Fink-Carver v. Kuhn

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JENNIFER FINK-CARVER and JASON Case No. 21-cv-00664-JSW (LJC) FINK, 8 Plaintiffs, ORDER REGARDING DISCOVERY 9 DISPUTE v. 10 Re: Dkt. No. 36 CITY OF PLEASANT HILL POLICE 11 OFFICER KUHN, CITY OF PLEASANT HILL, and DOES 1 through 20, 12 Defendants. 13 14 The parties filed a joint discovery letter, and on April 3, 2023, the dispute was referred to 15 the undersigned for resolution. Jnt. Disc. Ltr., ECF No. 36. Pursuant to Civil Local Rule 7-1(b), 16 the Court determines that this dispute is suitable for resolution without oral argument. Having 17 read the papers filed by the parties and carefully considered their arguments and the relevant legal 18 authority, the Court DENIES and GRANTS IN PART Plaintiffs’ request to compel Defendants to 19 respond to their Requests for Production (RFPs) Nos. 25-30, 37-39, 52, 65, and DENIES 20 Plaintiffs’ request to compel as to RFP Nos. 34-36 and 56-58, and GRANTS Plaintiffs’ requests to 21 compel as to RFP Nos. 24 and 46. 22 I. BACKGROUND 23 Plaintiff Jennifer Fink-Carver (Fink-Carver) and Plaintiff Jason Fink (Fink) (collectively, 24 Plaintiffs) allege that Defendant City of Pleasant Hill and Defendant City of Pleasant Hill Police 25 Department (PHPD) Officer Kuhn violated their constitutional rights. Specifically, Plaintiffs 26 allege that Officer Kuhn and other officers were called to Fink-Carver’s house, and, without cause 27 or justification, entered her home. Compl. ¶¶ 3–4, EFC No. 1. Upon entry, Plaintiffs allege that 1 officers slammed Fink-Carver to the couch and Officer Kuhn deployed a police canine that bit her 2 leg. Id. ¶ 4. Plaintiffs allege Fink arrived outside the house and, without cause or justification, 3 officers took Fink to the ground, officers remained on top of him, and Officer Kuhn deployed a 4 police canine that bit Fink’s low back, hip, and leg. Id. ¶ 6. 5 Plaintiffs assert twelve claims, individually asserting causes of action against 6 (1) Defendant Officer Kuhn under the Fourth Amendment and 42 U.S.C. § 1983 for unreasonable 7 force, unlawful seizure, and unlawful arrest, (2) the City of Pleasant Hill and Does 1 through 20 8 for supervisory liability under Monell, 42 U.S.C. § 1983, (3) all Defendants for negligence, (4) all 9 Defendants for assault, (5) all Defendants for battery, and (6) all Defendants for violating the Bane 10 Act. Id. ¶¶ 33–106. Plaintiffs seek damages, including punitive damages. Id. at 16. 11 II. PROCEDURAL HISTORY 12 On September 16, 2022, Defendants moved to bifurcate the discovery and trial of the 13 individual liability claims from the Monell and supervisory liability claims. Defs.’ Mot. to 14 Bifurcate Trial and Disc., ECF No. 25. On October 14, 2022, the Court granted Defendants’ 15 motion. Order Grant. Mot. to Bifurcate Trial and Disc., ECF No. 29. The Court found, among 16 other things, bifurcation would result in efficiencies because the Monell claims cannot survive if a 17 jury finds Officer Kuhn did not deprive either Plaintiffs of their constitutional rights. Id. at 3. 18 “This is because ‘neither Monell . . . nor any other of [the Supreme Court’s] cases authorize the 19 award of damages against a municipal corporation based on the actions of one of its officers when 20 in fact the jury has concluded that the officer inflicted no constitutional harm.’” Id. (citing City of 21 Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Accordingly, the Court granted Defendants’ 22 motion and bifurcated the trial of the individual liability claims from the Monell claims against 23 Pleasant Hill. In the same order, the Court stayed discovery on issued pertaining exclusively to 24 the Monell claims until discovery and adjudication is complete as to the individual claims. 25 III. DISCUSSION 26 In their joint discovery letter, the parties dispute whether Defendants must respond to 27 nineteen of Plaintiffs’ RFPs, both citing, in part, the Court’s bifurcation and stay order. Under the 1 matter that is relevant to any party's claim or defense and proportional to the needs of the case.” 2 Fed. R. Civ. P. 26(b)(1). 