Mueller v. Walker

124 F.R.D. 654, 1989 U.S. Dist. LEXIS 1279, 1989 WL 15905
CourtDistrict Court, D. Oregon
DecidedJanuary 31, 1989
DocketCiv. No. 88-661-FR
StatusPublished
Cited by7 cases

This text of 124 F.R.D. 654 (Mueller v. Walker) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mueller v. Walker, 124 F.R.D. 654, 1989 U.S. Dist. LEXIS 1279, 1989 WL 15905 (D. Or. 1989).

Opinion

FRYE, District Judge:

The matter before the court is the motion of plaintiff, Keith A. Mueller, to compel discovery (#40) from defendants, Richard Walker, Chief of Police for the City of Portland, and Portland Police Officers Mark Stevens, Thomas Trevarthon, Ed May, Stephen J. Smith, Rod Lucich, and Steven Larsen. The documents at issue are: 1) internal investigation files of the Internal Investigations Division of the Portland Police Bureau, 2) personnel files maintained by the City of Portland or the Portland Police Bureau for defendants, and 3) psychological evaluations of defendants maintained by the Portland Police Bureau.

FACTS

Mueller brings this action pursuant to 42 U.S.C. § 1983. He alleges that Walker, Stevens, Trevarthon, May, Smith, Lucich and Larsen, acting under color of state law, violated his constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution. Mueller alleges that on or about June 20, 1986, at approximately 1:00 a.m., Officer Stevens stopped Mueller in his car for failure to use a turn signal; Stevens then learned of a bench warrant for Mueller’s arrest; Stevens attempted to take Mueller to the police station; Mueller refused, contending that he needed to obtain food and medicine for his sick child; Stevens grabbed the steering wheel of the moving car and hit Mueller several times in the face with a flashlight; Stevens radioed the Portland Police Department, and May, Trevarthon, Smith, Lucich and Larsen arrived at the scene; these officers followed Mueller’s car until he reached a stop, where they then proceeded to exercise excessive force to arrest him; one of the officers struck him in the chest, dislocating his collarbone; all of the officers repeatedly struck him with nightsticks and flashlights. Mueller further alleges that the Internal Investigation Division of the Portland Police Bureau investigated the incident and determined that the police officers had used excessive force in making the arrest.

Mueller has not named the City of Portland as a party. Mueller is, however, suing Richard Walker in his official capacity as Chief of Police of the City of Portland, contending that Walker’s acts represent the official policy of the City of Portland. Walker argues that Mueller’s claim against him is not viable because he was not Chief of Police at the time of the incident.

Defendants object to Mueller’s requests for documents to the extent that they seek documents from the internal investigation files and personnel files of the Portland Police Bureau on the basis of governmental, work product, and attorney-client privileges. Defendants’ response to Mueller’s motion to compel indicates that the parties have conferred and no issue remains as to the work product or the attorney-client privileges. Mueller has not contradicted this assertion. The only remaining issue is whether the requested documents violate a governmental privilege.

APPLICABLE STANDARD

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action____ It is not ground for objection that the information sought will be inadmissible at the trial if the informa[656]*656tion sought appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The burden is on the party objecting to discovery to show that discovery should not be allowed. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2214, at 644 (1970).

CONTENTIONS OF THE PARTIES

Mueller contends that the internal investigation files and the personnel records are not protected by governmental privilege because disclosure will not harm the public interest. Mueller further argues that disclosure of the internal investigation files will not chill citizen contributions of information. He contends that there are no citizen reports involved in the present action. Mueller also suggests that this court could avoid any chilling effect by ordering him not to reveal the contents of the files to the public. Mueller argues that the internal investigation files are relevant to his case because such files allegedly conclude that the defendant officers acted improperly. Finally, Mueller argues that the internal investigation files should be disclosed because they contain information which is not discoverable through any other source.

Mueller asserts that the personnel files may contain records of prior incidents of the use of excessive force by the defendant officers, and that these files are therefore relevant to support his allegations of improper supervision and training.

Defendants respond that the personnel records and the internal investigation files are protected by governmental privilege. Defendants also assert that the only internal investigation file relating to Mueller’s arrest pertains to a complaint filed against defendant Stevens. Defendants argue that disclosure of the personnel records and the internal investigation file sought by Mueller would undermine the confidentiality of the information disclosed. Defendants argue that the psychological evaluations are protected by governmental privilege and O.R.S. 192.500. Defendants further argue that Mueller will have the opportunity to discovery the information contained in the requested documents at trial. Defendants concede, however, that it is appropriate for the court to make an in camera inspection of the requested documents to determine whether they are protected by governmental privilege.

DISCUSSION

Mueller’s document request contains twelve separate requests. The court will address those requests not resolved by the parties.

A. Request No. 2

Request No. 2 seeks “[a]ll documents which relate, in narrative form by law enforcement officers, or witnesses, what occurred during the incident, all chronologies prepared by said law enforcement officers.”

Defendants contend that Mueller’s request for documents regarding the internal investigation of the incident should be denied on the grounds of governmental privilege. Both parties rely on Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973).

Frankenhauser is a civil rights case in which plaintiffs sued to recover damages for the death of their husband and father, Paul Frankenhauser, who was shot and killed by police in a dyeworks in the Kensington section of Philadelphia. The Frankenhausers moved to compel discovery of witnesses’ statements to police and the reports of the police investigations made in the aftermath of the incident. The court allowed discovery of materials from the police investigation, stating that when executive, or governmental, privilege is asserted, “the court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data, not otherwise available to him.” 59 F.R.D. at 344. The Frankenhauser court set forth a ten-point list of factors to be considered in this balancing test “[i]n the context of discovery of police investigation files in a civil rights case.” Id. These factors are:

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Cite This Page — Counsel Stack

Bluebook (online)
124 F.R.D. 654, 1989 U.S. Dist. LEXIS 1279, 1989 WL 15905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mueller-v-walker-ord-1989.