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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAFINKA STOJCEVSKI, individually 

and as Personal Representative of the 

Estate of DAVID STOJCEVSKI, 

 Civil Case No. 15-11019 

 Plaintiff, Honorable Linda V. Parker 

v. 

COUNTY OF MACOMB, et al. 

 Defendants. 

_____________________________________/ 

OPINION AND ORDER REJECTING DEFENDANTS’ OBJECTIONS TO 

MAGISTRATE JUDGE’S SEPTEMBER 15, 2017 ORDER AND AFFIRMING 

ORDER

 This is a civil rights action arising from the death of Plaintiff’s decedent while 

incarcerated at the Macomb County Jail. On May 30, 2017, Plaintiff filed a motion 

seeking leave to file a Second Amended Complaint and to extend by ninety days the 

deadlines in the scheduling order. Plaintiff’s proposed amended complaint added inter 

alia eleven Macomb County corrections officers. The Court referred Plaintiff’s motion 

to Magistrate Judge David R. Grand, who granted the motion on September 15, 2017. 

(ECF No. 99.) Defendants Macomb County, Anthony M. Wickersham, and Michelle M. 

Sanborn (collectively “County Defendants”) filed objections to Magistrate Judge Grand’s 

order on September 29, 2017. (ECF No. 109.) The County Defendants argue that 

Magistrate Judge Grand’s decision rests on a factual error and is contrary to law. 
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 When a party objects to a magistrate judge’s non-dispositive decision, the 

reviewing court must affirm the magistrate judge’s ruling unless the objecting party 

demonstrates that it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a); 28 

U.S.C. § 636(b)(1)(A). The “clearly erroneous” standard does not empower a reviewing 

court to reverse a magistrate judge’s finding because it would have decided the matter 

differently. See, e.g., Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74 (1985). 

Instead, the “clearly erroneous” standard is met when despite the existence of evidence to 

support the finding, the court, upon reviewing the record in its entirety, “is left with the 

definite and firm conviction that a mistake has been committed.” Id. (quoting United 

States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). For the reasons that follow, this 

Court finds no error in Magistrate Judge Grand’s analysis. 

 The County Defendants first contend that Magistrate Judge Grand committed a 

factual error when he concluded that Plaintiff diligently conducted discovery and was 

delayed by the County Defendants in identifying the eleven corrections officers she 

sought to add as defendants. The County Defendants indicate that on September 16, 

2016—nearly 9 months before the close of discovery—they provided Plaintiff with a 

copy of a mental health logbook from the period of the decedent’s housing in the jail’s 

Mental Health Unit. The County Defendants maintain that the logbook contained the 

names of each corrections officer on the unit, as well as their assigned shift. 

 This Court cannot find that Magistrate Judge Grand erred in concluding that the 

logbook did not inform Plaintiff’s counsel of what they needed to know to amend the 

Complaint. The logbook appears to identify by last name the officers on each shift. (See 
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ECF No. 109-2.) However, the entries are not comprehensive and do not identify what 

each corrections officer did or saw or which entries are made by which officers. Thus, 

they do not provide the specific identity of the corrections officers who interacted with 

the decedent and what their interactions were. For that reason, it was not error for 

Magistrate Judge Grand to accept Plaintiff’s assertion that her counsel had to conduct the 

“arduous and time-consuming endeavor” of reviewing 240 hours of videotape to identify 

precisely what interaction each corrections officer had with the decedent. As Plaintiff’s 

counsel was aware from the Court’s November 9, 2015 opinion and order dismissing 

officers named in Plaintiff’s First Amended Complaint (see ECF No. 42), any proposed 

amendment submitted without alleging the specific conduct of each officer would have 

been futile. 

 The County Defendants also argue that Magistrate Judge Grand’s decision is 

contrary to this Court’s November 9 decision. Citing footnote 6 of the decision, the 

County Defendants contend that the Court indicated Plaintiff could later amend her 

pleading only to include individuals originally named and dismissed, which meant only 

two of the eleven corrections officers included in the Second Amended Complaint (i.e., 

Paul Harrison and John Talos). 

 After concluding that Plaintiff failed to identify the individual defendants’ 

personal involvement in the alleged constitutional violation and therefore should be 

dismissed, the Court advised in footnote 6: 

The Amended Complaint reflects that [Plaintiff’s decedent] had a serious 

medical need to which someone was indifferent and that over the course of 

several days, he exhibited signs of distress. The Court wants to be clear that 
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if, through discovery, Plaintiff uncovers evidence suggesting that any 

dismissed individual was aware of [the Plaintiff’s decedent]’s condition 

during this period and was deliberately indifferent to his serious medical 

needs, Plaintiff may move to re-name that individual as a party to this 

lawsuit at that time. 

(ECF No. 42 at Pg ID 898.) This language does not address Plaintiff’s ability to seek a 

subsequent amendment adding individuals not previously named. Instead, what the 

Court clearly was conveying was that its dismissal of particular individuals did not 

preclude Plaintiff from later seeking to rename them in this action. 

 Finally, the County Defendants argue that Magistrate Judge Grand’s decision is 

contrary to law because he applied the wrong legal standard in evaluating Plaintiff’s 

motion. Citing Leary v. Daeschner, 349 F.3d 888, 905-06 (6th Cir. 2003), the County 

Defendants maintain that a party should be permitted to amend a pleading only upon a 

showing of “good cause” when the request to amend requires the modification of a Rule 

16 scheduling order. In Leary, the Sixth Circuit held that once the deadline for amending 

the pleadings in the scheduling order expires, a party seeking an amendment must show 

good cause for failing to timely seek the amendment before the propriety of the 

amendment will be considered under Federal Rule of Civil Procedure 15. Leary, 349 

F.3d at 905-06. The scheduling order in the present matter did not set a deadline for the 

parties to amend their pleadings, however. (See ECF No. 64.) In any event, this Court 

concludes that good cause was established. 

 Pursuant to Leary, a party seeking to amend must “show good cause for failure to 

move for leave to amend before expiration of the deadlines in the court’s scheduling 

order” and a lack of prejudice to the non-movant. Leary, 349 F.3d at 905-06. Magistrate 
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Judge Grand in fact evaluated both considerations in his decision, although in the context 

of the factors relevant to a request to amend under Rule 15. First, Magistrate Judge 

Grand evaluated whether there was justification (i.e., good cause) for Plaintiff’s failure to 

seek the requested amendments earlier. (See ECF No. 99 at Pg ID 2142-44.) Next, he 

considered whether Defendants were unduly prejudiced by the amendment. (Id. at Pg ID 

2144-45.) This Court finds no error in Magistrate Judge Grand’s analysis of those 

considerations. 

 In short, the Court rejects the County Defendants’ objections to Magistrate 

Judge Grand’s September 15, 2017 order and AFFIRMS the decision. 

IT IS SO ORDERED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: February 27, 2018 

I hereby certify that a copy of the foregoing document was mailed to counsel of record 

and/or pro se parties on this date, February 27, 2018, by electronic and/or U.S. First Class 

mail. 

 s/ R. Loury 

 Case Manager