3 Based on the Court’s bifurcation and stay order, Plaintiffs are permitted to seek discovery 4 related to Defendant Kuhn’s alleged unreasonable force, unlawful seizure, and unlawful arrest of 5 Plaintiffs, Defendant Kuhn’s alleged negligence with respect to Plaintiffs, Defendant Kuhn’s 6 alleged assault and battery of Plaintiffs, and Defendant Kuhn’s alleged violation of the Bane Act. 7 The Court addresses RFP Nos. 24-30, 34-39, 46, 52, 56, 57, 58, and 65 below. 8 A. Certain Discovery Requests Largely Violate the Bifurcation and Discovery Stay Order, Lack Relevance, and Are Disproportionate, and Defendants’ 9 Responses for Other Discovery Requests Do Not Appear Deficient 10 1. RFP Nos. 25-30, 37-39, 52 11 The following RFPs solely pertain to a municipal liability under Monell for the violations 12 alleged in the Complaint, and thus are contrary to the bifurcation and discovery stay order: RFP 13 Nos. 25-30, 34, 38, 39, and 52. 14 Starting with RFP No. 25, Plaintiffs request: 15 Each and every ‘Use of Force’ report, ‘Deployment,’ ‘Canine,’ ‘Bite,’ ‘Contact’ report, or other WRITING of similar name relating to the 16 use of a police dog by any PHPD dog handler, dating from five years before the incident to the date of compliance with this request. This 17 includes, but is not limited to, reports that document instances where the dog was used to assist in a person’s apprehension but where the 18 dog did not bite anybody. 19 RFP No. 25, ECF No. 40-1. RFP No. 26 makes a nearly identical request for reports or similar 20 writings “concerning each person bitten by a PHPD police dog” from the same period. RFP 21 No. 30 make a similar request for “any evaluation, review, criticism, or report” of the use of a 22 police dog by PHPD where an injury resulted. Such reports, writings, evaluations, and the like, 23 that do not address a specific instance in which Officer Kuhn used a police dog have no bearing on 24 the individual claims against him. Instead, these requests concern PHPD’s potential municipal 25 liability based on its policies and practices, and these document requests have been stayed by the 26 Court. Accordingly, Plaintiffs’ request to compel Defendants to respond to RFP Nos. 25, 26, and 27 30, are DENIED AND GRANTED IN PART to the extent any responsive record relates to Officer 1 Similarly, RFP No. 27 seeks “[a]ll department statistical reports on the use of police dogs 2 by PHPD police officers, including but not limited to the dog handler(s) involved in the 3 INCIDENT” for the same period indicated in RFP Nos. 25, 26, and 30. For the same reasons 4 explained above, such statistical reports are barred by the discovery stay order. Plaintiffs’ request 5 to compel Defendants to response to RFP No. 27 is DENIED AND GRANTED IN PART as to 6 the portions of any statistical report that provides data points specific to Officer Kuhn’s conduct. 7 RFP No. 52 seeks “[a]ny and all databases containing electronic data collected or derived 8 from PHPD canine reports, including deployment, contact or similar reports of any other name.” 9 This request is impermissible at this time due to the discovery stay order. Plaintiffs’ request to 10 compel Defendants to respond to RFP No. 52 is DENIED AND GRANTED IN PART in that 11 Defendants shall produce any database information about Defendant Kuhn and the incident 12 alleged in the Complaint. 13 Plaintiffs make several media discovery requests from Defendants. RFP No. 28 seeks any 14 and all video recordings depicting a PHPD police dog biting a person. RFP No. 29 broadly seeks 15 video recordings depicting a police dog, from any law enforcement agency, biting a person. RFP 16 No. 38 seeks “[a]ny and all video and/or audio recordings depicting or reflecting the use of a 17 PHPD police dog to assist in the apprehension of a person suspected of crime(s).” RFP No. 39 18 broadly seeks video and audio recordings of the use of a PHPD police dog for any purpose, with 19 no limitations. And RFP No. 37 seeks all photographs and other depictions of injuries sustained 20 as a result of a PHPD police dog biting a person. 