United States District Court, S.D. Georgia, Savannah Division
JEMME J. JENKINS, Individually, and JULIANNE GLISSON, Administrator of the Estate of Jimmie L. Alexander, Sr., Plaintiffs,
CORIZON HEALTH, INC., et al., Defendants.
Christopher L Ray, United States Magistrate Judge.
Alexander died after a delay in treatment of a blood clot
while a detainee at Chatham County Detention Center (CCDC).
Doc. 26-1. After complaining of pain in his leg the evening
of May 22, 2016, he was seen by medical staff but was not
immediately admitted to the infirmary. Defendants argue that
he was moved to an observation room in “receiving and
discharge, ” because there were no infirmary beds
available. See Depo. Mark Dambach, LPN at 104-132.
Alexander was not seen until 3:00 p.m. the next day, when the
Corizon Health physician evaluated him and determined he
required emergency care. See Depo. Guy Augustin,
M.D. at 161-166. Despite being rushed to the emergency room
for surgery the evening of May 23, 2016, Alexander died of
complications arising post-surgery. See Depo.
Anthony Avino, M.D. at 30-35, 52, 77 & 103. Plaintiffs
contend that, because Alexander was not admitted to the
infirmary where he could be seen by on-duty medical
providers, his treatment was delayed by 15 hours until he
could be seen by the Corizon Health physician. They further
contend that infirmary beds must have opened up during the 15
hours he was not being seen by a medical provider in the
observation room, and that Alexander should have been
admitted when they opened.
on deposition testimony, plaintiffs believe that the
admissions and discharges to the infirmary were memorialized
in writing. Doc. 43 at 5-6. The nighttime RN on duty on May
22, 2016, testified that Corizon Health providers regularly
kept a “discharge book” reflecting “the
time [patients] came in, and the time they left” while
she worked at the CCDC. See Depo. Montine Stokes, RN
at 40-42. Plaintiffs have been on the hunt for the discharge
book since, seeking it from Corizon Health (which has since
stopped providing medical services to CCDC), the Sheriff and
Chatham County (who contracts out medical services at CCDC
and thus has no access to medical records), and Correct
Health (a non-party which took over the contract to provide
medical services to CCDC). In their discovery responses,
these respondents again and again made clear that they did
not have the infirmary discharge book. Doc. 43 at Exhs. 9,
12, 15 & 17 (responses by the Sheriff and County); Exhs.
18, 20 & 23 (responses by Corizon Health); Exhs. 16 &
26 (affidavit of “no records” by non-party
thus have moved to compel production of the long-sought
infirmary discharge logs. Doc. 43. The relief they seek in
bringing their motion, however, is unclear. They explain:
This motion seeks to resolve the issue of who has the
requested records of infirmary discharge book for the [ ] two
day period, May 22-23, 2016. Or if the records no longer
exist, then who destroyed the records. None of the entities
who would have possession of these records has shed any light
on where this book is. If [ ] none of the entities have the
records, then Plaintiffs are entitled to know what happened
to them. Also, if appropriate, findings of fact and
inferences may be appropriate concerning the availability of
room at the infirmary on the night of May 22nd and day of May
23rd. DS Waters of Am., Inc. v Fontis Water, Inc.,
2012 U.S. Dist. LEXIS 192614, 11-12 (N.D.Ga. 9/12/2012)
[spoliation of evidence by destruction of documents]. A Court
Order is needed to bring this issue to a head so that the
involved entities who may have the document: (1) Corizon, (2)
Sheriff and (3) Correct Health, represent to this Court that
they do not have the [documents] and where they contend it is
located. Representations to the Court carry much greater
weight than representations made to Plaintiffs' counsel.
Also, by making this motion, Plaintiffs' counsel cannot
then be accused of being dilatory on this discovery issue.
Doc. 43 at 13. A motion to compel, of course, is not the
appropriate vehicle to seek redundant discovery responses or
an affidavit to support responses already submitted under the
assurance of Fed.R.Civ.P. 11.
respondents' unambiguous responses in both discovery and
their responses to this motion, it is clear that all disclaim
having “possession, custody, or control” over the
infirmary discharge logs, if they ever existed. So, there is
nothing to compel. The motion (doc. 43) must be
DENIED. Plaintiffs, however, have indicated
they will seek spoliation sanctions if the infirmary
discharge logs are determined to be unavailable, if they were
destroyed or otherwise lost. Doc. 43 at 14 (“if it is
determined that the records have been destroyed, then
findings of fact, such as an adverse inference may be
appropriate.”). So, plaintiffs will be given 14 days to
determine whether they wish to proceed with filing a motion
for sanctions in light of respondents' representations
that the infirmary logs, if they ever existed, are not in
their possession, custody, or control. If they fail to timely
file any such motion, the Court will deem the issue resolved.
final matter. While the Court appreciates the reason
plaintiffs had for believing the infirmary discharge logs
exist(ed), it is skeptical of their reasons for bringing a
motion to compel. After all, counsel for respondents had
represented, repeatedly, in writing and subject to Rule 11,
that they did not have the logs. Correct Health contends that
the motion to compel was frivolous, and that under the
mandatory fee-shifting provision of Rule 37 they are
entitled to an award of costs. Doc. 56; see Fed. R.
Civ. P. 37(a)(5)(B) (“If the motion is denied, the
court . . . must, after giving an opportunity to be heard,
require the movant, the attorney filing the motion, or both
to pay the party or deponent who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney's fees.”).
have not responded to Correct Health's request for fees.
They are, however, entitled to an opportunity to be heard.
Id. Plaintiffs are therefore
ORDERED to file, within 14 days of service
of this Order, their opposition (if any) to an award of costs
to respondents for their time expended in opposing the motion
to compel. If they do not oppose, they are
ORDERED to confer with respondents to reach
an agreement on costs and, within 14 days of service of this
Order, file a notice of their stipulation to costs with the