Hansen v. Ryan et al

Filing 66

ORDER, the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss 52 ; Defendants' Motion to Dismiss 52 is denied; leave of the Court is granted to Defendants to take Plaintiff's deposition within 45 days from the date of this Order. Signed by Judge G Murray Snow on 8/17/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karen Marie Hansen,

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Plaintiff,
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vs.
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Charles Ryan, et al.,
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Defendants.

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No. CV 09-1290-PHX-GMS (ECV)
ORDER

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Plaintiff Karen Marie Hansen brought this civil rights action under 42 U.S.C. § 1983

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against various Arizona Department of Corrections (ADC) employees (Doc. 10).1 Before

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the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint pursuant

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to Federal Rule of Civil Procedure 37(b)(2)(A)(v) for failure to comply with a Court Order

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(Doc. 52).
The Court will deny Defendants’ motion.

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I.

Background

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Plaintiff’s claims arose during her confinement at the Arizona State Prison Complex-

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Perryville, in Goodyear, Arizona (Doc. 10 at 1). In her First Amended Complaint, Plaintiff

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set forth two counts of retaliation and two counts of denial of access to the courts (id.). She

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alleged that Defendants returned to sender multiple pieces of legal mail and refused to mail

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Defendants are Sergeant Mitchell and Correctional Officers Rahman, Mims,
Thornton, Garcia, Jones, and Backes (Doc. 10).

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a legal document to the federal court (id. at 3-5). Plaintiff claimed that Defendants’ actions

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resulted in court rulings against her (id. at 4-5).

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In February 2010, the Court issued a Scheduling and Discovery Order (Doc. 22).

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Pursuant to that Order, Defendants noticed Plaintiff’s deposition to be taken on October 6,

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2010 (Doc. 39). Plaintiff sought a protective order to prevent the deposition on the basis that

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the deposition notice was untimely and Defendants had failed to make initial disclosures

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required under the Federal Rules of Civil Procedure (Doc. 40). The Court denied her motion

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and ordered her to participate in the deposition and answer questions (Doc. 47). The

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Defendants therefore noticed Plaintiff’s deposition for January 5, 2011 (Doc. 48).

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During the deposition, Plaintiff invoked the Fifth Amendment and refused to answer

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a question about a state civil case filed against her, Titus Group, Inc. d/b/a Arizona

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Earthmovers v. Kennedy, CV 2003-0617, No. 1 CA-CV 07-0560 (Doc. 52 at 3).2 When

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defense counsel told Plaintiff that she was required to answer the question, Plaintiff

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responded that an attorney, whom she refused to name, advised her not to answer such

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questions (id.). Defendants’ counsel attempted to telephone the Magistrate Judge and the

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District Judge, to no avail (id.). After Plaintiff stated that she would not answer any

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questions about the state court case or about the instant action, defense counsel canceled the

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deposition (id. at 3-4).

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II.

Defendants’ Motion to Dismiss

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A.

Defendants’ Contentions

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Defendants move to dismiss Plaintiff’s First Amended Complaint on the ground that

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she failed to comply with the Court’s Order directing her to participate in the deposition and

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to answer questions (Doc. 52). They submit that under Rule 37(b)(2)(A)(v), dismissal is an

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appropriate sanction because (1) Plaintiff had previously filed an unsuccessful motion for a

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protective order to prevent the deposition, (2) she failed to file a motion for protective order

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Plaintiff does not dispute Defendants’ recitation of the events at the deposition, which
is supported by an attached copy of the deposition transcript (see Doc. 62; Doc. 52, Ex. A,
Pl. Dep. 10:1-13:4, Jan. 5, 2011).
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regarding the reason she refused to answer questions at the January 5, 2011 deposition,

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(3) she refused to answer questions about this suit or two other suits underlying her current

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claims, and (4) she refused to identify the counsel who advised her not to answer questions

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about the civil suits so that defense counsel could seek clarification from that attorney (id.).

