UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY DEWAYNE BEARD, JR., a legally

incapacitated person, by and through

JOHNETTE FORD, his legal guardian,

Plaintiff,

v.

CITY OF SOUTHFIELD, et. al.,

Defendants.

 /

Case No. 14-13465

Honorable Nancy G. Edmunds

OPINION AND ORDER ADOPTING IN PART THE MAGISTRATE JUDGE’S

SEPTEMBER 13, 2016 REPORT AND RECOMMENDATION [146] AND GRANTING

IN PART DEFENDANTS' MOTION FOR SANCTIONS [99]

Defendants have moved for sanctions against Plaintiff's counsel, Johnny Hawkins,

and Plaintiff's guardian, Johnette Ford, and Magistrate Judge Elizabeth Stafford has

provided the Court a Report and Recommendation ("R&R") on Defendants' motion. For

the reasons set forth below, the Court ADOPTS IN PART the R&R, GRANTS IN PART

Defendants' motion, and orders the following sanctions: (1) Hawkins must reimburse

Defendants half the reasonable expenses they incurred in litigating the motion; (2) Plaintiff's

claim for deliberate indifference is stricken; and (3) Ford cannot testify in Plaintiff's case in

chief. 

I. Background

 The R&R provides an extensive factual background, and the Court, having reviewed

the record de novo, adopts that background here. (See Dkt. 146, at 3-17.) To summarize,

Hawkins and Ford abused discovery procedures, and Defendants seek a variety of

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 1 of 12 Pg ID 6195
sanctions, including dismissal. Hawkins' misconduct included but was not limited to: (1)

violating the certification requirements of Federal Rule of Civil Procedure 26(g); (2) raising

a frivolous privilege objection; (3) filing a misleading response to a motion to compel; (4)

failing to present materials at a deposition; and (5) failing to reveal that Ford withheld

documents from production until pressed by the Court. (See id.) Ford's misconduct

included: (1) lying during her deposition; (2) testifying while high on medication; (3) altering

documents; (4) destroying documents; (5) and withholding documents from both Hawkins

and the Court. (See id.) 

Hawkins has objected that he did not receive a full and fair opportunity to defend

himself on Defendants' motion for sanctions, so a brief history of the recent proceedings

follows. Before the Magistrate Judge issued the R&R, she held two evidentiary hearings

on Defendants' motion. The first hearing, conducted on June 1, 2016, covered the conduct

of Hawkins (Dkt. 133), while the second, conducted on August 3, 2016, related to Ford.1

(Dkt. 145.) At the outset of the August hearing on Ford's conduct, the Magistrate Judge,

having reviewed the evidence from the June hearing about Hawkins, ruled orally that

Hawkins must pay half of Defendants' reasonable costs. (Dkt. 145, at 13-20.) The

Magistrate Judge then commenced hearing evidence against Ford. 

 The Magistrate Judge has since recognized that she "was mistaken" in issuing an

oral ruling because Defendants' motion requests dismissal, necessitating review by this

 1 The Magistrate Judge explained that she bifurcated these hearings to avoid creating

a conflict of interest between Ford and Hawkins. (Dkt. 146, at 9.) The Court agrees that

this was proper in light of Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 636 (6th

Cir. 2009) ("Courts must be particularly careful in conducting hearings to determine whether

sanctions should be imposed against both plaintiffs and their attorneys ....").

2

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 2 of 12 Pg ID 6196
Court. (Dkt. 146, at 14-15; see also 28 U.S.C. 636(b)(1).) Accordingly, in September, she

prepared the R&R adopted in part here. The R&R, which accounts for the evidence

presented at both hearings, ultimately recommends the same financial sanction for

Hawkins that the Magistrate Judge announced orally at the second hearing. (Dkt. 146, at

31.)

