United States District Court, E.D. North Carolina, Western Division
JAMES C. FOX, Senior District Judge.
This matter is before the court on several motions: Defendant Heather St. John's Motion for Partial Summary Judgment [DE-208]; Plaintiffs' Motions to Seal [DE-217; DE-268; DE-282]; Plaintiff Darwin Johnson's Fourth Motion to Compel [DE-223]; Plaintiffs' Motion for Partial Summary Judgment [DE-238]; Motion for Summary Judgment [DE-240] filed by Defendants Chief Thomas Bergamine, the City of Fayetteville, Kevin Croyle, Dale Iman, Phyllis Jernigan, Shane Koehler, and Jennifer Rodriguez (collectively, the "City Defendants"); the City Defendants' Motions to Seal [DE-250; DE-260; DE-271; DE-293]; Plaintiffs' Motions to Amend/Correct [DE-270; DE-308]; and the Joint Motion to Amend the Scheduling Order and Continue the Trial [DE-314]. Additionally, pending before this court are the Memorandum and Recommendations ("M&R") [DE-275] recommending that Plaintiffs' Fourth Motion to Compel be denied, and Plaintiffs' Objection [DE-295] to the M&R. Also pending before the court is the Plaintiffs' Appeal [DE-296] of Judge Jones's October 6, 2014, Order [DE-276] allowing certain motions to seal [DE-224; DE-230] filed by the parties.
I. RELEVANT PROCEDURAL HISTORY
On June 7, 2012, Plaintiffs Darwin Johnson, Latonja Johnson, and Brenda Johnson Mathis initiated this action by filing a Complaint in the General Court of Justice, Superior Court Division, Cumberland County, State of North Carolina. The action was removed to this court on July 20, 2012. On September 5, 2012, Plaintiffs filed the Amended Complaint [DE-30], containing several causes of action arising under 42 U.S.C. § 1983 and § 1985, the North Carolina Constitution and state tort law, and naming the following as defendants: (1) City of Fayetteville; (2) Heather Nicole St. John; (3) Shane Koheler, individually; (4) Jennifer Rodriguez, individually; (5) Phyllis Jernigan, individually; (6) Chief Thomas Bergamine, in his official capacity as Chief of FCPD and individually, and (7) Dale Iman, in his official capacity as City Manager and individually.
In a March 28, 2013, Order [DE-129], the undersigned ruled on pending motions to dismiss, resulting in the following claims remaining in this action:
1. Defendant St. John: Plaintiff Darwin Johnson § 1985 claim for civil conspiracy. Plaintiff Mathis' § 1985 claim for civil conspiracy. Plaintiff Latonja Johnson's claim for negligence.
2. Defendant Koehler in his Individual Capacity: Plaintiff Darwin Johnson's (1) § 1983 claims for false arrest (unreasonable seizure), excessive force, and malicious prosecution; (2) § 1985 claim for civil conspiracy; and (3) state law claims of IIED, assault and battery, and false imprisonment. Plaintiff Mathis' (1) § 1983 claim of excessive force; (2) § 1985 claim for civil conspiracy; and (3) state law claim for assault and battery.
3. Defendant Rodriguez in her Individual Capacity: Plaintiff Darwin Johnson's § 1985 claim for civil conspiracy. Plaintiff Mathis' § 1985 claim for civil conspiracy.
4. Defendant City of Fayetteville: Plaintiffs Darwin Johnson and Mathis' state law claim of negligent hiring, retention, supervision, training, and discipline.
5. Defendant City of Fayetteville, and Defendants Bergamine and Iman in their Individual Capacity: Plaintiffs Darwin Johnson and Mathis' municipal and supervisor derivative § 1983 and § 1985 claims based on these remaining predicate claims asserted against Defendant Koehler due to their negligent hiring of and failure to train Defendant Koehler, as well as Plaintiffs Darwin Johnson and Mathis' municipal and supervisor derivative § 1983 and § 1985 claims based on these remaining predicate claims asserted against Defendants Koehler and Rodriguez due to the institution and maintenance of a widespread discriminatory policy. March 28, 2013 Order [DE-129] at 37.
Thereafter, Judge Jones issued an order [DE-144] on two motions to compel [DE-84; DE-112] filed by Plaintiff Darwin Johnson. One of the motions to compel had sought the discovery of psychological evaluations of Defendant Koehler, who had been diagnosed with post-traumatic stress disorder ("PTSD"). Plaintiffs sought to discover what extent Koehler's supervisors knew of his mental condition. Judge Jones ruled (1) that the requested documents were relevant to the Plaintiffs' surviving claim of negligent hiring/retention/supervision and in particular, to the issue of notice to Koehler's employer; and (2) that documents corresponding to a time period after April 17, 2011, the date of the incident alleged in the complaint, were beyond the scope of reasonably calculated discovery. Plaintiffs appealed this and other rulings. The undersigned sustained Judge Jones' ruling as to the psychological records, stating: "Plaintiffs do not need any psychological evaluations of Defendant Koehler prepared after April 17, 2011 in order to gather evidence regarding his supervisors' actions in light of [their] knowledge." August 5, 2013, Order [DE-155] at 14.
