Hardy v. Whitaker

               UNITED STATES DISTRICT COURT                              
               EASTERN DISTRICT OF MICHIGAN                              
                      SOUTHERN DIVISION                                  

GREGORY HARDY,                                                           
                             Case No. 24-11270                           
                     Plaintiff,  Honorable Thomas L. Ludington           
                              Magistrate Judge Elizabeth A. Stafford     
v.                                                                       

WHITAKER, et al.,                                                        

                  Defendants.                                            


              ORDER ADDRESSING MOTIONS AND                               
                   SCHEDULING A HEARING                                  
            (ECF NOS. 140, 142, 144, 154, 155, 157, 158)                 


    Plaintiff Gregory Hardy, proceeding pro se, sues law enforcement     
officials with the Flint Police Department and the Genessee County Jail   
under 

42 U.S.C. § 1983

.  ECF No. 1. The Honorable Thomas L. Ludington     
referred the case to the undersigned for all pretrial matters under 

28 U.S.C. § 636

(b)(1).  ECF No. 10.  Various motions are pending.  The Court now    
GRANTS the Genessee County defendants’ motion to strike and quash the     
deposition notice and deposition by written questions of  Dr. Muhammed    
Shamim.  ECF No. 140.  Other issues will be addressed as outlined below   
at a hearing on October 15, 2025, at 3:00 p.m.                            
                                 A.                                      
    The Genessee County defendants argued in their motion to strike      

and quash the deposition notice and deposition by written questions of Dr. 
Muhammed Shamim that Hardy failed to include their questions in the       
notice.  ECF No. 140; ECF No. 140-2.  Though a party may conduct a        

deposition by written questions, the opposing parties have a right to submit 
cross-examination questions.  Fed. R. Civ. P. 31(a).                      
    Hardy should know that opposing counsel had a right to submit cross  
examination questions, as the Honorable Stephen J. Murphy addressed the   

issue in a case filed by Hardy in 2009.  “That rule requires that written 
deposition questions be served not only on the deponent but also on the   
other parties to the case, Fed.R.Civ.P. 31(a) (3), who are then permitted to 

submit written cross and recross questions, 

id.

 R. 31(a)(5).”  Hardy v. Vieta, 
No. 02-CV-40255, 

2009 WL 2365555

, at *2 (E.D. Mich. July 29, 2009).       
Judge Murphy found that a deposition violated Rule 31(a), reasoning in part 
that the defendant had no “opportunity to lawfully cross-examine [the     

witness] on the questions propounded by Hardy.”  

Id.

                      
    Hardy was ordered to respond to the motion to strike by September    
16, 2025, ECF No. 143, but he filed no response.  And during a September  

10, 2025 status conference, Hardy acknowledged that he did not submit     
defense counsel’s cross-examination questions, though he denied that he   
had received a copy of them.  But the Genessee County’s motion to strike  

includes a copy of its cross-examination questions along with a proof of  
service stating that the questions were served on Hardy by U.S. mail and  
email.  And because Hardy submitted no affidavit or other proof showing   

that he did not receive the questions, the Court finds that he violated Rule 
31(a) and it quashes the deposition notice and any deposition answers.    
                              B.                                         
    The Genessee County defendants moved for a judgment on the           

pleadings under Federal Rule of Civil Procedure 12(c).  ECF No. 142.  On  
top of responding to the motion, Hardy moved for leave to file a third    
amended complaint.  ECF No. 144; ECF No. 156.  These motions raise        

issues that the parties must be prepared to discuss at the hearing.       
    A motion under Rule 12(c) is governed by the same standards          
applicable to a motion to dismiss under Rule 12(b)(6).  Lindsay v. Yates, 

498 F.3d 434

, 437 n.5 (6th Cir. 2007).  A motion to dismiss under Rule    

12(b)(6) tests a complaint’s legal sufficiency.  “To survive a motion to  
dismiss, a complaint must contain sufficient factual matter, accepted as  
true, to ‘state a claim to relief that is plausible on its face.’”  Ashcroft v. 

Iqbal, 

556 U.S. 662, 678

 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570

 (2007)).  The Iqbal Court explained, “[a] claim has facial  
plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the        
misconduct alleged.”  

Id.

