Finch v. City of Indianapolis, CASE NO: 1:08-cv-0432-DML-RLY

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
PartiesJOSEPH W. FINCH, et al., Plaintiffs, v. CITY OF INDIANAPOLIS, et al., Defendants.
Docket NumberCASE NO: 1:08-cv-0432-DML-RLY
Decision Date23 June 2011
Order on Plaintiffs' Motion to Compel Discovery (Dkt. 114)

This matter came before the court on the plaintiffs' motion to compel each of the individual defendants (1) to answer an interrogatory as to his or her net worth and identify any documents relied on to answer the interrogatory, and (2) to produce the identified net worth documents and produce his or her state and federal income tax returns, with attachments, from 2005 to the present. (Dkt. 114). The plaintiffs contend that this discovery is relevant to their punitive damages claims against the individual defendants and that there is no basis for restricting or delaying that discovery. The central objection by the individual defendants (and the basis of their request for a protective order) is that the discovery is premature—at least until the court determines whether the plaintiffs can survive summary judgment on liability based on a qualified immunity defense. The individual defendants also contend that delaying the discovery is appropriate because the discovery seeks sensitive, private information.

The individual defendants have asked the court for leave to file a sur-reply brief (Dkt. 128), and the plaintiffs object. Their sur-reply responds to the argument made by the plaintiffs in their reply brief that the issue of qualified immunity decided by the court on the defendants' motion for judgment on the pleadings is "law of the case." The court finds that theproposed sur-reply properly is confined to addressing a legal argument raised for the first time in the plaintiffs' reply brief. The court therefore GRANTS the individual defendants' motion (Dkt. 128) for leave to file their sur-reply brief. And for the reasons explained below, the court DENIES the plaintiffs' motion to compel (Dkt. 114).


The plaintiffsJoseph W. Finch, David E. Hensley, and Peter W. Mungovan—are Caucasian Indianapolis police officers who allege that they were passed over for promotion from Lieutenant to Captain in December 2006 in favor of the promotion of African-American lieutenants who were less qualified and ranked behind the plaintiffs on the eligibility list used for the December 2006 promotions. According to the complaint, in December 2006, the City of Indianapolis promoted 11 police lieutenants to the rank of captain. The first seven promotions were of the lieutenants ranked one through seven on the eligibility list. (Dkt. 1, ¶ 20). The plaintiffs occupied the next three spots, with Mr. Hensley ranked eighth, Mr. Finch ninth, and Mr. Mungovan tenth, but they were not promoted. Instead, three African-American lieutenants ranked 12th, 17th, and 26th, respectively, were given promotions. (Id.).

The plaintiffs have sued their employer—the City of Indianapolis—for race discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983. And (relevant to the discovery dispute at issue here) the plaintiffs have sued the

individual defendants under 42 U.S.C. § 1983 alleging that, acting in their individual capacities and under color of law, they violated the plaintiffs' federal constitutional and statutory rights to equal protection under the law and to be free from racial discrimination in the terms and conditions of their employment. The individual defendants are:

Barton R. Peterson, who is alleged to have used his position as Mayor of the City of Indianapolis and as a member of the Transition Authority (a City agency that wasestablished to oversee the consolidation of the Indianapolis Police Department and the Marion County Sheriff's Department into the Indianapolis Metropolitan Police Department ("IMPD") to deprive the plaintiffs of their federal rights;
Monroe Gray Jr., alleged to have used his position as a member of the Transition Authority to deprive the plaintiffs of their federal rights;
Frank J. Anderson, alleged to have used his position as a member of the Transition Authority and as the Marion County Sheriff to deprive the plaintiffs of their federal rights;
Michael T. Spears, alleged to have used his position as the Chief of the IMPD to deprive the plaintiffs of their federal rights; and
Cordelia L. Burks, Mary Maxwell, and Joseph L. Smith., Jr., alleged to have used their positions as members of the police Merit Board to deprive the plaintiffs of their federal rights and who, as members of the Merit Board, voted to approve the December 2006 promotions.