On December 5, 2013, Plaintiffs filed a Motion for Leave to File Second Amended Complaint, and later filed a corrected Motion for Leave to File Second Amended Complaint [DE-165] on December 9, 2013. Plaintiffs sought leave, under Federal Rule of Civil Procedure 15(a)(2), to make the following substantive changes to their pleadings:
(1) The proposed amendment to the Second Complaint seeks to add Lt. Kevin Croyle of the Fayetteville City Police Department as a party Defendant.
(2) In addition, the proposed amendment to the Complaint seeks to add  new Monell allegations that Proposed Defendants City of Fayetteville, Sgt. Phyllis Jernigan and Lt. Kevin Croyle concealed/fabricated evidence during the internal investigation of the arrest of Plaintiff Darwin Johnson.
(3) The proposed Second Amended Complaint also seeks to join the Defendants Sgt. Phyllis Jernigan and Lt. Kevin Croyle in the following claims:
(a) conspiracy, (Sec. Am. Comp. ¶¶ 145-169), and
(b) Fourth Amendment Illegal Seizure  (Malicious Prosecution) (Sec. Am. Comp. ¶¶ 137-144)
Mem. in Support of Mot. for Leave [DE-165-2] at 2-3. The City Defendants opposed the motion, arguing, inter alia, that Plaintiffs were seeking to assert claims already dismissed by the court. Specifically, the City Defendants noted that Plaintiffs were attempting to assert a § 1983 false arrest claim against Defendants Rodriguez, Jernigan, and Croyle that already had been dismissed as to all defendants with the exception of Defendant Koehler.
In an order filed on April 1, 2014 [DE-191], the court allowed Plaintiffs' motion in part and denied it in part. The court explicitly stated that Plaintiffs' attempts to assert a § 1983 false arrest claim against Defendants Rodriguez, Jernigan, and Croyle were futile. The court ordered Plaintiffs to file a second amended complaint which complied with the rulings set forth in the order within seven days. Order [DE-191] at 6. Plaintiffs filed a Second Amended Complaint on April 6, 2014 [DE-192]. One day later, Plaintiffs filed a Corrected Second Amended Complaint [DE-195].
On April 14, 2014, the City Defendants filed the Partial Motion to Dismiss [DE-199] along with their Answer [DE-201] to the Corrected Second Amended Complaint. The City Defendants argued, inter alia, that Plaintiffs alleged many claims that already have been dismissed by the court, as well as claims explicitly not allowed by the court's earlier orders. The court allowed the City Defendants' motion in part, and ordered that several claims be dismissed. See June 19, 2014 Order [DE-215].
While the motion to amend and the motion to dismiss was pending, Plaintiff Darwin Johnson filed a Third Motion to Compel [DE-170] and an Amended Third Motion to Compel [DE-174], arguing, inter alia, that psychological evaluations of Defendant Koehler performed after April 17, 2011, were relevant. Specifically, Plaintiff sought a report by Dr. William Presley Keeton, III, whom Plaintiffs learned performed a fitness for duty examination ("FFDE") of Defendant Koehler in August 2011. Judge Jones construed the Third Motion to Compel as a motion to reconsider the undersigned's August 6, 2013, Order, and he held a telephonic hearing on the motion. Thereafter, Judge Jones issued an Order and M&R, recommending the undersigned reconsider the August 6, 2013, Order [DE-155], and direct Defendants to produce within 14 days Dr. Keeton's FFDE report. Additionally, Judge Jones recommended that the court reopen the deposition of Dr. Keeton for examination regarding the report. See June 25, 2014, Order and M&R [DE-216] at 9. Judge Jones found that "[b]ased on the newly amended complaint, Defendant Koehler's PTSD condition has relevance beyond its notice [to] Defendants" and "Plaintiffs now allege Defendants concealed it from the internal investigation of the April 17, 2011 incident." Id. at 8. Accordingly, Judge Jones found that "whether Dr. Keeton included this information in his FFDE report to Defendant City is arguably relevant to Plaintiff's new claims that Defendants omitted Koehler's PTSD from the internal investigation surrounding the April 17, 2011 incident." Id. Judge Jones noted, however that "Plaintiffs' motions otherwise fail to particularize further discovery sought and, in light of the high standard of review applied to the court's reconsideration of previous orders, it is otherwise recommended that any further reconsideration be denied." Id. at 9.
Neither party filed any objection to the June 25, 2014, M&R. On July 29, 2014, the undersigned adopted [DE-222] the M&R, and ordered Defendants to produce Dr. Keeton's FFDE of Defendant Koehler. July 29, 2014 Order. The undersigned also ordered that the deposition of Dr. Keeton be reopened for examination regarding the FFDE report; however, Plaintiffs' motions to compel were denied in all other respects. Id.