The R&R also concludes that: (1) Hawkins' conduct was sanctionable pursuant to

Federal Rules of Civil Procedure 26 and 37; and (2) Hawkins and Ford should both be

sanctioned under the Court's inherent authority. (Id. at 2.) It further recommends the

following sanctions: (1) ordering Hawkins to reimburse Defendants for half of the

reasonable expenses they incurred litigating their motion for sanctions; (2) ordering that

Ford be replaced as guardian; (3) ordering that Plaintiff's claim for deliberate indifference

be stricken; (4) ordering that Ford cannot testify in Beard's case in chief; and (5) denying

Defendants' request for dismissal. (Id. at 31.) 

Hawkins, Ford, and Defendants have all filed objections to the R&R. (Dkt. 147-48,

152.) For the reasons that follow, the Court adopts in part the Magistrate Judge's R&R and

orders the following sanctions: (1) Hawkins must reimburse Defendants half the reasonable

expenses they incurred in litigating the motion; (2) Plaintiff's claim for deliberate indifference

is stricken; and (3) Ford cannot testify in Plaintiff's case in chief. The Court does not order

dismissal.

II. Applicable Law

A. Standard of Review

When a party objects to portions of a magistrate judge's report and recommendation,

the Court reviews such portions de novo. Fed. R. Civ. P. 72(b). However, only specific

3

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 3 of 12 Pg ID 6197
objections that pinpoint a source of error are entitled to de novo review. Mira v. Marshall,

806 F.2d 636, 637 (6th Cir. 1986). General objections, or those that merely challenge the

magistrate judge's ultimate determinations, have "the same effects as would a failure to

object." Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). 

That is, such objections are invalid, and the Court must treat them as if they were waived. 

See Bellmore-Byrne v. Comm'r of Soc. Sec., 2016 WL 5219541, at *1 (E.D. Mich. Sept. 22,

2016) (citing id.). Furthermore, de novo review applies "only to matters involving disputed

facts," not arguments regarding the appropriate legal standard. Mira, 806 F.2d at 637

(internal quotation marks and citations omitted). 

III. Analysis

A. Hawkins' Objections

Hawkins enumerates fifteen objections; however, the Court can discern only six

distinct objections, and it overrules all six of them for the reasons below.

First, in various forms throughout objections numbered 1-2, 4, 6, 8-13, and 15,

Hawkins objects to the Magistrate Judge's findings that: (1) he is subject to sanctions under

the Rules 26 and 37; and (2) he and Ford are subject to sanctions under Court's inherent

authority. Given that these objections amount to general objections to the R&R, they are

invalid, and the Court overrules them because they have no merit. Howard, 932 F.2d at

509. 

Second, Hawkins objects throughout objections numbered 2, 4, and 5 that he should

not be sanctioned because "he did the best he could" to follow discovery rules. (Dkt. 147,

at 5-6.) However, Hawkins does not point to any portion of the record to support this

objection, nor does he identify an erroneous citation or application of law. This objection

4

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 4 of 12 Pg ID 6198
in all its forms is therefore invalid, and it is also overruled because it has no merit. Mira,

806 F.2d at 637.

Next, in "Objection #3," Hawkins objects that he did not have a full and fair opportunity

to defend himself during this motion for sanctions. (Dkt. 147, at 6-7.) In particular, Hawkins

argues that he was prejudiced by the Magistrate Judge's issuing an oral ruling regarding

financial sanctions for him before she heard all of the evidence regarding Ford's conduct. 

The Court, having examined the record de novo, overrules this objection for two reasons. 

First, any prejudice Hawkins might have suffered from that oral ruling has been remedied

by the Magistrate Judge's subsequent preparation of a written R&R that accounts for the

evidence heard at both hearings. Second, even if the second hearing had no bearing on

the Magistrate Judge's ultimate recommendation on financial sanctions, Hawkins had

ample opportunity to present his case at the first hearing. Hawkins was represented by an

attorney, had an opportunity to testify, and had the opportunity to question Ford. (Dkt.

133.) Accordingly, the record shows that Hawkins had a full and fair opportunity to defend

himself on the motion, and his third objection is overruled.

