Edwards v. Dwyer et al

Filing 349

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Missouri Department of Corrections and the Missouri Attorney Generals Office shall search their files and records, including any archives or litigation files, and inquire if need be of the State of Missouri Office of Administration or other appropriateresource, to obtain the Social Security numbers and any other personally identifying information, such as employee numbers, of named defendant Tamara Cobbs and Tamoshanter D. Cobb. IT IS FURTHER O RDERED that the Missouri Attorney Generals Office shall search its files and records, including any archives or litigation files, to determine what address it provided tothe Court in camera and under seal in June 2007 as the address of named defendan t Tamara Cobbs.IT IS FURTHER ORDERED that the Missouri Department of Corrections and the Missouri Attorney General's Office shall redact from their responses to this Order address information and any personal data identifiers, as required by Fed eral Rule of Civil Procedure 5.1, and shall also file unredacted versions under seal. IT IS FURTHER ORDERED that the Missouri Department of Corrections and the Missouri Attorney General's Offices responses to this Order shall be verified by an a ppropriate individual and shall describe the steps that were taken to comply with it. IT IS FURTHER ORDERED that the Missouri Department of Corrections and the Missouri Attorney Generals Office shall file their responses to this Order by April 24, 2017 Response to Court due by 4/24/2017. Signed by District Judge Charles A. Shaw on 3/23/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

LAWRENCE MARTIN EDWARDS,
Plaintiff,
v.
CHUCK DWYER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 1:06-CV-1 CAS

MEMORANDUM AND ORDER
This closed prisoner civil rights matter is before the Court on review of the Missouri
Department of Corrections’ (“MDOC”) Response to the Court’s Order of January 26, 2017. The
Court will not repeat the factual and procedural background of this matter, which was set forth in
detail in the Order and is incorporated herein by this reference. The Order of January 26, 2017
directed the MDOC to “file a Response supported by an affidavit or declaration signed under penalty
of perjury by an appropriate MDOC official, which shall provide information sufficient to answer
the following questions:”
(1) Were there two different persons employed by the MDOC, one named
Tamara Cobbs (or similar) who left the MDOC’s employment in 2001, and one
named Tamoshanter D. Cobb who worked at [Southeast Correctional Center] in
2005;
(2) what address did the MDOC provide to the Court in camera and under
seal in late June 2007 as the address of Tamara Cobbs (if possible, the MDOC shall
submit a copy of the actual filing that was made in camera and under seal in June
2007 as an exhibit to the Response); and
(3) was the address the MDOC provided to the Court in late June 2007 the
last known address of Tamara Cobbs, or Tamoshanter D. Cobb.
Order of January 26, 2017 at 9 (Doc. 342).

In response, the MDOC filed the Affidavit of Matthew Briesacher, MDOC’s current Director
of Human Resources. The Briesacher Affidavit states in pertinent part:
3. My search of Department records has not revealed that the Department has ever
employed a person named Tamara Cobbs or any other person with a similar name.
4. The Department has had an employee named Tamoshanter D. Cobb who worked
for the Department from 11/17/2003 until 5/16/2006.
5. The last known address for Tamoshanter D. Cobb in any record the Department
has access to is [REDACTED]. This information was obtained from the Office of
Administration.
6. I am without personal knowledge as to what address the Department provided to
the Court under seal in June 2007, however, documentation provided to me by the
Missouri Attorney General’s Office indicates that the Department provided the
address [REDACTED], to the Court under seal. (Ex. A).
Briesacher Aff. at 2-3 (Doc. 348-1).
Exhibit A to the Briesacher Affidavit is a Notice of Filing Document Under Seal (Doc. 125),
which bears an Electronic Case Filing header indicating it was filed in this case on June 29, 2007
as Document 125. The Notice of Filing Document Under Seal does not include the last known
address for named defendant Tamara Cobbs, but states that the address will be filed separately in
camera and under seal. Attached to Briesacher Affidavit Exhibit A is a document titled “Address
Filed Under Seal,” which does not include an Electronic Case Filing header. A review of the Court
record, however, establishes that this document was filed under seal on March 12, 2012 as
Document 335 by nonparty George Lombardi in response to the undersigned’s Order of January 10,
2012 (Doc. 327), not in June 2007 in response to Judge Buckles’ Order of June 26, 2007 that
directed the MDOC to provide the Court with named defendant Tamara Cobbs’ last known address.