Shortly thereafter Plaintiffs filed a Fourth Motion to Compel [DE-223]. In that motion, Plaintiffs state Defendants produced Dr. Keeton's FFDE report as required. According to Plaintiffs:
This report indicated that Dr. Keeton administered the Personality Assessment Inventory (PAI), the Achenbach Adult Self-Report (ASR) and the PTSD Checklist, Military version (PCL-M). In addition, this letter from Keeton states that Defendant Koehler "provided copies of his medical records from his recent treatment for PTSD and ADHD at Carolina Psychiatry in Fayetteville." Furthermore, it was noted in the letter from Dr. Keeton that the examination of Defendant [Koehler] was conducted on August 24, 26, and 30, 2011.
Mem. in Support of Fourth Mot. to Compel [DE-223-1] at 4. Plaintiffs contend they were "not aware of the tests that were administered by Dr. Keeton, that medical records were reviewed and that the examination was conducted for three hours over a six day period." Id. Plaintiffs seek an order "compelling Defendants to produce all documentation/data relied upon by Dr. Keeton (including his notes) in making his Fitness for Duty Determination of Defendant Koehler" and specifically "the medical records and data from any assessments Dr. Keeton relied upon during the Fitness for Duty Examination." Id. at 8.
In connection with the briefing of the Fourth Motion to Compel, the parties filed motions to seal [DE-224; DE-230]. During this time period, the parties also filed the various dispositive motions, which also were accompanied by numerous motions to seal and motions to amend or correct previously-filed documents.
On October 6, 2014, Judge Jones issued an M&R [DE-275] construing the Fourth Motion to Compel as a motion to reconsider the court's July 29, 2014, Order, and recommending that it be denied. That same day, Judge Jones issued a separate Order [DE-276] allowing the parties' motions to seal certain documents filed in connection with the Fourth Motion to Compel. Plaintiffs thereafter filed their Objections [DE-295] to the M&R and an Appeal [DE-296] of Order allowing the motions to seal.
While the court was considering the parties' various motions, the parties filed the joint motion to continue the trial date in this matter.
II. FOURTH MOTION TO COMPEL
As the court has recounted, Plaintiffs filed the Fourth Motion to Compel [DE-223] seeking "an order compelling Defendants to produce all documentation/data relied upon by Dr. Keeton (including his notes) in making his Fitness for Duty Determination of Defendant Koehler." Judge Jones recommended that this motion be denied, and Plaintiffs have objected to this recommendation.
Specifically, Judge Jones construed the Fourth Motion to Compel as a motion to reconsider the undersigned's July 29, 2014, Order, which ordered Defendants to produce, within 14 days, Dr. Keeton's fitness for duty examination of Defendant Kohler, and also ordered that the deposition of Dr. Keeton be reopened for examination regarding this report. The July 29, 2014 Order denied the subject motions to compel in all other respects.
In the M&R, Judge Jones observed that Plaintiffs had
recharacterize[d] the relevance of Dr. Keeton's FFDE report as threefold: (1) whether Dr. Keeton was aware of Koehler's PTSD, (2) whether Dr. Keeton was negligent in clearing Koehler to return to duty and (3) whether Defendants were indifferent to right of citizens to ensure that Koheler's PTSD condition did not interfere with his police duties. Plaintiff argues that these questions are relevant as to what extent Defendants either concealed the existence of Defendant Koehler's PTSD condition or were negligent in addressing whether he was in fact fit to serve in law enforcement.
M&R [DE-275] at 9. Judge Jones noted that the first question-whether Dr. Keeton was aware of Koehler's PTSD-had been answered by the FFDE report. Judge Jones also determined that Plaintiff had long been aware of Dr. Keeton's assessment of Koehler, and the fact that he only recently arrived at the theory that Dr. Keeton's assessment was incompetent was not a compelling reason to revisit this court's earlier order. Finally, Judge Jones reasoned:
[f]undamentally, however, questions concerning Dr. Keeton's alleged negligence are not relevant to the claims Plaintiff has asserted in this action.... Dr. Keeton is neither a party nor an employee of Defendant City, and there... has been no claim alleged based on his conduct during the FFDE of Koehler. Moreover, Plaintiff provides no basis for his suggestion that the documents sought after April 17, 2011, would have any bearing on Defendant City's alleged indifference to the rights of its citizens by failing to insure that Koehler's PTSD condition did not interfere with his duties as a police officer or how it would relate to Plaintiff's claims.
Id. at 10.
A. Standard of Review
A district court may "designate a magistrate judge to submit... proposed findings of fact and recommendations for the disposition of a variety of motions." 28 U.S.C. § 636(b)(1)(B). The court then must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C). Upon review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
Plaintiffs argue that the M&R is incorrect in three ways: (1) it is error to construe the Fourth Motion to Compel as a motion to reconsider; (2) it is error to conclude that the Fourth Motion to Compel is not related to new issues that warrant reconsideration of the court's order; and (3) it is error to conclude that the evidence sought is not relevant. Even if the court assumes, without deciding, that Plaintiffs are correct with respect to their first two arguments, the court ...