Bell v. King County

• Court: District Court, W.D. Washington
• Decided: January 24, 2023
• Docket: 2:22-cv-00387
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 WARREN E BELL, Case No. 2:22-cv-00387-JCC-TLF 7 Plaintiff, v. ORDER 8 KING COUNTY et al.,, 9 Defendants. 10 11 This matter comes before the Court on the following motions submitted by 12 plaintiff : 13 (1) Motion to Strike Defendants’ Response in Opposition to Plaintiff’s Motion for 14 Summary Judgment (Dkt. 33); 15 (2) Second Motion to Strike Defendants’ Response in Opposition to Plaintiff’s Motion 16 for Summary Judgment (Dkt. 37); 17 (3) Motion to Strike Defendants’ Motion for Summary Judgment (Dkt. 50); 18 (4) Plaintiff’s First Motion to Compel (Dkt. 23); and 19 (5) Plaintiff’s Second Motion to Compel (Dkt. 52). 20 For the reasons discussed below, plaintiff’s motions are DENIED. 21 DISCUSSION 22 Plaintiff initiated this action on August 16, 2021 in King County Superior Court. 23 Dkt. 1. The action was removed to the District Court on March 29, 2022. Dkt. 1. Plaintiff 24 1 asserts numerous claims under 42 U.S.C. § 1983 and state law, alleging violations of 2 his Fourth, Eighth, and Fourteenth amendment rights, Monell liability, false arrest and 3 imprisonment, and intentional infliction of emotional distress. Dkt. 2-1. 4 Pursuant to the Court’s pretrial scheduling order, the parties were instructed to

5 note all motions related to discovery for no later than November 18, 2022. Dkt. 18. The 6 discovery period closed on December 2, 2022, and the parties were instructed to file 7 and serve dispositive motions no later than January 5, 2023. Id. Plaintiff moved for 8 summary judgment on October 13, 2022. Dkt. 19. Defendants responded to plaintiff’s 9 motion on October 28, 2022. Dkt. 26. Plaintiff has moved twice to strike defendants’ 10 response. Dkts. 33, 37. Defendants moved for summary judgment on November 4, 11 2022 (Dkt. 39), which plaintiff has also moved to strike. Dkt. 50. Both motions for 12 summary judgment are pending before the Court. 13 A. Plaintiff’s Motions to Strike Defendants’ Response to Motion for Summary Judgment 14 Plaintiff argues that defendants’ response should be stricken because the 15 response was untimely filed and because the response exceeds the page limit without 16 leave to file overlength brief. Dkt. 33. Plaintiff also argues that the Court should strike 17 the response because plaintiff contends that the King County Sherriff Department has 18 conducted subsequent blood test on the sample extracted from plaintiff after his arrest. 19 Dkt. 37. Plaintiff states that he does not have access to the warrants for these 20 subsequent blood tests. Dkt. 37. 21 Pursuant to Local Civil Rule 7(d)(3), for motions to summary judgment, “[a]ny 22 opposition papers shall be filed and served no later than the Monday before the noting 23 date. If service is by mail, the opposition paper shall be mailed not later than the Friday 24 1 preceding the noting date.” The noting date for plaintiff’s motion for summary judgment 2 is November 4, 2022. Dkt. 19. Accordingly, defendants’ response needed to be filed on 3 or before October 31, 2022 and mailed on or before October 28, 2022. Defendant filed 4 and mailed their opposition on October 28, 2022. Dkt. 26. Defendants’ response was

5 timely filed and mailed. 6 Pursuant to Local Civil Rule 7(e)(3), oppositions to motions for summary 7 judgment must not exceed twenty-four pages – not including captions, tables of 8 contents, tables of authorities, signature blocks, and certification of service. LCR 9 7(e)(3); LCR 7(e)(6). Defendants’ response to plaintiff’s motion for summary judgment is 10 eighteen pages. The opposition does not exceed the page limit set forth in the local 11 rules. 12 Plaintiff’s complaint alleges that the defendants violated plaintiff’s rights by 13 arresting plaintiff, obtaining a warrant for a blood draw, drawing plaintiff’s blood on the 14 night of his arrest and refusing to reimburse plaintiff for impounding plaintiff’s vehicle.

