no later than 1:00 p.m.,
on Tuesday, July 17, 2018. Counsel for Plaintiff shall email and hand deliver a
copy of the instant order to the Wayne County Prosecutor’s Office no later than
1:00 p.m. on July 16, 2018.
The hearing scheduled for 2:00 p.m. on July 16, 2018 SHALL PROCEED
in order to address the parties’ exhibits and any outstanding authentication issues.
SO ORDERED.
Dated: July 16, 2018
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 16, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk
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