Fourth, in "Objection #7" and "Objection #14," Hawkins objects to the Magistrate

Judge's finding that he violated his duty of candor to the Court. Reviewing the record de

novo, the Court agrees with the Magistrate Judge that Hawkins violated his duty of candor. 

Hawkins obstructed the truth by submitting a frivolous privilege objection, filing a misleading

response to a motion to compel, failing to present materials at a limited deposition, and

failing to reveal that Ford withheld documents from production until pressed by the Court. 

Therefore, this objection is also overruled.

5

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 5 of 12 Pg ID 6199
Fifth, in "Objection #8" (the only objection for which Hawkins cites to the record), 

Hawkins objects to the Magistrate Judge's observation that Ford's deposition testimony

"suggests that [Hawkins'] inquiry [prior to Ford's first deposition] was insufficient." (Dkt.

147, at 14-15 (quoting Dkt. 146, at 21).) Hawkins argues that Ford's testimony "should

have not, in and of itself," compelled the Magistrate Judge to recommend that he be

sanctioned. (Dkt. 147, at 17.) The Court overrules this objection because the Magistrate

Judge did not base her recommendation for sanctions on the quoted statement; the R&R

even states that it "is unclear whether Hawkins conducted a reasonable inquiry ...." (Dkt.

146, at 20) (emphasis added). Instead, the Magistrate Judge's recommendation is based

on Hawkins' clear violations of Rules 26(g) and 37. Therefore, Hawkins' objection to the

cited portion of the R&R is irrelevant and overruled.

Finally, in "Objection #14," Hawkins appears to argue that the Magistrate Judge

applied the wrong legal standard in recommending that he could be sanctioned under the

Court's inherent authority. (Dkt. 147, at 21). The Court overrules this objection for two

reasons. First, the standard Hawkins cites, which appears in First Bank of Marietta v.

Hartford Underwriters Ins. Co., 307 F.3d 501 (6th Cir. 2002), does not apply to this case. 

Williamson v. Recovery Ltd. P'ship, 826 F.3d 297, 302 (6th Cir. 2016) (holding that the First

Bank standard applies only in cases where the plaintiff has filed a frivolous lawsuit). The

proper test for this case, where the alleged bad faith involves an attorney's failure to comply

with a court order, "is whether [counsel] showed 'bad faith by ... hampering [the]

enforcement of a court order.'" Williamson, 826 F.3d at 297 (6th Cir. 2016) (quoting

Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)). And, under this test, the Court agrees

with the Magistrate Judge that there are ample grounds for sanctioning Hawkins under the

6

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 6 of 12 Pg ID 6200
Court's inherent authority. For example, Hawkins hampered the enforcement of a court

order by filing a misleading objection to the motion to compel. 

Second, even if Hawkins' conduct did not justify sanctions under the Court's inherent

authority, Hawkins' conduct would remain sanctionable under Rule 26(g). Rule 26(g) 

"requires a court to impose sanctions for any violation without 'substantial justification.'" 

Jones v. Illinois Central R. Co., 617 F.3d 843, 854 (6th Cir. 2010) (citing Fed. R. Civ. P.

26)). Hawkins has not offered evidence of any substantial justification for his violation. 

Accordingly, Hawkins' final objection lacks legal and factual support, and it is overruled.

B. Ford's Objections

Ford lists thirty-two objections across sixty-two pages (Dkt. 152), but she never raises

a substantive challenge to a specific provision of the R&R, despite being advised by the

Magistrate Judge to do so. (See Dkt. 146, at 32.) Instead, Ford emphasizes irrelevant

facts and matters outside the record, insists on the accuracy of her assertions, bemoans

Defendants' litigation strategy, and challenges opposing counsel's moral and ethical

strictures. She also demands repeatedly that Defendants' motion be dismissed as a fraud

on the Court, objects to how the Magistrate Judge conducted the proceedings, and

criticizes the R&R generally.2

 Given Ford's failure to file a specific substantive objection,

as well as the lack of legal and factual support for her arguments, the Court treats her filing

as a failure to object entirely. Howard, 932 F.2d at 509; see also McCready v. Kamminga,

113 F. App'x 47, 49 (6th Cir. 2004) (holding that pro se plaintiff waived right to appeal a

 2 The Court notes that it has the authority to sanction Ford: "[I]nherent power is not

limited to sanctioning attorneys only; we can sanction a party as well." Stalley v. Methodist

Healthcare, 517 F.3d 911 (6th Cir. 2008) (internal citations omitted). And the Court "should

not shrink from exercising it when sanctions are justified by the circumstances." Id.