15 Plaintiff’s complaint does not allege that the defendants conducted any subsequent 16 illegal searches, blood draws or blood tests after the initial blood draw. Plaintiff raises 17 this issue for the first time in opposing defendants’ motion for summary judgment. 18 These allegations of additional searches are not part of plaintiff’s complaint and 19 therefore not properly before the Court on plaintiff’s motion for summary judgment. 20 Based on the foregoing, plaintiff’s motions to strike defendants’ response in 21 opposition to plaintiff’s motion for summary judgment are DENIED. Dkt. 33, 37. 22 23

24 1 B. Plaintiff’s Motion to Strike Defendants’ Motion for Summary Judgment 2 Plaintiff filed this motion pursuant to Federal Rule of Civil Procedure 12(f). Dkt. 3 50. Plaintiff argues that plaintiff’s arrest was illegal and the King County Superior Court 4 never had proper jurisdiction over plaintiff’s criminal case. Dkt. 50 at 1-4. Accordingly,

5 plaintiff contends that the motion for summary judgment should be stricken for being 6 scandalous matter. Dkt. 50 at 4. 7 The function of Fed. R. Civ. P. 12(f) is to avoid wasting time and money litigating 8 spurious issues -- by dismissing those issues prior to trial. Whittlestone, Inc. v. Handi- 9 Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010). The language of Rule 12(f) limits its 10 applications to defenses in a pleading. Fed. R. Civ. P. 12(f). A pleading is defined as: 11 “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim 12 designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; 13 (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an 14 answer.” Fed. R. Civ. P. 7. If the motion is directed to one of these pleadings, then the

15 Court analyzes whether the issue sought to be stricken is: “(1) an insufficient defense; 16 (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous.” Whittlestone, Inc, 618 17 F.3d at 973-74. 18 Plaintiff moves to strike defendants’ motion for summary judgment. A motion for 19 summary judgment is not considered a pleading under Fed. R. Civ. P 7. Accordingly, 20 Fed. R. Civ. P. 12(f) is inapplicable, and plaintiff’s motion to strike is DENIED. Dkt. 50. 21 C. Plaintiff’s Motions to Compel 22 Pursuant to Fed. R. Civ. P. 37 a party may move for an order compelling a party 23 to appropriately respond to discovery when a party fails to produce documents or permit

24 1 inspection as required by Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv). Rule 34 allows a party 2 to serve on another party a request for production within the scope of Rule 26(b). Fed. 3 R. Civ. P. 34(a). Rule 26(b)(1) states: 4 Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter 5 that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the 6 action, the amount in controversy, the parties’ relative access to the relevant information, the parties’ resources, the importance of the 7 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this 8 scope of discovery need not be admissible in evidence to be discoverable.

9 Under Fed. R. Civ. P. 33, the purpose of interrogatories is to “limit and clarify the 10 issues for the parties in preparation for further trial proceedings.” Soria v. Oxnard Sch. 11 Dist. Bd of Trs., 488 F.2d 579, 587 (9th Cir. 1973). If the responding party objects, any 12 objection must be plain and specific, to allow the court to understand the specific 13 objectionable characteristic being asserted by the responding party. Davis v. Fendler, 14 650 F.2d 1154, 1160 (9th Cir. 1981). According to Fed. R. Civ. P. 34, requests for 15 production, including requests for electronically stored information (ESI) and tangible 16 things, must be responded to either by “stat[ing] that inspection and related activities will 17 be permitted as requested or stat[ing] with specificity the grounds for objecting to the 18 request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(C). If the producing party 19 objects to part of a request, the producing party is required to include in the objection, a 20 statement that specifies which part is being objected to, “and permit inspection of the 21 rest.” Id. 22 A party is only required to produce documents and records within their 23 “possession, custody or control.” United States v. International Union of Petroleum & 24 1 Industrial Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (citing Fed. R. Civ. P. 34(a)). 2 The party seeking production of the document bears the burden of proving that the 3 opposing party has possession of the document or evidence requested. Id. Additionally, 4 the moving party bears the burden of showing that the discovery responses were

5 incomplete. Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221, 227 (10th Cir. 1976). 6 A district court has broad discretion to grant or deny a motion to compel. See 7 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Under Fed. R. Civ. P. 26(b)(2)(C), 8 the Court is required to limit the frequency or extent of discovery if the discovery 9 requested is “unreasonably cumulative or duplicative, or can be obtained from some 10 other source that is more convenient, less burdensome, or less expensive,” or if the 11 requesting party “has had ample opportunity to obtain the information by discovery in 12 the action,” or if the requesting party is seeking information that is outside of the scope 13 of discovery under Rule 26(b)(1). 14 I. Plaintiff’s First Motion to Compel

15 Plaintiff’s first motion requests a Court order compelling the following documents 16 from defendants: (1) the Declaration in Support of Search Warrant for Evidence of a 17 Crime; (2) the name and badge number of the King County Sheriff’s Office (“KCSO”) 18 backup deputy on August 31, 2019 after 11:07:27 p.m. that conducted the inventory 19 search of Plaintiff’s vehicle; (3) the name and badge number of each officer or civilian 20 who was present during the blood draw at King County unincorporated precinct 4; (4) 21 surveillance video at unincorporated precinct 4; and (5) in-car video of the KCSO 22 backup deputy on August 31, 2019. 23

