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ORDER, the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss 52 ; Defendants' Motion to Dismiss 52 is denied; leave of the Court is granted to Defendants to take Plaintiff's deposition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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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Karen Marie Hansen, 10 Plaintiff, 11 vs. 12 Charles Ryan, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-1290-PHX-GMS (ECV) ORDER 16 Plaintiff Karen Marie Hansen brought this civil rights action under 42 U.S.C. § 1983 17 against various Arizona Department of Corrections (ADC) employees (Doc. 10).1 Before 18 the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint pursuant 19 to Federal Rule of Civil Procedure 37(b)(2)(A)(v) for failure to comply with a Court Order 20 (Doc. 52). The Court will deny Defendants’ motion. 21 22 I. Background 23 Plaintiff’s claims arose during her confinement at the Arizona State Prison Complex- 24 Perryville, in Goodyear, Arizona (Doc. 10 at 1). In her First Amended Complaint, Plaintiff 25 set forth two counts of retaliation and two counts of denial of access to the courts (id.). She 26 alleged that Defendants returned to sender multiple pieces of legal mail and refused to mail 27 1 28 Defendants are Sergeant Mitchell and Correctional Officers Rahman, Mims, Thornton, Garcia, Jones, and Backes (Doc. 10). 1 a legal document to the federal court (id. at 3-5). Plaintiff claimed that Defendants’ actions 2 resulted in court rulings against her (id. at 4-5). 3 In February 2010, the Court issued a Scheduling and Discovery Order (Doc. 22). 4 Pursuant to that Order, Defendants noticed Plaintiff’s deposition to be taken on October 6, 5 2010 (Doc. 39). Plaintiff sought a protective order to prevent the deposition on the basis that 6 the deposition notice was untimely and Defendants had failed to make initial disclosures 7 required under the Federal Rules of Civil Procedure (Doc. 40). The Court denied her motion 8 and ordered her to participate in the deposition and answer questions (Doc. 47). The 9 Defendants therefore noticed Plaintiff’s deposition for January 5, 2011 (Doc. 48). 10 During the deposition, Plaintiff invoked the Fifth Amendment and refused to answer 11 a question about a state civil case filed against her, Titus Group, Inc. d/b/a Arizona 12 Earthmovers v. Kennedy, CV 2003-0617, No. 1 CA-CV 07-0560 (Doc. 52 at 3).2 When 13 defense counsel told Plaintiff that she was required to answer the question, Plaintiff 14 responded that an attorney, whom she refused to name, advised her not to answer such 15 questions (id.). Defendants’ counsel attempted to telephone the Magistrate Judge and the 16 District Judge, to no avail (id.). After Plaintiff stated that she would not answer any 17 questions about the state court case or about the instant action, defense counsel canceled the 18 deposition (id. at 3-4). 19 II. Defendants’ Motion to Dismiss 20 A. Defendants’ Contentions 21 Defendants move to dismiss Plaintiff’s First Amended Complaint on the ground that 22 she failed to comply with the Court’s Order directing her to participate in the deposition and 23 to answer questions (Doc. 52). They submit that under Rule 37(b)(2)(A)(v), dismissal is an 24 appropriate sanction because (1) Plaintiff had previously filed an unsuccessful motion for a 25 protective order to prevent the deposition, (2) she failed to file a motion for protective order 26 27 28 2 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). -2- 1 regarding the reason she refused to answer questions at the January 5, 2011 deposition, 2 (3) she refused to answer questions about this suit or two other suits underlying her current 3 claims, and (4) she refused to identify the counsel who advised her not to answer questions 4 about the civil suits so that defense counsel could seek clarification from that attorney (id.). 