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Defendants conclude that without the ability to question Plaintiff in a deposition, they

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are effectively prohibited from defending this suit (id. at 4-5). In addition to dismissal, they

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seek expenses and attorneys’ fees caused by Plaintiff’s failure to participate in discovery (id.

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at 5).
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Plaintiff’s Response

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Plaintiff opposes Defendants’ motion (Doc. 62). She explains that her criminal

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conviction is under post-conviction review, and that she is unable to answer deposition

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questions without implicating her Fifth Amendment rights (id. at 1, 9). According to

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Plaintiff, the Arizona Earthmovers civil action is directly related to, and an extension of, her

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criminal case (id. at 9). She submits that deposition questions regarding that civil action

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could relate to matters for which Plaintiff has not been, but could be, further prosecuted (id.).

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Plaintiff presents case law supporting that the right against self-incrimination applies

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to civil matters and that the privilege survives during a direct appeal and pending post-

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conviction relief (id. at 3-4). She also argues that the privilege against self-incrimination

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further applies to testimony, such as that in a deposition, that may furnish a link to evidence

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that could assist in prosecuting the individual testifying, and that mere attendance and

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response to questions could constitute waiver of the privilege (id. at 5-6).

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Plaintiff contends that Defendants have an effective alternative to deposition

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testimony; namely, requests for admissions (id. at 6-7). Plaintiff also suggests that she could

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be offered complete immunity from criminal prosecution (id. at 7). Plaintiff states that she

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has been unable to contact the chief Deputy County Attorney with regard to these

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alternatives, but believes immunity may be acceptable for her deposition testimony (id. at

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7-8).

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C.

Defendants’ Reply

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In reply, Defendants note that Plaintiff’s direct appeal of her 2003 criminal conviction

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was resolved three years ago (Doc. 63 at 1, citing to May 30, 2008 Mandate affirming Pl.’s

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conviction). Thus, they argue that Plaintiff cannot establish that she is immunized from

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providing her deposition testimony in this case (id.). Defendants renew their request for

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dismissal and add requests for dismissal with prejudice and attorneys’ fees under 42 U.S.C.

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§ 1988 based on Plaintiff’s frivolous position in opposition to their motion (id. at 2).

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III.

Federal Rules of Civil Procedure

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Under Federal Rule of Civil Procedure 37, a district court has discretion to impose a

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wide range of sanctions when a party fails to comply with the rules of discovery or with court

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orders enforcing those rules. U.S. EEOC v. ABM Indus. Inc., 2009 WL 1287757, at *2 (E.D.

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Cal. 2009) (citations omitted). When an adverse party fails to cooperate in discovery, the

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party seeking discovery may move to compel disclosure or discovery. Fed. R. Civ. P.

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37(a)(1). The party seeking discovery may move to compel a deponent to answer an

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appropriate question in an oral deposition and request sanctions for a refusal to answer. Fed.

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R. Civ. P. 37(a)(3)(B)(I) and 37(a)(5)(A). Specifically, a party may file a motion to compel

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a discovery response if a deponent fails to answer questions under Rules 30 and 31—the

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rules governing depositions. Fed. R. Civ. P. 37(a)(3)(B)(I).

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Federal Rule of Civil Procedure 30 governs a person’s behavior during a deposition.

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Generally, objections to a question during a deposition are noted on the record, “but the

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examination still proceeds; the testimony is taken subject to any objection.” Fed. R. Civ. P.

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30(c)(2). The only authorized exceptions for a deponent to not answer a question, or for a

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lawyer to instruct a deponent not to answer a question, are “when necessary to preserve a

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privilege, to enforce a limitation ordered by the court, or to present a motion under Rule

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30(d)(3).” Id. Federal Rule of Civil Procedure 26(b)(1) specifically provides that a civil

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litigant may not conduct discovery of a matter that is privileged.