2

It is important to recognize that paragraph 6 of the Briesacher Affidavit refers to a document
filed in 2012 to purportedly establish the address that was submitted to the Court in June 2007 for
service of summons and complaint on named defendant Tamara Cobbs. For the reasons discussed
below, paragraph 6 of the Briesacher Affidavit appears to be factually incorrect. Further, paragraph
3 of the Briesacher Affidavit is contrary to the MDOC’s representation to the Court in the
Nonparty’s Response and Motion to Quash Plaintiff’s Subpoena Directed to George Lombardi (Doc.
326) filed in November 2011, which stated in pertinent part that there was an MDOC employee
named Tamara Cobbs who “left her employment with the Missouri Department of Corrections in
2001 and her employment file was destroyed in 2008 or 2009.” (Doc. 326 at 2, ¶ 6.)1
The Court notes that the MDOC did not disclose the existence of a former employee named
Tamoshanter D. Cobb until January 31, 2012, through the Affidavit of George Lombardi (Doc. 329).
This disclosure occurred only after the Court stated in the Order of January 10, 2012 that the
allegations of plaintiff’s Complaint referred to events occurring in 2005, years after named
defendant Tamara Cobbs had left the MDOC’s employ, and the Court had ordered a further, verified
response from the MDOC.
The Lombardi Affidavit filed in response to the Order of January 10, 2012 stated in pertinent
part:
In response to the Court’s January 10, 2012 order, MDOC initiated an extensive
search of a variety of MDOC records. The Department did discover a former

1

The Missouri Department of Corrections, and its legal counsel the Missouri Attorney
General’s Office, are advised they must take steps to insure that the representations they make to
the Court are (1) accurate, and (2) consistent. The Court is frankly shocked that neither the
Department of Corrections’ Response to Court Order (Doc. 348) nor the Briesacher Affidavit (Doc.
348-1) acknowledge or refer to the prior and sometimes inconsistent representations made by
MDOC to the Court on these subjects.
3

employee by the name of Tamoshanter D. Cobb, who worked at Southeast
Corrections Center (“SECC”) from 2003 to 2006.
Lombardi Aff. at 2, ¶¶ 5, 6 (Doc. 329-1). Mr. Lombardi subsequently filed a supplemental response
that stated in pertinent part:
10. On June 29, 2007, MDOC provided the Court with the last known
address for Tamoshanter Cobb, in camera and under seal. Doc. 125.
11. The address filed under seal in June of 2007 is still the last known
address for Tamoshanter Cobb within MDOC’s files and records.
12. In January 2012, Director Lombardi directed an additional search for
information about Tamoshanter Cobb within the State of Missouri Office of
Administration. This search revealed that Tamoshanter Cobb returned to state
service with a different agency in 2008, for a five month period. The Division of
Personnel within the State of Missouri Office of Administrative [sic] has a more
recent last known address for Tamoshanter Cobb than that within MDOC’s
records. The address last known to the State of Missouri Office of Administration
for defendant Tamoshanter Cobb is filed contemporaneously with the Court in
camera and under seal.
Lombardi Supplemental Response at 4 (Doc. 333) (bold and underline emphases added).
The Lombardi Supplemental Response did not include the address from the MDOC’s “files
and records” that was provided to the Court in June 2007, but it claims that the address was for
Tamoshanter D. Cobb. (Doc. 333, ¶ 10.) The Supplemental Response did not clarify whether the
last known address for Tamoshanter D. Cobb allegedly provided to the Court in 2007, as stated in
paragraph 10, was actually the address for Tamoshanter D. Cobb or if it was instead the address for
named defendant Tamara Cobbs.
The Court questions whether and why the MDOC would have provided the Court with the
last known address of Tamoshanter D. Cobb in June 2007, given that (1) Tamara Cobbs was the
named defendant, (2) Tamoshanter D. Cobb was not named as a defendant, and (3) the MDOC did
not disclose Tamoshanter D. Cobb’s name or existence until January 2012, years after default