21 These media requests are overbroad and violate the discovery stay order to the extent that 22 they request recordings, photographs or depictions that do not depict or directly relate to Officer 23 Kuhn’s conduct or handling of a police dog, or injuries related to the incident at issue in this case. 24 Nor are these requests tailored to photographs, video, or audio recordings that were contained in 25 any training that Officer Kuhn underwent regarding the police dog handling, related risks and 26 injuries, and applicable laws and policies. Plaintiffs’ request to compel Defendants’ response to 27 RFP Nos. 28, 29, and 37-39 are DENIED AND GRANTED IN PART to the extent that 1 handling of a police dog, injuries related to the incident at issue in this case, and such photographs, 2 video, or audio recordings that were included in any training or orientation that Officer Kuhn 3 received. 4 2. RFP Nos. 34–36 5 Requests Nos. 34, 35 and 36, seek PHPD reports on arrests and detentions of any person 6 under various provisions of the California Penal Code from five years before the incident that gave 7 rise to this case until the date of compliance with the discovery requests. The Penal Code 8 provisions are the same, or similar, to the provisions that were purportedly the basis for Plaintiffs’ 9 arrests. 10 These three requests seek information concerning the conduct of individuals other than 11 Officer Kuhn and Plaintiffs, and thus, appear to conflict with the Court’s discovery stay. 12 Plaintiffs, however, attempt to tie these RFPs to the specific incident that is the basis for their 13 complaint. Plaintiffs assert that the requested records are relevant to show a “cover up” of Officer 14 Kuhn’s allegedly malicious use of force against them. But reports regarding the arrest and 15 detention of individuals other than Plaintiffs and arising from incidents other than that challenged 16 in this lawsuit are not relevant to Plaintiffs’ claims against Officer Kuhn. The reports are not 17 likely to provide evidence that Plaintiffs’ arrests were pretextual because the reports do not 18 involve the incident at hand, and the reports are not reasonably calculated to reveal coverup 19 activity. RFP Nos. 34, 35, and 36 sweep far beyond Officer Kuhn’s own conduct, and thus, are 20 unduly burdensome, and disproportionate to the needs of this case. Plaintiffs’ request to compel 21 Defendants to respond to RFP Nos. 34-36 are DENIED. 22 3. RFP Nos. 56–58 23 Through RFP Nos. 56, 57, and 58, Plaintiffs seek police dog training records and writings 24 showing the identities and qualifications of the persons who trained the dog handlers involved in 25 the incident. In the parties’ joint discovery letter, Plaintiffs urge that Defendants must produce 26 non-confidential records that are responsive to these requests. Jnt. Disc. Ltr. at 2. Defendants 27 have responded that they have complied with this request by producing over sixty pages of 1 identifying the name of the PHPD canine trainer and informing Plaintiffs of the availability of the 2 trainer’s curriculum vitae online. Jnt. Disc. Ltr. at 5. Plaintiffs have not explained the deficiency 3 in Defendants’ response. The parties do not appear to dispute the relevance of such information or 4 that it is proportionate to the needs of the case. Plaintiffs’ request to compel a further response is 5 DENIED because in the parties’ joint discovery letter, there is no explanation of Defendants’ 6 purported failure to produce responsive records. 7 B. Permissible Discovery Requests 8 Requests for Production Nos. 24 and 46 are not barred by the Court’s bifurcation and stay 9 of discovery. RFP No. 24 seeks: 10 Each and every ‘Use of Force’ report, ‘Deployment,’ ‘Canine,’ ‘Bite,’ ‘Contact’ report, or other WRITING of similar name relating to the 11 use of a police dog by the dog handler(s) involved in the INCIDENT, dating from five years before the incident to the date of compliance 12 with this request. This includes, but is not limited to, reports that document instances where the dog was used to assist in a person’s 13 apprehension but where the dog did not bite anybody. 14 And RFP No. 46 seeks: 15 All WRITINGS of DEFENDANTS or any of their departments, agents, or employees, including but not limited to its LAW 16 ENFORCEMENT AGENCY reflecting or referring to any use of force by the dog handler(s) involved in the INCIDENT, against any 17 person from five years before the date of the INCIDENT until the date of compliance with this request to produce. 18 These two RFPs seek information specific to Officer Kuhn and are designed to collect 19 information that may support Plaintiffs’ claims for punitive damages. Jnt. Disc. Ltr. at 1. “It is 20 well-established that a jury may award punitive damages under section 1983 either when a 21 defendant's conduct was driven by evil motive or intent, or when it involved a reckless or callous 22 indifference to the constitutional rights of others.