24 1 With respect to plaintiff’s first two requests, defendants state that they have 2 already provided responsive documents and have responded in full. See Dkt. 48 3 (Declaration of Erica Brunette) at ¶ 3. It is plaintiff’s burden to show that defendants’ 4 responses were incomplete, and he has failed to do so here. See Daiflon, Inc. v. Allied

5 Chemical Corp., 534 F.2d 221, 227 (10th Cir. 1976). Therefore, plaintiff’s motion to 6 compel (1) the Declaration in Support of Search Warrant for Evidence of a Crime and 7 (2) the name and badge number of the KCSO backup deputy on August 31, 2019 after 8 11:07:27 p.m. that conducted the inventory search of Plaintiff’s vehicle is DENIED. 9 Similarly, with respect to plaintiff’s request of the names and badge numbers of 10 each officer or civilian who was present during the blood draw at King County 11 unincorporated precinct 4, defendants have responded with the information that is within 12 their custody. Dkt. 47 at 3. They identified Dep. Stephens, Phlebotomist Erin Hilliard, 13 and a security guard. Id. Defendants further informed plaintiff that any additional 14 information would have to come from Highline Hospital, where plaintiff’s blood was

15 drawn; Highline Hospital is the custodian of their own records. Id. Plaintiff has not 16 shown that defendants’ response was incomplete or that they are withholding 17 responsive information. Thus, plaintiff’s motion to compel the names and badge 18 numbers of each officer or civilian who was present during the blood draw at King 19 County unincorporated precinct 4 is DENIED. 20 Finally, plaintiff requests surveillance video from unincorporated Precinct 4 and in 21 car video for the backup KCSO deputies. Defendants have informed plaintiff that while 22 unincorporated Precinct 4 did have video surveillance for their hallways in 2019, that 23 surveillance had a retention period of 20-25 days before it was overwritten. Thus, that

24 1 video surveillance is no longer available. Further, defendants informed plaintiff that in 2 2019, KCSO deputies did not have in-car video capabilities. Defendants are only 3 required to produce records within their “possession, custody or control,” and it is 4 plaintiff’s burden of proving that defendants have possession of the information

5 requested. United States v. International Union of Petroleum & Industrial Workers, 870 6 F.2d 1450, 1452 (9th Cir. 1989) (citing Fed. R. Civ. P. 34(a)). Plaintiff has not met this 7 burden here. Plaintiff does not identify any basis for a belief that any of the requested 8 video surveillance evidence exists and is being withheld. Therefore, plaintiff’s motion to 9 compel the surveillance video at unincorporated precinct 4 and in-car video of the 10 KCSO backup deputy on August 31, 2019 is DENIED. 11 II. Plaintiff’s Second Motion to Compel 12 Plaintiff filed his second motion to compel on November 28, 2022. Dkt. 52. 13 Plaintiff’s motion is untimely as the Court, on August 26, 2022, informed the parties that 14 discovery motions should be noted for no later than November 18, 2022, so that the

15 responding party could answer by the discovery cut-off -- December 2, 2022. Dkt. 18. 16 Plaintiff’s motion was noted for December 16, 2022. Plaintiff has not shown good cause 17 for extending the discovery period. Nor did plaintiff make a timely request to the Court to 18 extend the deadline to file discovery-related motions. Thus, plaintiff’s motion to compel 19 is DENIED as untimely1. 20

21 1 Plaintiff appears to be requesting an order compelling defendants to produce the following documents: (1) the search warrant signed by Judge Nathanial Green Jr., on September 1, 2019; (2) the declaration in 22 support of this search warrant; and (3) the return of the search warrant. Dkt. 52. While the Court denies plaintiff’s motion as untimely, it appears that defendants have already provided plaintiff with the requested 23 documents, and plaintiff attached such documents to his own summary judgment motion. Dkt. 52-1 at 2; Dkt. 19-1 at Exhibits 1-3. 24 1 ORDER 2 For the reasons discussed above, the Court ORDERS as follows: 3 Plaintiff’s Motion to Strike Defendant’s Response in Opposition to Plaintiff’s 4 Motion for Summary Judgment (Dkt. 33); Second Motion to Strike Defendant’s

5 Response in Opposition to Plaintiff’s Motion for Summary Judgment (Dkt. 37); Motion to 6 Strike Defendant’s Motion for Summary Judgment (Dkt. 50); Plaintiff’s First Motion to 7 Compel (Dkt. 23); and Plaintiff’s Second Motion to Compel (Dkt. 52) are DENIED. 8 9 Dated this 24th day of January, 2023. 10 11 A 12 Theresa L. Fricke 13 United States Magistrate Judge

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