4

judgment was entered in this case against named defendant Tamara Cobbs and all other defendants
had been dismissed.
Based on paragraph 12 of the Lombardi Supplemental Response (Doc. 333), the Court finds
that the address provided to the Court by the MDOC and the Missouri Attorney General’s Office
for service on defendant Tamara Cobbs in June 2007 must be different than the address it filed with
the Court under seal on March 12, 2012 as Document 335. Therefore, the Court further finds that
the address filed with the Court under seal on March 12, 2012 as Document 335 is not the address
at which service of summons and complaint occurred on named defendant Tamara Cobbs in 2007.
As a result of the foregoing, the MDOC’s Briesacher Affidavit does not resolve the Court’s
questions:
(1) Were there two different persons employed by the MDOC, one named
Tamara Cobbs (or similar) who left the MDOC’s employment in 2001, and one
named Tamoshanter D. Cobb who worked at [Southeast Correctional Center] in
2005;
(2) what address did the MDOC provide to the Court in camera and under
seal in late June 2007 as the address of Tamara Cobbs (if possible, the MDOC shall
submit a copy of the actual filing that was made in camera and under seal in June
2007 as an exhibit to the Response); and
(3) was the address the MDOC provided to the Court in late June 2007 the
last known address of Tamara Cobbs, or Tamoshanter D. Cobb.
Order at 9 (Doc. 342).
The Lombardi Affidavit indicates that the answer to the first question may be “yes.” The
second and third questions remain unanswered. The answers to these questions are crucial to the
validity of the default judgment plaintiff seeks to collect, and therefore further investigation is
required.

5

The Court will order the Missouri Department of Corrections and the Missouri Attorney
General’s Office to search their files and records, including archives and litigation files, and to make
inquiry with the State of Missouri Office of Administration or other appropriate resource, to obtain
the Social Security number(s) of former State employees Tamara Cobbs and Tamoshanter D. Cobb,
as well as any other individually identifying information available for Tamara Cobbs and
Tamoshanter D. Cobb, such as employee numbers, and file this information with the Court.
The Missouri Attorney General’s Office will also be ordered to search its files and records,
including archives and litigation files, to determine what address it provided to the Court in camera
and under seal in June 2007 as the address of named defendant Tamara Cobbs.
The responses to this Order shall be verified by an appropriate individual, and shall describe
the steps that were taken to comply with it.
Accordingly,
IT IS HEREBY ORDERED that the Missouri Department of Corrections and the Missouri
Attorney General’s Office shall search their files and records, including any archives or litigation
files, and inquire if need be of the State of Missouri Office of Administration or other appropriate
resource, to obtain the Social Security numbers and any other personally identifying information,
such as employee numbers, of named defendant Tamara Cobbs and Tamoshanter D. Cobb.
IT IS FURTHER ORDERED that the Missouri Attorney General’s Office shall search its
files and records, including any archives or litigation files, to determine what address it provided to
the Court in camera and under seal in June 2007 as the address of named defendant Tamara Cobbs.
IT IS FURTHER ORDERED that the Missouri Department of Corrections and the
Missouri Attorney General’s Office shall redact from their responses to this Order address

6

information and any personal data identifiers, as required by Federal Rule of Civil Procedure 5.1,
and shall also file unredacted versions under seal.
IT IS FURTHER ORDERED that the Missouri Department of Corrections and the
Missouri Attorney General’s Office’s responses to this Order shall be verified by an appropriate
individual and shall describe the steps that were taken to comply with it.
IT IS FURTHER ORDERED that the Missouri Department of Corrections and the
Missouri Attorney General’s Office shall file their responses to this Order by April 24, 2017.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of March, 2017.

7