Riis v. Twenty

• Decision Date: 09 November 2017
• Docket Number: 3:17-CV-03017-RAL
• Parties: JASON RIIS, CODY HOLCOMBE, AARON HENNING, GENA ALVAREZ, and DIRK SPARKS, Plaintiffs, v. JOHN DOES ONE THROUGH TWENTY, MATTHEW SHAVER, IN HIS PERSONAL CAPACITY; THE CITY OF PIERRE, and THE CITY OF SISSETON, Defendants.
• Court: U.S. District Court — District of South Dakota

JASON RIIS, CODY HOLCOMBE, AARON HENNING,GENA ALVAREZ, and DIRK SPARKS, Plaintiffs, v. JOHN DOES ONE THROUGH TWENTY,MATTHEW SHAVER, IN HIS PERSONAL CAPACITY;THE CITY OF PIERRE, and THE CITY OF SISSETON, Defendants.

3:17-CV-03017-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

November 9, 2017

OPINION AND ORDER GRANTING IN PART MOTIONS FOR PROTECTIVE ORDERS

I. Summary of Facts Relevant to Motions

Plaintiffs Jason Riis, Cody Holcombe, Aaron Henning, Gena Alvarez and Dirk Sparks (collectively "Plaintiffs") sued John Does One Through Twenty identified as unnamed police officers of the cities of Pierre and Sisseton, Pierre police officer Matthew Shaver, the City of Pierre and the City of Sisseton (collectively "Defendants"). Plaintiffs invoke federal question jurisdiction and allege claims under 42 U.S.C. §§ 1983 and 1985 and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Doc. 1 at ¶¶ 86-105. Plaintiffs recently have been granted leave to amend their complaint to add the South Dakota Highway Patrol as a defendant. Docs. 27, 28. Each of the Plaintiffs allegedly underwent forced catheterization to obtain urine samples at the behest of law enforcement. When the forced catheterizations occurred, Plaintiffs Riis, Holcombe and Sparks were in the custody of Pierre police; Plaintiff Henning was in the custody of Sisseton police; and Plaintiff Alvarez was in the custody of the South Dakota Highway Patrol. Doc. 1 at ¶¶ 41-84. According to the Complaint, law enforcement had obtained search warrants to obtain a urine sample from four of the five Plaintiffs¹, but no court order specifically allowing or consent to catheterization of any of the Plaintiffs. Doc. 1. Plaintiffs seek monetary and injunctive relief.

Part of the Complaint, and in turn the newly filed Amended Complaint, alleges a civil conspiracy, Doc. 1 at ¶¶ 31-40, and 42 U.S.C. § 1985 is explicitly cited in the Complaint, Doc. 1 at ¶ 88. Plaintiffs allege that law enforcement in various cities and counties in South Dakota have conspired through written and oral communications to justify and spread the practice of forced catheterization to obtain urine samples, and Plaintiffs specifically allege the City of Winner and Tripp County, the City of Lake Andes and Charles Mix County, and the cities of Mobridge, Wagner and Platte to be conspirators with the Defendants. Doc. 1 at ¶¶ 31-34. The Complaint quotes what two attorneys are reported to have told the Sioux Falls Argus Leader about forced catheterization practices in south central South Dakota. Doc. 1 at ¶¶ 35-38. One of those attorneys—Lake Andes attorney Timothy Whalen—reportedly said that police have the Wagner and Platte hospitals conduct forced catheterizations to collect urine samples "on a regular basis" without anesthesia causing "a lot of screaming and hollering." Doc. 1 at ¶ 35; Doc. 26-2.

On October 16, 2017, Plaintiffs issued subpoenas duces tecum to the Administrator of the Platte Hospital and the Administrator of the Wagner Community Memorial Hospital for the following:

1. All medical records for every catheterization, or obtaining a urine sample, conducted between June 29, 2014, and the present, at the request of a law enforcement agency or officer.

Before producing these documents, you are required to delete all personally identifying information, and all information that HIPAA requires you to delete, so as not to disclose the identity of the person.

2. All communication (electronic and otherwise) between June 29, 2014, and the present, with law enforcement agencies or officers concerning catheterization, or obtaining a urine sample.

3. All written policies and instructional materials on obtaining a urine sample, that were in effect at any time between June 29, 2014, and the present.