  The complaint’s allegations “must do more than 
create speculation or suspicion of a legally cognizable cause of action; they 

must show entitlement to relief.”  League of United Latin Am. Citizens v. 
Bredesen, 

500 F.3d 523, 527

 (6th Cir. 2007).                              
    In deciding whether a plaintiff has set forth a “plausible” claim, the 
Court must construe the complaint in the light most favorable to the plaintiff 

and accept as true all well-pleaded factual allegations.  Iqbal, 

556 U.S. at 678

.  But “[t]hreadbare recitals of the elements of a cause of action,    
supported by mere conclusory statements, do not suffice,” 

id.,

 and the    

Court has no duty to create a claim not spelled out in the pleadings,     
Freightliner of Knoxville, Inc. v. DaimlerChrysler Vans, LLC, 

484 F.3d 865

, 
871 n.4 (6th Cir. 2007).  Pleadings filed by pro se litigants are entitled to a 
more liberal reading than would be afforded to formal pleadings drafted by 

lawyers, but such complaints still must plead a plausible claim for relief.  
Davis v. Prison Health Servs., 

679 F.3d 433, 437-38

 (6th Cir. 2012);      
Thomas v. Eby, 

481 F.3d 434, 437

 (6th Cir. 2007).                         
    As the Genessee County defendants note in their motion under Rule    
12(c), the Sixth Circuit “has consistently held that damage claims against 

government officials arising from alleged violations of constitutional rights 
must allege, with particularity, facts that demonstrate what each defendant 
did to violate the asserted constitutional right.”  Cahoo v. SAS Analytics 

Inc., 

912 F.3d 887, 899

 (6th Cir. 2019) (cleaned up).  In Hardy’s second  
amended complaint (SAC), he accuses “5 or 6 others [deputies], mainly     
Deputy Whitaker, Lt. Wallenman and Sgt. Lipset” of creating “a hostile    
environment through limited control of its subordinates through their     

“action(s) and word(s) where [plaintiff] sought to comply.”  ECF No. 92,  
PageID.746 (brackets in original).  Hardy then describes several actions  
allegedly committed against him without attributing any action to particular 

defendants.  

Id.,

 PageID.746-747.  So Hardy did not allege what each      
defendant did to violate his constitutional rights.                       
    Hardy’s proposed third amended complaint (TAC) better details the    
allegations against the Genessee County defendants, but it raises         

questions about whether the claims against those defendants are properly  
joined with the claims against Defendant DeShawn Perry and proposed       
Defendant Dakota Justice, who are officers of the Flint Police Department.  

The proposed claims against Perry and Justice involve their alleged       
conduct and false arrest of Hardy after he made an emergency call to the  
police about a neighbor with a gun.  ECF No. 92, PageID.1454-1459.  After 

his arrest, Hardy was transferred to jail, where the Genessee County      
defendants allegedly used excessively tight restraints on him, causing him 
physical injuries.  

Id.,

 PageID.1459-1463.                                

    Defendants may be joined in one action if “(A) any right to relief is 
asserted against them jointly, severally, or in the alternative with respect to 
or arising out of the same transaction, occurrence, or series of transactions 
or occurrences; and (B) any question of law or fact common to all         

defendants will arise in the action.”  Fed. R. Civ. P. 20(a)(2).  “[I]f the proof 
of one claim would have no connection with the proof of the other, the    
claims do not arise out of the same transaction or occurrence.”  Harris v. 

Erdos, No. 1:21-CV-104, 

2022 WL 3053496

, at *5 (S.D. Ohio Aug. 3, 2022)   
(quoting LASA Per L'Industria Del Marmo Societa Per Azioni of Lasa, It. v. 
Alexander, 

414 F.2d 143

, 151 (6th Cir. 1969)).  In Price v. City of Elyria, the 
court found misjoinder of defendants because, “the claims against the     

Elyria Defendants concern conduct occurring before and during the search, 
whereas the claims against the Lorain County Defendants concern conduct   
occurring after the search. Furthermore, there are no counts in the Second 

Amended Complaint that are brought against all Defendants collectively.”  
No. 1:24-CV-1707-PAB, 

2025 WL 2733667

, at *6 (N.D. Ohio Sept. 25,         
2025) (emphasis in original).                                             

    Here, Hardy’s proposed false arrest claims against Perry and Justice 
concern conduct before and during his arrest in Hardy’s neighborhood,     
while the claims against the Genessee County defendants involve conduct   

that occurred after his arrest when he was in jail.  Hardy tries to tie all the 
defendants together in a conspiracy count under 

18 U.S.C. §§ 241

, 242.    
ECF No. 144, PageID.1465-1468.  But those are criminal statutes that      
provide no private right of action.  See United States v. Oguaju, 

76 F. App’x 579, 581

 (6th Cir.2003) (“[T]he district court properly dismissed Oguaju’s 
claim pursuant to 

18 U.S.C. §§ 241

 or 242 because Oguaju has no private   
right of action under either of these criminal statutes.”).               