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 23 2005) (internal quotation marks and alteration omitted). 24 Defendants assert that they have no records to supply for RFP No. 24 because the bites 25 directed by Officer Kuhn were the first bites of his career as a canine handler, and he had no prior 26 deployments with canine “Bodie” resulting in bite apprehension. Jnt. Disc. Ltr. at 3. But RFP 27 No. 24 is broader than Defendants’ interpretation. The RFP seeks deployment, contact and canine 1 reports that involve Officer Kuhn’s use of a police dog, regardless of whether a bite was involved, 2 whether Bodie was the dog that Officer Kuhn used, or whether the deployment of Bodie led to an 3 apprehension. Furthermore, RFP No. 24 is not overly broad and does not conflict with the 4 bifurcation and discovery stay order because it is only concerned with Officer Kuhn, not all PHPD 5 dog handlers. Plaintiffs’ request to compel Defendants to further respond to RFP Nos. 24 is 6 GRANTED. 7 RFP No. 46 seeks Defendants’ records that reflect or refer to Officer Kuhn’s prior use of 8 force. This is request is within the scope of discovery permitted by the bifurcation order because it 9 is focused on Officer Kuhn, who is the subject of Plaintiffs’ individual claims that have not been 10 stayed. In police dog bite cases, “the availability of alternative methods of capturing or subduing a 11 suspect may be a factor to consider” in evaluating a claim for excessive force. Smith v. City of 12 Hemet, 394 F.3d 689, 701 (9th Cir. 2005). Under the rules of discovery, Plaintiffs are entitled to 13 discovery of any relevant nonprivileged matter that is proportional to the needs of this case where 14 Plaintiffs have alleged that Officer Kuhn’s use of force was excessive. Records of Officer Kuhn’s 15 prior use of force would illustrate his awareness and ability to use other forms of force that may 16 have been alternatives available to him at the time of the incident. 17 Accordingly, Plaintiffs’ request to compel Defendants to further respond to RFP Nos. 46 is 18 GRANTED. 19 Through RFP No. 65, Plaintiffs request: 20 Any and all reports or WRITINGS or studies conducted by or authorized by or commissioned by or relied on by any DEFENDANT 21 regarding the risk of injury, including the risk of serious injury, when a police dog is deployed to assist in the detection and/or apprehension 22 of person suspected of crime. 23 Defendants, however, object, asserting that the request is barred by the bifurcation and 24 discovery stay order. Defendants also contend that the request is overbroad and disproportionate 25 to the needs of the case. The request seeks records that may bear on Plaintiffs’ Monell claim, but 26 the request also relates directly to Officer Kuhn. The request seeks any and all writings regarding 27 the risk of injury due to police dogs that any Defendant, including Officer Kuhn, relied upon. 1 training and other avenues, prior to the incident involving Plaintiffs. Within these bounds, the 2 || information sought by RFP No. 65 is relevant to the individual claims against Officer Kuhn, 3 including the demand for punitive damages, and the request does not violate the discovery stay. 4 || Plaintiffs’ request to compel Defendants to respond to RFP No. 65 is GRANTED IN PART to the 5 extent that Defendants shall produce responsive records that relate directly to Officer Kuhn, such 6 as those that were included in any training or other materials he received. 7 || IV. CONCLUSION 8 In summary, the Court orders the following: 9 Plaintiffs’ request to compel Defendants’ response to RFP Nos. 25-30, 37-39, 52, 65 is 10 || DENIED AND GRANTED IN PART. 11 Plaintiffs’ request to compel Defendants’ response to RFP Nos. 34-36 and 56-58 is 12 || DENIED. 5 13 Plaintiffs’ requests to compel Defendants’ response to RFP Nos. 24 and 46 is GRANTED 14 Defendants shall produce further discovery in accordance with this order within one week 3 15 from the date of this order. a 16 || ITISSO ORDERED. 2 17 |) Dated: May 4, 2023 18 19 J.C ROS 20 Umted States Magistrate Judge 21 22 23 24 25 26 27 28