Wayson v. Rundell
Order on Motion for Miscellaneous Relief
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARK N. WAYSON,
ORDER AND OPINION
[Re: Motion at Docket 74]
I. MOTION PRESENTED
At docket 74, plaintiff Mark Wayson moves for leave to submit three videotapes
in opposition to defendant’s motion for summary judgment. At docket 80, defendant
Linda Rundell opposes the motion. Plaintiff replies at docket 84. Oral argument was
not requested, and it would not assist the court.
On January 13, 2006, Mark Wayson filed an amended complaint in Superior
Court for the State of Alaska, Fourth Judicial District at Fairbanks, against Linda
Rundell. Wayson’s complaint alleges that Rundell, as the acting state director of the
Bureau of Land Management (“BLM”), damaged his reputation and violated his
constitutional rights by finding that he threatened Carol Hammond, a BLM employee,
and by obstructing the investigation of Wayson’s complaint of misconduct by Robert
Schneider, another BLM employee. Wayson’s complaint solely asserts a Bivens1 claim
against defendant Rundell in her individual capacity. Rundell removed this matter to
federal court pursuant to 28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 2679(d)(2).2 This
court has federal question jurisdiction under 38 U.S.C. § 1331.
II. APPLICABLE LEGAL STANDARD
Rule 402 of the Federal Rules of Evidence provides that “[a]ll relevant evidence
is admissible, except as otherwise provided by the Constitution of the United States, by
Act of Congress, by these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority.” Rule 401 defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”3 “To be ‘relevant,’ evidence need not be conclusive proof of a fact sought to
be proved, or even strong evidence of the same. All that is required is a ‘tendency’ to
establish the fact at issue.”4
Plaintiff Mark Wayson requests leave to submit three videotapes5 in support of
his opposition to defendant Linda Rundell’s motion for summary judgment. The first
videotape is of a meeting held on December 10, 1996, and attended by Mark Wayson,
“Shelly Jacobsen, who was the project manager for the BLM 98 Mile Steese [Highway]
Project, and Keith Woodworth, who had worked on this project beginning at least as
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
Section 1442(a)(1) provides for removal of cases in which an officer of the United
States is sued in his or her “individual capacity for any act under color of such office.”
Fed. R. Evid. 401.
U.S. v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007).
The videotapes have now been converted to DVD format, but will be referred to as
videotapes to avoid any confusion.
early as 1995.”6 Wayson argues that the videotape is relevant to disproving Rundell’s
assertion in her summary judgment motion that “[t]here are many sources which publicly
revealed that BLM employees felt that Wayson was threatening,” including a 1996 BLM
letter.7 Wayson avers that the videotaped meeting on December 10, 1996, “was held to
rectify any BLM misunderstandings regarding the letter, and seeing the tape would
convince the court that the Defendant in this case is still misrepresenting this protest
letter, which is now more than eleven years old, as evidence of threats against BLM
The second videotape was made on July 9, 1997, and shows “Ranger Lee and
Keith Woodworth of BLM, serving a summons upon miner Don Glassburn, for allegedly
blocking a road across his mining claims.”9 Wayson argues that this videotape is
submitted to show similar consequences and damages involved in Wayson’s potential
loss of road access to his mining claims, a topic which was part of the disagreement
which occurred between Carol Hammond and Wayson on September 15, 2001.
The third videotape shows part of the discussion between Wayson and Carol
Hammond on September 15, 2007, which resulted in Robert Schneider requesting a
ranger to stand by the site until the work was completed because Hammond allegedly
felt threatened by Wayson. Wayson argues that this videotape is relevant to disproving
the finding made by Rundell, especially in light of the fact that Carol Hammond is now
Rundell opposes submission of the videotapes on the grounds that they are
irrelevant. Defendant specifically argues that the “[videotapes] of events in 1996 and
1997 do not involve Ms. Rundell as she did not move to Alaska until December of 1999
and she never saw them” and the “[videotape] of September 2001 is related to the
subject matter of the Rundell memorandum of September 2002, but Ms. Rundell never
Doc. 75 at pp. 1-2
Doc. 69 at p. 15.
Doc. 75 at p. 2.
Doc. 75 at p. 3.
saw it.”10 Wayson responds that “[t]he fact that Ms. Rundell did not request or view
evidence she was aware existed, and which does not support her finding that [Wayson]
forcibly committed a crime against Carol Hammond is relevant to [Wayson] establishing
...that Rundell’s intent was to shut Wayson up and/or retaliate against him for speaking
out against BLM, rather than investigating her subordinate Schneider.”11
Having reviewed the videotapes, the court finds that they have some tendency to
make Wayson’s theory of the case more probable, which is all that is required by
Rule 401. Furthermore, Wayson indicates that Rundell will not be prejudiced by the
submission of these videotapes in opposition to Rundell’s motion for summary judgment
because Rundell has had copies of all three videotapes since 2004, when they were
produced in a related case, Wayson v. Schneider.12 Rundell does not argue, nor does
the court find, that the probative value of the DVDs is “substantially outweighed by the
danger of unfair prejudice” under Rule 403.
For the reasons set out above, plaintiff’s motion at docket 74 for leave to submit
videotapes in opposition to defendant’s motion for summary judgment is GRANTED.
DATED this 7th day of February 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Doc. 80 at p. 2.
Doc. 84 at p. 2.
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