    The Court has the authority to sua sponte sever or dismiss misjoined 
parties from an action.  See Fed. R. Civ. P. 21; Proctor v. Applegate, 

661 F. Supp. 2d 743, 781

 (E.D. Mich. 2009).                                      
    At the hearing, the parties must be prepared to address:             

    1. Whether Hardy misjoined the defendants in his SAC and TAC;        
    2. If so, whether the remedy should be to sever or dismiss the       
      claims against the Genessee County defendants;                     

    3. Whether the TAC states a plausible claim against Justice; and     
    4. Why Hardy waited until almost October 2025 to move for            
      leave to amend his complaint to add a new defendant.               

                              C.                                         
    Hardy filed a motion for a protective order, a motion for leave to file a 
protective order, and a duplicative motion for protective order.  ECF No. 

155; ECF No. 157; ECF No. 158.  The Court first notes that the parties no 
longer need to move for leave to file discovery motions.  ECF No. 151,    
PageID.1502.                                                              
    Hardy requests that defense counsel be prohibited from inquiring into, 

disclosing, or using his prior sex-related conviction in discovery or trial. 
ECF No. 155, PageID.1579.  He filed the motion after defense counsel      
asked a doctor questions about his conviction during a deposition.  See 

id.,

 

PageID.1584-1591.                                                         
    Federal Rule of Civil Procedure  26(c)(1) allows a party from whom   
discovery is sought to move for a protective order to protect it from     
“annoyance, embarrassment, oppression, or undue burden.”  The movant      

bears the burden of showing good cause for a protective order.  Nix v.    
Sword, 

11 F. App’x 498, 500

 (6th Cir. 2001).  “To show good cause, a      
movant for a protective order must articulate specific facts showing ‘clearly 

defined and serious injury’ resulting from the discovery sought and cannot 
rely on mere conclusory statements.”  

Id.

 (cleaned up).  Courts enjoy     
“broad discretion to decide when a protective order is appropriate and what 

degree of protection is required.”  Seattle Times Co. v. Rhinehart, 

467 U.S. 20, 36

 (1984) (cleaned up).  In exercising that discretion, a court must  
balance the competing interests and hardships of the parties.  Am. Gen.   

Life Ins. Co. v. Harshman, 

299 F.R.D. 157, 158

 (E.D. Ky. 2014).           
    The parties disagree about whether his conviction is admissible under 
Federal Rule of Evidence 609.  But information “need not be admissible in 
evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).  The question of  

whether Hardy’s conviction is admissible at trial must be addressed in a  
motion in limine, not a protective order.  See Wolpert v. Branch Banking Tr. 
& Co., No. 3:19-CV-138-TRM-DCP, 

2023 WL 2824900

, at *1 (E.D. Tenn.        

Mar. 1, 2023) (a protective order governs the flow of discovery); Harwood 
v. N. Am. Bancard LLC, No. 18-CV-12567, 

2022 WL 2467722

, at *3 (E.D.      
Mich. July 6, 2022) (a motion in limine addresses the admissibility of    
evidence at trial).                                                       

    So the question now is whether defense counsel should be forbidden   
from inquiring into Hardy’s conviction or discussing it with witnesses during 
discovery.  Hardy’s conviction for first-degree criminal sexual conduct   

under 

Mich. Comp. Laws § 750

.520b(1)(a) is a matter of public record.     
Hardy v. Smith, No. 1:07-CV-1169, 

2008 WL 1780997

, at *2 (W.D. Mich.      
Apr. 16, 2008) (denying Hardy’s petition for writ of habeas corpus under 

