Gavins v. City of South Miami et al

Filing 55

ORDER denying 38 Plaintiff's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 7/28/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-24845-Civ-COOKE/TORRES
MICHAEL JEROME GAVINS,
Plaintiff,
v.
ARYO REZAIE, and the CITY OF
SOUTH MIAMI, a municipal corporation;
Defendants.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on Michael Jerome Gavin’s (“Plaintiff”)
Motion to Compel (“Motion”) the psychological evaluation of Aryo Rezaie
(“Defendant”). [D.E. 38]. Defendant responded to Plaintiff’s Motions on July 20,
2017 [D.E. 43] to which Plaintiff replied on July 27, 2017. [D.E. 54]. Therefore,
Plaintiff’s Motion is now ripe for disposition. After careful consideration of the
Motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s Motion is DENIED.
I.

ANALYSIS

Plaintiff’s Motion seeks to compel the production of Defendant’s psychological
evaluation that was part of his hiring process when he became a police officer.
Specifically, Defendant had a pre-employment evaluation with Dr. Brian Mangan
prior to being hired and the meeting between the two supposedly lasted no more
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than ten minutes.

Plaintiff argues that he is willing to stipulate to the

confidentiality of the evaluation and agrees not to use it in any way outside the
contours of this case. As support for the production of the psychological evaluation,
Plaintiff contends that the claims against the Defendant are intricately related to
the officer’s conduct on the date Plaintiff was shot by the police. In other words,
Plaintiff suggests that the evaluation is relevant because it relates to whether the
Defendant was “fit” for duty, prone to use excessive force, and whether the City of
South Miami (the “City”) knew about these issues.

Because Defendant has

allegedly refused to produce this evaluation, Plaintiff moves to compel its
production because the claims against the City include its conduct as to this officer
not only in connection with the shooting specifically, but also in the City’s hiring
and retention of the Defendant.
In response, Defendant argues that Plaintiff’s Motion fails for several
reasons. First, Defendant contends that he does not have a copy of the evaluation
in his possession and that he has always believed that its contents would remain
confidential. Second, Defendant suggests that the evaluation is protected by the
psychotherapist-patient privilege and is undiscoverable in this action.
Defendant

believes

that

the

evaluation

is

also

privileged

Third,

under

the

executive/governmental privilege, and that the balancing of the equities under the
Frankenhauser test disfavors the disclosure of psychological evaluations in
connection with law enforcement officers.

And fourth, Defendant argues that

Plaintiff never conferred with Defendant as it pertains to Plaintiff’s Motion. While
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Defendant concedes that Plaintiff previously requested Defendant’s psychological
evaluation, Plaintiff allegedly never sent Defendant a copy of the Motion before
filing it and failed to advise Defendant that he would seek a motion to compel. As
such, Defendant suggests that Plaintiff knew of Defendant’s objections to producing
the psychological evaluation for many months and that Plaintiff never sought court
intervention until the discovery period lapsed.

Because Plaintiff purportedly

violated Local Rule 7.1(a), and failed to make reasonable efforts to confer with all
parties for the relief sought in a good faith effort, Defendant suggests that Plaintiff’s
Motion can be denied on this basis alone.
In Jaffee v. Redmond, the U.S. Supreme Court first recognized the existence
of a psychotherapist-patient privilege and held that “confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or
treatment are protected from compelled disclosure under Rule 501 of the Federal
Rules of Evidence.” 518 U.S. 1, 15 (1996) (footnote omitted). In a footnote, the
Court explained that – like other testimonial privileges – the patient may waive its
protection, yet the Court did not specify the “full contours” or delineate what
conditions must be met for a waiver to occur. Id. at 17. Instead, the Court reserved
that question for another day because the Court did not think it would be neither
feasible nor appropriate to consider the full scope of the psychotherapist-patient
privilege to govern all future conceivable questions.

The Court also rejected a

proposed balancing of the need for the information against the need for
confidentiality as a test for determining whether the privileged applied.
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Since Jaffe, federal courts have expanded on the psychotherapist-patient
privilege and largely held that mental health records are protected from discovery
unless the patient had no reasonable expectation that the communications would
remain private.

See, e.g., Scott v. Edinburg, 101 F. Supp. 2d 1017, 1020

(N.D.Ill.2000) (concluding that no psychotherapist-patient privilege existed because
prior to the evaluation, the police officer was informed that the evaluation and
testing results would be reviewed by the police chief and the psychologist’s written
report could be subpoenaed in a lawsuit); Kamper v. Gray 182 F.R.D. 597, 599 (E.D.
Mo. 1998) (rejecting the existence of a psychotherapist patient privilege because the
police officer was aware that his mental health evaluations would be reported to his
employer, and thus he “had no reasonable expectation of confidentiality regarding
his communications with [the therapist]”).

As such, “[t]he determinative factor

assessing the existence of a psychotherapist-patient privilege is whether an officer
had a reasonable expectation of confidentiality relating to the . . . counseling session
or evaluation.” James v. Harris Co., 237 F.R.D. 606, 611-12 (S.D. Tex. 2006).
Here, the parties agree that the purpose of Defendant’s pre-employment
psychological evaluation was to determine whether the Defendant would be “fit” for
duty as a police officer.1

And Plaintiff presents no contention to challenge

Defendant’s argument that Defendant did not intend to have his psychological
health disclosed to anyone other than the psychotherapist who administered the
evaluation. The most analogous case to the facts presented is the decision in Caver
Because Defendant was hired by the City, Defendant was obviously found to
be “fit” for employment as a law enforcement officer.
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v. City of Trenton, 192 F.R.D. 154, 163 (D.N.J. 2000). In Caver, the court held that
the critical issue on whether a privilege applied was an officer’s expectation of
confidentiality. Specifically, the court reasoned that pre-employment psychological
evaluations for law enforcement almost always carry an absolute expectation of
privacy and that the production of these items are detrimental to the public good:
The Court finds that disclosure here would be detrimental to the public
good. Police Officers are required to undergo psychological evaluations
in order to determine whether they are mentally fit to be police
officers. This testing is performed not only to benefit the officer’s
mental well-being, but more importantly, to ensure the safety of the
community by protecting its citizens from police officers whose mental
instability poses a risk to public safety. If police officers know that
their psychological records may be disclosed to the public, there exists
a likelihood that they would not be completely candid when speaking
to a mental health professional. This lack of candor would, in turn,
defeat the purpose for psychological evaluations, which is, determining
mental fitness for the job. The Court recognizes that the public has an
interest in knowing whether their police are mentally fit for the job,
but disclosure of actual psychological records is not necessary and
would have a chilling effect on frankness between patient and
psychologist.
If police officers are not completely honest when
speaking to a mental health professional, it will make it more difficult
for the mental health professional to accurately evaluate the mental
status of a police officer, and to ensure public safety.
Caver, 192 F.R.D. at 163.
The same reasoning applies here. Plaintiff has failed to present any evidence
to suggest that Defendant did not have a reasonable expectation of privacy to
overcome the psychotherapist-patient privilege for a pre-employment psychological
evaluation.

Plaintiff has also failed to explain why a routine pre-employment

evaluation that merely determines whether an officer is “fit” for duty as a law
enforcement officer is materially relevant to the facts of this case. Because we find
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that Defendant had a reasonable expectation of privacy, Plaintiff’s Motion fails on
this basis alone. As such, we need not explore the rest of Defendant’s arguments
and therefore Plaintiff’s Motion must be DENIED.
II.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s Motion to Compel is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 28th day of
July, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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