For most of its history, this litigation has focused on whether all defendants were entitled to judgment on the pleadings, in part—as to the individual defendants—based on qualified immunity. The defendants' qualified immunity argument was grounded in the terms of a 1978 Consent Decree, a document that was considered by the court without reference to any other matters outside the pleadings. (Dkt. 76 at p. 3). The court denied the motion for judgment on the pleadings (Dkt. 76) and its decision was affirmed on appeal. See Finch v. Peterson, 622 F.3d 725 (7th Cir. 2010). Discovery was stayed pending the court's ruling on the motion for judgment on the pleadings (Dkt. 74) and pending the appeal (Dkt. 96). Merits discovery began in earnest after the Seventh Circuit's decision. The deadline for filing dispositive motions is August 1, 2011. (Dkt. 106).

Discovery Requests at Issue

The issue before the court is whether each of the individual defendants must provide the following information and documents to the plaintiffs:

Interrogatory: Provide your net worth and provide and identify each document relied on to answer this interrogatory. 1
Document Request: All documents identified or relied on in your answers to [the interrogatories served on you].
Document Request: Your complete state and federal income tax returns, with attachments from 2005 to the present.
A. "Law of the case" principles do not negate the defendants' objections to providing the requested discovery.

The court will address as a preliminary matter an argument the plaintiffs have made in their reply brief. In response to the defendants' contention that they should not be subject to discovery of their individual financial information so long as they have qualified immunity defenses, the plaintiffs maintain that it is the "law of the case" that the defendants are not entitled to qualified immunity. That doctrine has no application to this discovery dispute.

In seeking judgment on the pleadings, the defendants argued that the Consent Decree required them to consider race in decisions on promotions to the rank of captain, that they therefore could not have reasonably known that their promotions decisions were unconstitutional, and that they are thus entitled to qualified immunity. The court ruled that the language of the Consent Decree itself did not require race-based decision making in the promotions process and that the pleadings therefore did not compel the conclusion that the individual defendants met the standard for qualified immunity. (Dkt. 76 at p. 13). The court expressly left to another day whether the defendants may be entitled to qualified immunity based on a complete factual record (in contrast to the limited matters the court could consider underrule 12). (Id. at p. 11, 12). In particular, the court has not had occasion to consider any other evidence the defendants say they will offer on qualified immunity issues. (See id. at p. 8).

Contrary to the plaintiffs' argument on the current discovery issue, the court's order denying the defendants' motion for judgment on the pleadings and the Seventh Circuit's affirmance of that order is not the "law of the case" because it is not a final disposition of all qualified immunity issues. The ruling that the Consent Decree did not by its terms require the defendants to remedy past discrimination by affirmative promotion of African-American lieutenants to the captain rank over Caucasian lieutenants does not prevent the individual defendants from seeking summary judgment on the issue of qualified immunity based on evidence not considered at the pleadings stage.

B. The requested information is relevant.

There is no question, and the defendants do not dispute, that a claim for punitive damages (which is made against each individual defendant) makes a defendant's personal wealth relevant. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 269-70 (1981) (punitive damages in a section 1983 case against a state official, "based on his personal financial resources," may in appropriate case serve a deterrent aim of section 1983).

And there is no question that punitive damages are an available form of relief under certain circumstances (but not against a municipality) for a successful section 1983 claim. See City of Newport, 453 U.S. 247 (1981) (municipality may not be held liable for punitive damages under section 1983); Smith v. Wade, 461 U.S. 30, 56 (1983) ("a jury may be permitted to assess punitive damages [against individual defendants] in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others"); Alexander v. City of Milwaukee, 474 F.3d 437, 453-54 (7th Cir. 2007) (evidence at trial, viewed most favorably to the plaintiffs,allowed jury to find that the individual defendants had been recklessly or callously indifferent to the plaintiffs' federally protected rights, but remand was required because jury had not been clearly instructed to take account of each defendant's actions and their wrongfulness in deciding a punitive award proportional to the reprehensibility of the defendant's actions); Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285, 291 (7th Cir. 1985) ("The words used to mark off the domain...

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