7

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 7 of 12 Pg ID 6201
report and recommendation where he filed a "rambling" 143-page objection devoid of legal

and factual support). Accordingly, Ford's objections are all overruled.

C. Defendants' Objections 

Defendants object to the R&R on three grounds. (Dkt. 148.) First, they object

that dismissal is the only appropriate sanction, and Defendants point to several facts on

the record that they believe compel dismissal of this case. (Id. at 9-19.) The Court,

having reviewed the record de novo, adopts the Magistrate Judge's analysis regarding

dismissal in its entirety (see Dkt. 146, at 27-31) and agrees that dismissal is not

warranted. 

To review, the Magistrate Judge noted correctly that courts in the Sixth Circuit

consider four factors when deciding whether dismissal is an appropriate sanction: (1)

whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or

fault; (2) whether the adversary was prejudiced by the party's failure to cooperate in

discovery; (3) whether the party was warned that failure to cooperate could lead to

dismissal; and (4) the availability of less drastic sanctions. (See id.; Harmon v. CSX

Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997).) The Magistrate Judge then

concluded reasonably that dismissal would be too harsh a sanction where the legally

incapacitated Plaintiff Beard did not contribute to the discovery abuses, Hawkins was

not stubbornly disobedient or willfully contemptuous, Ford's conduct might have resulted

8

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 8 of 12 Pg ID 6202
from mental deficits,3

 and the prejudice to Defendants was not apparent. (Dkt. 146, at

31.) 

Given that the Court agrees with the Magistrate Judge's conclusion regarding

dismissal, Defendants' first objection is overruled. See Carpenter v City of Flint, 723

F3d 700, 704 (6th Cir. 2013) ("[W]e have increasingly emphasized directly sanctioning

the delinquent lawyer rather than an innocent client ... because dismissing a plaintiff's

case with prejudice deprives a plaintiff of his day in court due to the inept actions of his

counsel.") (internal citations and quotation marks omitted); Beil v. Lakewood Eng'g and

Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994) ("Dismissal is the sanction of last resort.");

United States v. Shaffer Equip Co., 11 F.3d 450, 462 (4th Cir. 1993) ("Since orders

dismissing actions are the most severe, such orders must be entered with the greatest

caution."). 

Next, Defendants argue that the proposed financial sanction is improper because it

provides Defendants with only half of the costs to which they are entitled. (Dkt. 148, at

20-24.) The Court disagrees for two reasons. First, the discretion afforded this Court

under the Rules of Civil Procedure is broader than Defendants suggest. While Rule 26

mandates sanctions for violations, it uses the permissive "may" when outlining the type

of sanction a court should order: "The sanction may include an order to pay the

reasonable expenses, including attorney's fees, caused by the violation." Fed. R. Civ.

P. 26(g)(3) (emphasis added); see also Rojas v. Town of Cicero, Ill., 775 F.3d 906, 909

 3 Neither the Court nor the Magistrate Judge has made a finding that Ford in fact

suffered from mental deficits, for such analysis falls outside our expertise. However, in

considering the drastic remedy of dismissal, the Court believes that the evidence

suggesting Ford suffered from cognitive limitations should bear some weight.

9

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 9 of 12 Pg ID 6203
(7th Cir. 2015) (When imposing Rule 26 sanctions, "[i]dentifying the 'appropriate'

sanction is a task for the district court. It could be money, but it also could be a formal

(and public) reprimand or censure.").