5 Defendants conclude that without the ability to question Plaintiff in a deposition, they 6 are effectively prohibited from defending this suit (id. at 4-5). In addition to dismissal, they 7 seek expenses and attorneys’ fees caused by Plaintiff’s failure to participate in discovery (id. 8 at 5). B. 9 Plaintiff’s Response 10 Plaintiff opposes Defendants’ motion (Doc. 62). She explains that her criminal 11 conviction is under post-conviction review, and that she is unable to answer deposition 12 questions without implicating her Fifth Amendment rights (id. at 1, 9). According to 13 Plaintiff, the Arizona Earthmovers civil action is directly related to, and an extension of, her 14 criminal case (id. at 9). She submits that deposition questions regarding that civil action 15 could relate to matters for which Plaintiff has not been, but could be, further prosecuted (id.). 16 Plaintiff presents case law supporting that the right against self-incrimination applies 17 to civil matters and that the privilege survives during a direct appeal and pending post- 18 conviction relief (id. at 3-4). She also argues that the privilege against self-incrimination 19 further applies to testimony, such as that in a deposition, that may furnish a link to evidence 20 that could assist in prosecuting the individual testifying, and that mere attendance and 21 response to questions could constitute waiver of the privilege (id. at 5-6). 22 Plaintiff contends that Defendants have an effective alternative to deposition 23 testimony; namely, requests for admissions (id. at 6-7). Plaintiff also suggests that she could 24 be offered complete immunity from criminal prosecution (id. at 7). Plaintiff states that she 25 has been unable to contact the chief Deputy County Attorney with regard to these 26 alternatives, but believes immunity may be acceptable for her deposition testimony (id. at 27 7-8). 28 -3- 1 C. Defendants’ Reply 2 In reply, Defendants note that Plaintiff’s direct appeal of her 2003 criminal conviction 3 was resolved three years ago (Doc. 63 at 1, citing to May 30, 2008 Mandate affirming Pl.’s 4 conviction). Thus, they argue that Plaintiff cannot establish that she is immunized from 5 providing her deposition testimony in this case (id.). Defendants renew their request for 6 dismissal and add requests for dismissal with prejudice and attorneys’ fees under 42 U.S.C. 7 § 1988 based on Plaintiff’s frivolous position in opposition to their motion (id. at 2). 8 III. Federal Rules of Civil Procedure 9 Under Federal Rule of Civil Procedure 37, a district court has discretion to impose a 10 wide range of sanctions when a party fails to comply with the rules of discovery or with court 11 orders enforcing those rules. U.S. EEOC v. ABM Indus. Inc., 2009 WL 1287757, at *2 (E.D. 12 Cal. 2009) (citations omitted). When an adverse party fails to cooperate in discovery, the 13 party seeking discovery may move to compel disclosure or discovery. Fed. R. Civ. P. 14 37(a)(1). The party seeking discovery may move to compel a deponent to answer an 15 appropriate question in an oral deposition and request sanctions for a refusal to answer. Fed. 16 R. Civ. P. 37(a)(3)(B)(I) and 37(a)(5)(A). Specifically, a party may file a motion to compel 17 a discovery response if a deponent fails to answer questions under Rules 30 and 31—the 18 rules governing depositions. Fed. R. Civ. P. 37(a)(3)(B)(I). 19 Federal Rule of Civil Procedure 30 governs a person’s behavior during a deposition. 20 Generally, objections to a question during a deposition are noted on the record, “but the 21 examination still proceeds; the testimony is taken subject to any objection.” Fed. R. Civ. P. 22 30(c)(2). The only authorized exceptions for a deponent to not answer a question, or for a 23 lawyer to instruct a deponent not to answer a question, are “when necessary to preserve a 24 privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 25 30(d)(3).” Id. Federal Rule of Civil Procedure 26(b)(1) specifically provides that a civil 26 litigant may not conduct discovery of a matter that is privileged. 27 The Fifth Amendment privilege against self-incrimination applies to evidence that 28 may directly support a criminal conviction, information that would furnish a link in the chain -4- 1 of evidence that could lead to prosecution, and evidence that a witness reasonably believes 2 could be used against her in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461 3 (1975) (citation omitted). The privilege may be invoked in the course of any proceeding, 4 criminal or civil. Kastigar v. United States, 406 U.S. 441, 444 (1972); Campbell v. Gerrans, 5 592 F.2d 1054, 1057 (9th Cir. 1979). Its availability does not depend on the type of 6 proceeding; rather, it turns on the nature of the statement and the exposure it invites. Estelle 7 v. Smith, 451 U.S. 454, 462 (1981). 