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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT JOHANNES, et al

Plaintiff,

v. Case No 2:14-cv-11691-LLM-MKM

Hon. Laurie L. Michelson

HEIDI WASHINGTON and Magistrate Judge Mona K. Majzoub

DR. DALTON SANDERS, D.D.S.,

Defendants.

_____________________________/

PLAINTIFFS’ MOTION FOR IMMEDIATE CONSIDERATION

AS TO

MOTION TO COMPEL PRODUCTION OF

HEALTH CARE REQUESTS FORMS

AND

MOTION TO EXPEDITED DECISION ON PRODUCTION MOTION

AND

BRIEF IN SUPPORT

Plaintiffs respectfully request this Honorable Court to grant the above 

motions for the following reasons.

1. Plaintiffs sought concurrence in this motion but it was denied.

2. At April 19, 2016 status conference, there was a discussion of the Health 

Care Request forms (HCRs). Defendants conceded that Plaintiffs had requested 

these documents through discovery requests and Defendants had replied that the 

HCRs were not retained. See R. 130, Plaintiffs’ Sixth Motion to Compel 

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Production of Documents Re: Health Care Request Forms and R. 130-4, Response 

to Document Request No. 44.

3. After the Clinic had taken the depositions of other dental staff in a different 

lawsuit than this one, Plaintiffs became aware that the dental offices kept the HCRs 

if the prisoners were placed on Dental Appointment Lists or were scheduled for 

dental treatments in the near future.

4. At this Status Conference, Defendants’ Counsel Govorchin admitted that 

approximately the end of June or the first of July of 2015, Defendants’ counsel had 

issued a request to MDOC that all HCRs be preserved, and that MDOC now has 

copies of all the HCRs from July 1, 2015 to present.1

5. However, instead of supplementing the discovery response (Fed.R.Civ.P. 

26(e)(1)(A)) where it was denied that HCRs were retained, Defendants failed to 

supplemental the original denial. See R. 130, Plaintiffs’ Sixth Motion to Compel 

Production of Documents Re: Health Care Request Forms and R. 130-4, Response 

to Document Request No. 44. Defendants took no action to inform Plaintiffs’ 

counsel that the requested HCRs actually existed, MDOC was preserving these, 

and Defendants will provide a copy of those documents that we have within 30 

																																																												 1 On April 22, 2016, numerous depositions were taken in another dental case that is 

pending before the United States District Court for the Western District of 

Michigan. Murphy v. Joboulian, et al., Case No. 1:15-cv-657. One of the 

defendant in that other case testified that he has boxes of the first page of the HCRs 

in his dental office at the Central Michigan Correctional Facility. Counsel Manville 

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days. Defendants took no steps to supplement this discovery response after July 1, 

2015.

6. Plaintiffs’ Counsel were surprised that Defendants’ Counsel Govorchin 

admitted that he had MDOC start preserving the HCRs from July 1, 2015 to 

present.

7. However, what was more surprising was the admission of Counsel 

Govorchin that he had not supplemented the original denial of the preservation of 

HCRs as required by Fed.R.Civ.P. 26(e)(1)(A). See Barlow v. Gen. Motors Corp. .,

595 F.Supp.2d 929, 935–36 (S.D.Ind. 2009) (Fed.R.Civ.P. 26(e)(1)(A)-(B). Rule 

26(e) “was intended to ensure prompt disclosure of new information, not to allow 

parties to spring late surprises on their opponents under the guise of a ‘supplement’ 

to earlier disclosures.”); Edwards v. Nat'l Vision Inc., 946 F.Supp.2d 1153, 1159–

60 (N.D.Al. 2013) (holding that identification of new evidence three months after 

close of discovery was incompatible with Rule 26(e)(1)(A)'s requirement that 

discovery responses be supplemented in a timely fashion).

8. Approximately three (3) months after he had directed the HCRs be 

preserved, Defendants’ Counsel Govorchin admitted on the record at a deposition 

of Dentist Taylor that the HCRs did not exist. This denial at the deposition was 

made even though Counsel Govorchin had directed that the HCRs be retained 3 

months earlier.

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Mr. Govorchin: Like for instance, do copies of substantive kites 

exist, no. Do a record of how many kites were entered exist, you 

know, it’s yes.

See attached Exhibit 1, page 311, Taylor Deposition (bold emphasis added).

9. In another case, Counsel in this matter obtained a grievance response stated 

the HCRs were required to be retained by policy.

SUMMARY OF STEP II REASON FOR APPEAL: Grievant 

states that per PD 03.04.101 that the kite needs to be kept until 

treatment is completed. Grievant states he had not received 

treatment therefore the kite should still be available.”