4. All written policies and instructional materials on catheterization, or obtaining a urine sample at the request of law enforcement agencies or officers, that were in effect at any time between June 29, 2014, and the present.

5. All training or instructional materials regarding catheterization, or obtaining a urine sample at the request of law enforcement agencies or officers, and under what circumstances catheterization, or obtaining a urine sample, should be considered, attempted, or done at the request of law enforcement agencies or officers.

On October 16, 2017, Plaintiffs also issued subpoenas duces tecum to the Police Chief of Lake Andes; the Police Chief of the City of Mobridge; the Police Chief of the City of Platte; the Police Chief of the City of Wagner; the Police Chief of the City of Winner; the Sheriff of Charles Mix County; the Sheriff of Hughes County; the Sheriff of Roberts County; the Sheriff of Tripp County (collectively "other law enforcement agencies"); the South Dakota Highway Patrol; and attorney Whalen for the following documents:

1. The affidavit for search warrant, search warrant, and return for every catheterization, or obtaining a urine sample, conducted between June 29, 2014, and the present.

2. All police reports for every detention, arrest, or incarceration that included a catheterization, or obtaining a urine sample, between June 29, 2014, and the present.

3. All videotapes of every catheterization, or obtaining a urine sample, between June 29, 2014, and the present.

4. All communication (electronic or otherwise) between June 29, 2014, and the present, with law enforcement agencies or officers concerning catheterization, or obtaining a urine sample.

5. All written policies or instructional materials on catheterization, or obtaining a urine sample, that were in effect at any time between June 29, 2014, and the present.

6. All training or instructional materials regarding catheterization, or obtaining a urine sample, and under what circumstances catheterization, or obtaining a urine sample, should be considered, attempted, or done.

On October 24, 2017, Defendants Shaver and the City of Pierre filed a Motion for Protective Order, Doc. 15, in which Defendant City of Sisseton joined, Doc. 22. Attorney Whalen filed a Motion to Quash or Modify Subpoena or for Protective Order. Doc. 19. Plaintiffs opposed these motions. Docs. 24, 25. On November 7, 2017, this Court held a hearing on those motions.

II. Discussion

Rule 26(b)(1) sets the scope of discovery as follows: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense" subject to certain proportionality limitations. Fed. R. Civ. P. 26(b)(1). Defendants argue that the proposed discovery is not relevant to any claim or defense, while Plaintiffs argue that the materials sought in the subpoenas duces tecum relate to their conspiracy claim. Naturally, the scope of discovery under Rule 26(b) is extremely broad. Stock v. BNSF Ry. Co., No. 4:14-CV-04074-RAL, 2015 U.S. Dist. Lexis 124063 at *4 (D.S.D. September 17, 2015). The reason for the broad scope of discovery is that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." 8 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2007 (3d ed. 2017) (hereinafter "Wright & Miller") (quoting Hickman v. Taylor, 329 U.S. 495, 507-08 (1947)). However, limiting discovery to claims and defenses means that "[a] plaintiff may not use a lawsuit as a tool for 'a fishing expedition' to seek grounds for another lawsuit." Gates v. Black Hills Health Care Sys., No. CIV 11-3013-RAL, 2013 WL 1683654, at *1 (D.S.D. April 17, 2013) (quoting E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 675 (8th Cir. 2012)); see also Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (noting that the liberal scope of Rule 26 does not allow parties to engage in "fishing expeditions" and mandating "[s]ome threshold showing of relevance" for discovery requests).

Rule 26(c)(1) grants a district court authority, for good cause, to issue a protective order and provides a list of potential remedies to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). Either a "party or any person from whom discovery is sought may move for a protective order," so both Defendants and Whalen have the opportunity to seek such a protective order. Fed. R. Civ. P. 26(c)(1). Both Whalen and in response Plaintiffs seek expenses or sanctions against the other, which this court has discretion to award. Fed. R. Civ. P. 26(c)(3), 37(a)(5).

Ruling on the motions requires this Court to determine the proper scope of discovery here. The advisory committee's note to the 2000 amendments to Rule 26(b)(1) provides guidance for this task:

Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties' claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action²....The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings....When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.

See Fed. R. Civ. P. 26(b) advisory committee's note to 2000 amendment. The key inquiry for this Court is what, if any, information requested by Plaintiffs through the subpoenas duces tecum meets the reasonable needs of this...