28 U.S.C. § 2254

).                                                           
    At the hearing, Hardy must be prepared to address whether            
there is good cause to prohibit defense counsel from inquiring about      

or disclosing his publicly known conviction during discovery.             
                              D.                                         
    Hardy moves to compel the Genessee County defendants to produce      
video surveillance footage from his time in jail in a reasonably usable   

format.  ECF No. 154.  He claims that he followed the instructions defense 
counsel provided for him to view the video but that the video is overlaid with 
codes, making it unintelligible.  Counsel for Genessee County argues that 

the motion is procedurally improper because the Court denied Hardy’s      
other discovery motions.  ECF No. 159.  The Court rejects that argument,  
as the usability of the video has not yet been addressed.  And defense    
counsel has presented no evidence that the video produced for Hardy is    

usable.  If not, the video must be translated into “a reasonably usable   
form.”  Fed. R. Civ. P. 34(a)(1)(A) (allowing a party to request production of 
documents or electronically stored information in any medium but, “if     
necessary, after translation by the responding party into a reasonably    
usable form.”                                                             

    By the hearing, counsel for the Genessee County defendants           
must either produce a new copy of the video surveillance without          
codes that obscure the images or have an IT specialist present at the     

hearing to address Hardy’s complaints about the quality of the video.     
                              E.                                         
     The Court ends this order with a warning to Hardy.                  
    At least twice, Hardy improperly suggested that he had a right to    

object to deposition questions.  During his own deposition, he refused to 
testify about why he was convicted and about the identity of his tenant.  
ECF No. 141, PageID.1400.  Hardy supplied the answers to the questions    

only after the Genessee County’s moved for sanctions.  ECF No. 149.  And  
after a doctor’s deposition, Hardy emailed the doctor alleging that counsel’s 
questioning violates court rules.  ECF No. 155, PageID.1591.              
    A deponent may refuse to answer a question only to preserve a        

privilege or to enforce a protective order; relevance is not a proper     
objection.  Hayse v. City of Melvindale, No. CV 17-13294, 

2018 WL 3655138

, at *4 (E.D. Mich. Aug. 2, 2018), objections overruled, 

2018 WL 4961528

 (E.D. Mich. Oct. 15, 2018); see also Fed. R. Civ. P. 30(c)(2) (“A 
person may instruct a deponent not to answer only when necessary to       
preserve a privilege, to enforce a limitation ordered by the court, or to 

present a motion under Rule 30(d)(3)”).  Under limited circumstances, a   
deponent or party may seek a protective order, or move to terminate or limit 
a deposition.  Rule 26(c); Rule 30(d)(3).                                 

    Hardy is warned that more violations of discovery rules may          
prompt sanctions, up to involuntary dismissal of his complaint.           
                              F.                                         
    In summary:                                                          

    The Genessee County defendants’ motion to quash (ECF No. 140) is     
GRANTED.                                                                  
    The Court will hold a hearing on October 15, 2025 at 3:00 p.m.,      

    during which both parties must address:                              
      1. Whether Hardy’s SAC and TAC are misjoined in this action;       
      2. If not, whether the remedy should be to sever the claim or      
         dismiss the claims against the Genessee County defendants;      

      3. Whether the TAC states a plausible claim against Justice;       
      4. Why Hardy waited until almost October 2025 to move for leave    
         to amend his complaint to add a new defendant; and              
      5. Whether there is good cause for the Court to prohibit defense   
         counsel from inquiring into Hardy’s publicly known conviction.  

    By the hearing, counsel for the Genessee County defendants must      
either produce a new copy of the video surveillance without codes that    
obscure the images or have an IT specialist present at the hearing to     

address Hardy’s complaints about the quality of the video.                
    Hardy is warned that more violations of discovery rules may prompt   
sanctions, up to involuntary dismissal of his complaint.                  
                                  s/Elizabeth A. Stafford                
                                  ELIZABETH A. STAFFORD                  
                                  United States Magistrate Judge         

Dated: October 6, 2025                                                    
           NOTICE TO PARTIES ABOUT OBJECTIONS                            

    Within 14 days of being served with this order, any party may file   
objections with the assigned district judge.  Fed. R. Civ. P. 72(a).  The 
district judge may sustain an objection only if the order is clearly erroneous 
or contrary to law.  

28 U.S.C. § 636

.  “When an objection is filed to a   
magistrate judge’s ruling on a non-dispositive motion, the ruling         

remains in full force and effect unless and until it is stayed by the     
magistrate judge or a district judge.”  E.D. Mich. LR 72.2.               
                   CERTIFICATE OF SERVICE                                

    The undersigned certifies that this document was served on counsel   
of record and any unrepresented parties via the Court’s ECF System to     
their email or First Class U.S. mail addresses disclosed on the Notice of 
Electronic Filing on October 6, 2025.                                     

                                  s/Davon Allen                          
                                  DAVON ALLEN                            
                                  Case Manager