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The Fifth Amendment privilege against self-incrimination applies to evidence that

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may directly support a criminal conviction, information that would furnish a link in the chain
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of evidence that could lead to prosecution, and evidence that a witness reasonably believes

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could be used against her in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461

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(1975) (citation omitted). The privilege may be invoked in the course of any proceeding,

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criminal or civil. Kastigar v. United States, 406 U.S. 441, 444 (1972); Campbell v. Gerrans,

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592 F.2d 1054, 1057 (9th Cir. 1979). Its availability does not depend on the type of

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proceeding; rather, it turns on the nature of the statement and the exposure it invites. Estelle

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v. Smith, 451 U.S. 454, 462 (1981).

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Here, Defendants did not file a motion to compel under Rule 37(a) in response to

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Plaintiff’s failure to answer deposition questions. Instead, they move under Rule 37(b) for

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dismissal based on Plaintiff’s failure to comply with a prior Order that denied Plaintiff’s

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protective order and directed her to participate in a deposition (Doc. 47). But that Order did

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not address Plaintiff’s asserted Fifth Amendment privilege against self-incrimination, which,

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as noted, is an authorized exception to answering questions. Fed. R. Civ. P. 30(d)(3).

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Plaintiff asserts that the privilege applies because the civil cases that Defendants seek to

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question her about are directly related to her criminal case, which she states is pending Rule

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32 post-conviction review (Doc. 62). See State v. Hansen, Yavapai County Superior Court,

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CR 20030191 (Rule 32 Post-Conviction Relief Extension of Time entered March 10, 2011).

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Defendants do not address and, thus, do not controvert Plaintiff’s argument that the privilege

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survives during post-conviction review proceedings (see Doc. 63, ref. only to Pl.’s direct

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appeal).

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Further, contrary to Defendants’ contention, Plaintiff’s failure to raise her Fifth

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Amendment privilege claim in a motion for protective order does not warrant dismissal.

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Indeed, the Court cannot determine whether a deponent’s responsive answer to a question

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might be incriminating except in the context of a propounded question. See Hoffman v.

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United States, 341 U.S. 479, 486-87 (1951); Roach v. Nat’l Transp. Safety Bd., 804 F.2d

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1147, 1151 (10th Cir. 1986) (to property assert the Fifth Amendment privilege, a witness

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must normally “be sworn to testify, and assert the privilege in response to each allegedly

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incriminating question as it is asked”).
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In light of the above, the Court finds that Defendants’ Motion to Dismiss is premature

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and, at this stage, dismissal would be too harsh because the Court has not yet ruled on

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whether the asserted privilege applies. See Campbell, 592 F.2d at 1057 (“[i]mposing the

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harshest of the Rule 37 sanctions on a proper exercise of Fifth Amendment rights is not in

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accord with Supreme Court decisions”). Defendants will therefore be granted leave of the

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Court to take Plaintiff’s deposition within the time set forth below. In setting the date and

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time of the deposition, Defendants must coordinate with the chambers of Magistrate Judge

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Voss to ensure that he is available to resolve any issues that arise during the deposition.

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Plaintiff is cautioned that the privilege against self-incrimination does not entitle her

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to refuse, in a blanket manner, to answer all of Defendants’ questions. See Lyons v. Johnson,

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415 F.2d 540, 542 (9th Cir. 1969) (holding Rule 37 sanctions proper where civil plaintiff

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“block[ed] all discovery attempts against him by asserting a Fifth Amendment privilege to

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any interrogation whatsoever upon his claim”). Even in the face of a party’s properly

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asserted Fifth Amendment right, a court still has the power to dismiss an action if necessary

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to prevent unfairness or prejudice to the other party. See id.; Wehling v. Columbia Broad.

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Sys., 608 F.2d 1084, 1087 n. 6 & 1088 (5th Cir. 1979) (“a civil plaintiff has no absolute right

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to both his silence and his lawsuit”).

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to

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Dismiss (Doc. 52).

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(2) Defendants’ Motion to Dismiss (Doc. 52) is denied.

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(3) Leave of the Court is granted to Defendants to take Plaintiff’s deposition within

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45 days from the date of this Order.

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(4) In scheduling Plaintiff’s deposition, Defendants must coordinate with the

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chambers of Magistrate Judge Voss to ensure that Judge Voss is available to address any

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issues that may arise.

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DATED this 17th day of August, 2011.

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