8 Here, Defendants did not file a motion to compel under Rule 37(a) in response to 9 Plaintiff’s failure to answer deposition questions. Instead, they move under Rule 37(b) for 10 dismissal based on Plaintiff’s failure to comply with a prior Order that denied Plaintiff’s 11 protective order and directed her to participate in a deposition (Doc. 47). But that Order did 12 not address Plaintiff’s asserted Fifth Amendment privilege against self-incrimination, which, 13 as noted, is an authorized exception to answering questions. Fed. R. Civ. P. 30(d)(3). 14 Plaintiff asserts that the privilege applies because the civil cases that Defendants seek to 15 question her about are directly related to her criminal case, which she states is pending Rule 16 32 post-conviction review (Doc. 62). See State v. Hansen, Yavapai County Superior Court, 17 CR 20030191 (Rule 32 Post-Conviction Relief Extension of Time entered March 10, 2011). 18 Defendants do not address and, thus, do not controvert Plaintiff’s argument that the privilege 19 survives during post-conviction review proceedings (see Doc. 63, ref. only to Pl.’s direct 20 appeal). 21 Further, contrary to Defendants’ contention, Plaintiff’s failure to raise her Fifth 22 Amendment privilege claim in a motion for protective order does not warrant dismissal. 23 Indeed, the Court cannot determine whether a deponent’s responsive answer to a question 24 might be incriminating except in the context of a propounded question. See Hoffman v. 25 United States, 341 U.S. 479, 486-87 (1951); Roach v. Nat’l Transp. Safety Bd., 804 F.2d 26 1147, 1151 (10th Cir. 1986) (to property assert the Fifth Amendment privilege, a witness 27 must normally “be sworn to testify, and assert the privilege in response to each allegedly 28 incriminating question as it is asked”). -5- 1 In light of the above, the Court finds that Defendants’ Motion to Dismiss is premature 2 and, at this stage, dismissal would be too harsh because the Court has not yet ruled on 3 whether the asserted privilege applies. See Campbell, 592 F.2d at 1057 (“[i]mposing the 4 harshest of the Rule 37 sanctions on a proper exercise of Fifth Amendment rights is not in 5 accord with Supreme Court decisions”). Defendants will therefore be granted leave of the 6 Court to take Plaintiff’s deposition within the time set forth below. In setting the date and 7 time of the deposition, Defendants must coordinate with the chambers of Magistrate Judge 8 Voss to ensure that he is available to resolve any issues that arise during the deposition. 9 Plaintiff is cautioned that the privilege against self-incrimination does not entitle her 10 to refuse, in a blanket manner, to answer all of Defendants’ questions. See Lyons v. Johnson, 11 415 F.2d 540, 542 (9th Cir. 1969) (holding Rule 37 sanctions proper where civil plaintiff 12 “block[ed] all discovery attempts against him by asserting a Fifth Amendment privilege to 13 any interrogation whatsoever upon his claim”). Even in the face of a party’s properly 14 asserted Fifth Amendment right, a court still has the power to dismiss an action if necessary 15 to prevent unfairness or prejudice to the other party. See id.; Wehling v. Columbia Broad. 16 Sys., 608 F.2d 1084, 1087 n. 6 & 1088 (5th Cir. 1979) (“a civil plaintiff has no absolute right 17 to both his silence and his lawsuit”). 18 IT IS ORDERED: 19 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to 20 Dismiss (Doc. 52). 21 (2) Defendants’ Motion to Dismiss (Doc. 52) is denied. 22 (3) Leave of the Court is granted to Defendants to take Plaintiff’s deposition within 23 45 days from the date of this Order. 24 /// 25 /// 26 /// 27 /// 28 /// -6- 1 (4) In scheduling Plaintiff’s deposition, Defendants must coordinate with the 2 chambers of Magistrate Judge Voss to ensure that Judge Voss is available to address any 3 issues that may arise. 4 DATED this 17th day of August, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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