Rodgers v. Gilbert et al

Filing 17

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 4/27/12; Court denies Plaintiffs request for disclosure of Bowmans Presentence Investigative Report and case is REMANDED to Jefferson Circuit Court. cc:counsel, Jefferson Circuit Court (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11-CV-604-H

DANIEL RODGERS, Administrator of the Estate
of DEE-ANN MARIE MACGREGOR ELLIOTT,
and DANIEL RODGERS, Legal Guardian and
Next Friend of Sarah MacGregor, a MINOR

PLAINTIFFS

V.
MATT GILBERT, Individually, and in his capacity
as Resident Monitor for Dismas Charities, Inc., and
as Agent, Servant, or Employee of Dismas Charities,
Inc., and DISMAS CHARITIES, Inc.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiffs filed this action in Jefferson Circuit Court alleging negligence, wrongful death,
and loss of consortium arising from the death of Dee-Ann MacGregor Elliott, who was killed by
Randy Bowman while both individuals were residents at Dismas Charities (“Dismas”). The
Court previously ruled that removal of this case to federal court was proper pursuant to the
Removal Clarification Act of 2011 which amended the federal officer removal statute, 28 U.S.C.
§ 1442. Plaintiffs now move for the Court to rule on disclosure of Bowman’s Presentence
Investigative Report (“PSR”) and to remand this case to Jefferson Circuit Court. Dismas agrees
that the Court should rule on disclosure of Bowman’s PSR, but urges the Court to retain
jurisdiction through final resolution of the case. For the reasons that follow, the Court will deny
Plaintiffs’ request for disclosure of Bowman’s PSR and this case will be remanded to Jefferson
Circuit Court.

I.
Presentence Investigative Reports are confidential documents owned by the United States
Probation Office and prepared to assist courts in criminal sentencings. In re Eugene Siler, 571
F.3d 604, 610 (6th Cir. 2009) (citation omitted). Ordinarily, “disclosure of such reports is
narrowly circumscribed even in the criminal cases for which they were prepared.” United States
v. Krause, 78 F.R.D. 203, 204 (D.C. Wis. 1978) (citing United States v. Greathouse, 484 F.2d
805 (7th Cir. 1973)). As the Supreme Court has emphasized, “in both civil and criminal cases
the courts have been very reluctant to give third parties access to the presentence investigation
report prepared for some other individual or individuals.” United States Dep’t of Justice v.
Julian, 486 U.S. 1, 12 (1988) (citation omitted). When requested, PSRs are released only in
circumstances where a party demonstrates “special need.” In re Eugene Siler, 571 F.3d at 611
(quoting Julian, 486 U.S. at 12). Such need is absent “when ‘virtually everything in the
presentence report [is] available from other sources.’” Id. (citations omitted).
Here, Plaintiffs argue that disclosure of Bowman’s PSR is relevant to their claim that
Dismas negligently accepted a dangerous individual as a resident. They seek the PSR to
establish what knowledge Defendants possessed of Bowman’s violent past at the time Bowman
was admitted to Dismas. In the state court proceedings below, Plaintiffs’ Motion to Compel
argued that parties requesting documents need only prove that the information sought is relevant.
If that indeed were the applicable standard, Plaintiffs would unquestionably succeed in their
motion. As explained above, however, PSRs present the unique considerations of confidentiality
and special need. Plaintiffs must go beyond establishing mere relevance. Here, they are unable
to do so because they offer no compelling reason to justify release of a federally protected

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document. Presumably, Dismas was presented with Bowman’s entire criminal record when he
arrived as an inmate. Plaintiffs have not established that they are unable to access Bowman’s
criminal history without discovery of the PSR. Nor have they alleged what the PSR will contain
that cannot otherwise be found in Bowman’s criminal record. If Plaintiffs seek only to prove the
extent to which Dismas was aware of Bowman’s violent history, then they need look no further
than his criminal record itself. Unless the PSR includes information specifically regarding
Bowman’s violent behavior, and such information would not otherwise be reflected in his
criminal history, the Court can identify no special need for disclosure of the protected document.
For these reasons, Plaintiffs fail to demonstrate sufficient need for Defendants’ disclosure of the
PSR.
II.
The parties also disagree as to whether the Court has jurisdiction over the remaining
issues in this case. Defendants argue that jurisdiction is proper even if removal was based solely
upon disclosure of the PSR. As support, they cite two court of appeals cases, one from the Sixth
Circuit, and one from the District of Columbia, which explain that federal courts assume
jurisdiction over all the claims and parties in a case when an action is removed pursuant to 28
U.S.C. § 1442(a)(1). Plaintiffs, on the other hand, argue that retaining jurisdiction now would
contradict the Court’s previous ruling that Defendants were time-barred from asserting the
government-contractor defense.
28 U.S.C. § 1442(c) resolves the parties’ disagreement. In addition to establishing that
cases may be removed when federal documents are sought in state court cases, the amendments
to § 1442 by the Removal Clarification Act of 2011 also elaborate on the effects of such

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removals. If removal is sought for a proceeding in which federal documents are requested, “and
there is no other basis for removal, only that proceeding may be removed to the district court.”
28 U.S.C. § 1442(c).
Here, removal was only proper because Plaintiffs sought discovery of the PSR. Although
Defendants could have asserted removal generally under the federal officer removal statute, their
previous attempt to do so was untimely and therefore denied. No proper basis for removal is
now present aside from the parties’ dispute over the PSR. Upon resolution of this narrow issue,
the case should be remanded to Jefferson Circuit Court.
The Court being otherwise sufficiently advised,
IT IS HEREBY CONCLUDED that Plaintiffs have failed to show sufficient need for
disclosure of Randy Bowman’s Presentence Investigative Report.
IT IS FURTHER ORDERED that this case is REMANDED to Jefferson Circuit Court.

April 27, 2012

cc:

Counsel of Record & Jefferson Circuit Court

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