SUMMARY OF STEP II INVESTIGATION: Per PD 03.04.101 

the policy does state that the kite is kept however it is not kept in 

the chart. It is to be kept in an administrative file until the 

appointment has been completed.”

Exhibit 2, at 2. The second-level grievance reviewer stated that the HCRs are 

retained until the dental care is completed. This statement is contrary to the 

discovery response by the Defendants. It must be remembered that this grievance 

response is dated in 2013 and the discovery response is dated in April 2015. This 

retention of HCRs was in existence from at least 2009 to present. The HCRs were 

kept in the dental offices in an administrative folder or boxes until dental care was 

completed and not discarded as claimed by the Defendants.

10. The motion to obtain the Dental Care Requests was filed on January 5, 2016, 

and sufficient time had passed between the filing of R. 130 and the status

conference so that these HCRs should have been produced as supplemental 

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discovery responses, however, even though required by law to provide 

supplemental discovery responses, none were provided

11. At this conference, the present Plaintiffs were given seven (7) months to 

obtain additional plaintiffs that had exhausted the grievance process as required by 

the grievance policy of MDOC and by law.

12. Presently there existed approximately 40,000 prisoners confined with the 

Michigan Department of Corrections.

13. It is going to be extremely difficult to seek from a pool of 40,000 prisoners 

those prisoners who had requested dental care in the last year or two; to contact 

these prisoners to find out if they were placed on waiting lists; then to find out if 

they had exhausted the grievances process properly; then, if not properly 

exhausted, whether they can file a second grievance to properly exhaust; and then

wait for 120 days, or more if extensions have been granted, to determine who had 

exhausted the grievance process,. PD 03.02.130, Paragraph S., eff. Date 07/09/07

14. The way to reduce the time needed to find prisoners that have sought dental 

care and were placed on waiting list is for the Court to order that Defendant 

provide Plaintiffs the HCRs preserved by the MDOC since approximately July 1, 

2015 to April 15, 2016. Defendants should be ordered to produced these HCRs 

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within 15 days of the Court’s order.2 If this is done, Plaintiffs should be able to 

meet the seven (7) month time frame set by this Court.

15. In its Order, this Court should state that Defendants do not have to gather all 

the HCRs at their counsel’s office before producing them. It should be ordered 

that as a set of HCRs comes in from each different prison that these be sent to 

Counsel Manville within 48 hours. In fact, Counsel Manville will drive to the 

office of Defendants’ counsel to pick these documents up each day if necessary.

16. Defendants will not be unduly prejudiced by this Court granting this motion 

because Fed.R.Civ.P. 26(e)(1)(A)) obligated them to produce these documents and 

not place the burden on Plaintiffs to discover that the denial of the existence of 

HCRs was not accurate and that Defendants had failed to supplement this denial.

17. Plaintiffs are requesting that the briefing schedule as to this motion be 

expedited due to the seven (7) month time limit that they have to file an amended 

complaint. Defendants will not be unduly prejudiced by such an order due to four 

(4) attorneys being assigned to this case. Further, this motion is straightforward 

and should not require extensive legal research or writing.

																																																												 2 In the discovery request for the HCRs, Plaintiff had requested that the HCRs be 

provided on a disk in adobe format so that the documents would be searchable. 

This Court should order that the HCRs be produced on a disk in adobe format. 

Plaintiffs should not be charged a fee when there will be no use of a copying 

machine or printer to produce these documents in paper format.

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18. Plaintiffs are requesting that if this Court deemed necessary that it suspend 

the time allowed for Defendants to file a written response and Plaintiffs filing a 

reply so that a telephonic conference call, or appearance at the Court, for argument 

of this motion due to exigent nature of this request.

WHEREFORE, the Plaintiffs respectfully request this Court to grant the 

motion for immediate consideration, to expedited the briefing schedule, and to 

grant the motion requiring production of the Health / Dental Care Request forms 

from the date of July 1, 2015 through April 15, 2016.

Respectfully submitted,

/s Daniel E. Manville Robert Gittleman Law Firm, 

Daniel E. Manville (P39731)

Director, Civil Rights Clinic

Co-Counsel for Plaintiff

Michigan State University College of Law 

610 Abbot Road Robert Gittleman, (P 14025)

East Lansing, MI. 48823 Tracie R. Gittleman, (P 45176)

517-33913-9690 (office) Attorneys for Plaintiff

517-336-8089 (fax) 31731 Northwestern Highway,

daniel.manville@law.msu.edu Suite 101E

Farmington Hills, MI 48334

(248) 737-3600

PROOF OF SERVICE

I, Daniel E. Manville certify, under penalty of perjury, that on April 24, 2016, I 

caused a copy of the above document to be served by the ECF system on 

Defendants’ counsel.

/s/ Daniel E. Manville

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