Lestienne v. Layne et al
MEMORANDUM OPINION & ORDER granting in part 34 Motion to Compel. Signed by Chief Judge Thomas B. Russell on 10/7/2011. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CASE NO. 5:10-CV-200
JAMES LAYNE, individually;
VINCENT BROWN, individually;
JACK ROWLANDS, individually;
MILTON PERRY, individually and in his
Official Capacity as Chief of the Oak Grove Police.
And the CITY OF OAK GROVE
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff’s Renewed Motion to Compel (DN 34).
Defendants have responded (DN 36). The Court has completed an in camera review of the
materials that are the subject of this motion to compel. This matter is now ripe for adjudication.
For the foregoing reasons, Plaintiff’s motion is GRANTED IN PART.
On December 12, 2009, Plaintiff Richard Lestienne was arrested for terroristic
threatening, disorderly conduct, resisting arrest and alcohol intoxication by Defendant Layne, a
police officer in the police department of Oak Grove, Kentucky. Plaintiff alleges that at the time
of arrest, Defendant Layne “set his police dog upon Lestienne” and the dog attacked and bit his
arm, causing permanent nerve damage to his arm. In addition to filing suit against Defendant
Layne, Plaintiff asserted claims against other police officers in the police department of Oak
Grove, Vincent Brown and Jack Rowlands; the Chief of Police in the police department of Oak
Grove, Milton Perry; and the City of Oak Grove. Plaintiff alleges assault and malicious
prosecution by Defendant Layne. Plaintiff further alleges violations of his Constitutional rights
by Defendants Layne, Perry, Oak Grove, Brown, and Rowlands.
Determining “the scope of discovery is within the sound discretion of the trial court.”
Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Under Rule 37(a)(1), “a
party may move for an order compelling disclosure or discovery.” Fed. R. Civ. Pro. 37(a)(1). In
doing so, “the motion must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Id. Motions to compel discovery responses are authorized
where a party fails to provide proper responses to interrogatories under Rule 33 or requests for
production of documents under Rule 34. Fed. R. Civ. Pro. 37(a)(3)(B)(iii), (iv).
1. Signed Discovery Responses
In his motion to compel, Plaintiff seeks to receive a signed copy of Defendants’
responses to Plaintiff’s discovery requests. Defendants served a signed copy of these responses
to counsel for Plaintiff on August 18, 2011. Accordingly, this issue is moot.
2. Perry’s Personnel File
Plaintiff also seeks an order to compel Defendants to produce the personnel file of
Defendant Milton Perry. Defendant Perry has objected to the production of his personnel file on
the grounds that such a production would constitute an invasion of his personal privacy, pursuant
to KRS § 61.878(1)(a), an exception under the Kentucky Open Records Act. However,
Plaintiff’s request for the personnel file did not come through the Open Records Act, but through
the channels of discovery in the present litigation. The exceptions of KRS § 61.878(1) are only
applicable to requests for records made through the Open Records Act. Therefore, the exception
under KRS § 61.878(1)(a) relied upon by Defendants is not germane to Plaintiff’s motion to
Defendants further object that such information is not relevant and will not lead to any
discoverable matter in this case. Discovery requests are not limitless. “Although a plaintiff
should not be denied access to information necessary to establish her claim, neither may a
plaintiff be permitted ‘to go fishing and a trial court retains discretion to determine that a
discovery request is too broad and oppressive.’” Surles v. Greyhound Lines, Inc., 474 F.3d 288,
305 (6th Cir. 2007) (quoting Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir.
1978)). “Parties may obtain discovery regarding any non-privileged matter that is relevant to
any party’s claim or defense . . . .” Fed. R. Civ. Pro. 26(b)(1). Relevant information does not
need to be admissible so long as the “discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id.
In his complaint, Plaintiff alleges that Defendant Perry “failed to provide defendant
officers with proper training and supervision,” was “negligent in the selection, appointment,
supervision, and retention of defendant officers,” and acquiescing in officer misconduct which
constituted a “willful, intentional, callous, and reckless indifference to the civil rights of plaintiff
Lestienne.” Complaint, DN 1, at ¶¶ 18-22. The Court performed an in camera review of
Defendant Perry’s personnel file to determine the relevancy of its contents to Plaintiff’s claims.
After reviewing the file, the Court finds that the file does contain information and
documents which may be relevant to Plaintiff’s claims against Defendants. In any event, the
Court finds these documents are discoverable:
Employee Performance Evaluation – July 1, 2004
July 2002 Employee Performance Evaluation
December 28, 2001 Employee Performance Evaluation
Performance Objectives Presented to and Reviewed with Employee on January 24,
Recommendations as a result of meeting with Mayor Jean Leavell and Mr. Keith
Lampkin on February 21, 2001 and Loss Prevention Survey conducted on February 20,
Memorandum dated March 29, 2001 Re: Dispatchers
Memorandum to All Police Department Employees Dated May 14, 1999 Re: Who Is In
Interoffice Memorandum From Mayor Bobby Mace to Chief Milton Perry dated
November 14, 1995 Re: Daily Meetings with Mayor Mace
Letter from Mayor Jean Leavell to Perry dated June 28, 1999 Re: Duty Time
(10) Memorandum dated October 27, 2000 From Keith Lampkin Re: Calling in for Sick
(11) Memorandum dated October 25, 2000 from Keith Lampkin Re: Chief Milton Perry
(12) All Disciplinary Warnings
(13) All Memorandum from Defendant Perry regarding annual leave dates
(14) Memorandum from Mayor Bobby Mace to Perry dated July 25, 1995 Re: Discipline
(15) Letter to Milton Perry from Mayor Dan Potter dated March 28, 2011 Re: Termination
(16) Letter from Evelyn McDaniel dated 3-21-11 regarding Encounter with Denise Perry
(17) Letter from Mayor to Chief Milton Perry dated February 4, 2011
(18) Employee Attendance Record for December 1996.
Accordingly, Defendants shall provide a copy of the foregoing listed documents in Defendant
Perry’s personnel file to Plaintiff within fourteen (14) days of the filing of this Order.
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel
is GRANTED IN PART.
October 7, 2011
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