Similarly, while Fed. R. Civ. P. 37(a)(5)(A) provides that the court must require the

party whose conduct necessitated the motion for sanctions to pay the movant's

reasonable expenses, it also states the following: "But the court must not order this

payment if: ... (iii) other circumstances make an award of expenses unjust." Id. 

(emphasis added); see also Laukus v. Rio Brands, Inc., 292 F.R.D. 485, 509 (N.D. Ohio

2013) ("Having concluded that [] conduct ... is sanctionable, the Court must determine

the appropriate penalty—one that will adequately compensate defendants, and deter

future litigants and counsel from engaging in similar discovery misconduct."). The

language in both rules thus indicates that the Court has flexibility when ordering

financial sanctions, regardless of whether the Court is relying on Rule 26 or Rule 37.

Second, the Sixth Circuit recently clarified that sanctions for discovery abuses are

not meant to be solely restitutive; that is, courts should not order sanctions aimed only

toward reimbursing the wronged party. Williamson, 826 F.3d at 305. Instead, "[i]t is

well established under Supreme Court and Sixth Circuit precedents that a court's

inherent power to sanction serves a punitive purpose, based on the need to deter

misconduct and vindicate the court's authority." Id. 

Therefore, neither the Rules of Civil Procedure nor case law compels the Court to

award all the costs Defendants have incurred in litigating this motion. The Court has

broad discretion to fashion punitive sanctions (id. at 306), and the Court believes that

the Magistrate Judge correctly concluded that ordering Hawkins to pay only half of

10

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 10 of 12 Pg ID 6204
Defendants' costs--and Ford to pay none--is appropriate. (See Dkt. 146, at 25.) As the

Magistrate Judge stated, "Ford's conduct was the primary cause" of the events that

prompted Defendants' motion for sanctions (id.), so Hawkins should not be held totally

responsible. At the same time, assessing costs to Ford seems inequitable given the

evidence of what the Magistrate Judge fairly characterizes as "neurologic limitations and

confusion."4 (Id. at 26.) Accordingly, Defendants' second objection is overruled.

Finally, Defendants argue that a sanction removing Ford as guardian is both

insufficient and beyond the Court's authority. (Dkt. 148, at 25-26.) The Court agrees

with the latter contention and finds that it does not have jurisdiction to order that Ford be

replaced as guardian. See Sorrentino v. Barr Laboratories, Inc., 397 F. Supp. 2d 418,

423 (W.D.N.Y. 2005) (holding that district court did not have jurisdiction to enter order

replacing person as guardian and representative); Todd v. Garrison, 417 F. Supp. 97,

102 (E.D. Mo. 1976) (holding that party contesting appointment of guardian must bring

challenge before the Probate Court: "A collateral attack upon the appointment before

this Court ... is impermissible."). Accordingly, the Court must reject the Magistrate

Judge's recommendation that Ford be replaced as guardian. 

However, the Court disagrees with Defendants' argument that another sanction

must be ordered. The remaining sanctions recommended by the Magistrate and

ordered by the Court suffice both as penalties for the misbehaving parties and as

expressions of the importance of adherence to discovery rules.

 4 Again, the Court is not making a finding that Ford suffers from mental deficits. It is

merely accounting for the evidence of Ford's disorientation as it considers the most

appropriate sanctions.

11

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 11 of 12 Pg ID 6205
IV. Conclusion

For the foregoing reasons, the Court ADOPTS IN PART the Magistrate Judge's

R&R and GRANTS IN PART Defendants' motion for sanctions. The Court orders the

following sanctions: (1) Hawkins must reimburse Defendants half the reasonable

expenses they incurred in litigating the motion; (2) Plaintiff's claim for deliberate

indifference is stricken; and (3) Ford cannot testify in Plaintiff's case in chief.

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: November 3, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of

record on November 3, 2016, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

12

2:14-cv-13465-NGE-EAS Doc # 155 Filed 11/03/16 Pg 12 of 12 Pg ID 6206