Titus v. Stanton, County of et al

Filing 43

ORDER - The defendants' Motion to Determine Plaintiff's Objections to Defendants' First Request for Admissions for Sufficiency (Filing No. 34 ) is granted. On or before September 9, 2013, the plaintiff shall serve amended responses to Request for Admission Nos. 1-3 and file a certificate of service as required by NECivR 36.1. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ASHLEY TITUS,
Plaintiff,

8:12CV261

vs.
ORDER
STANTON COUNTY, NEBRASKA,
and MICHAEL UNGER, Individually
and as Stanton County Sheriff,
Defendants.
This matter is before the court on the defendants’ Motion to Determine Plaintiff’s
Objections to Defendants’ First Request for Admissions for Sufficiency (Filing No. 34).
The defendants filed a brief (Filing No. 36) and an index of evidence (Filing No. 35) in
support of the motion. The plaintiff filed a Resistance1 (Filing No. 37), a brief (Filing No.
39), and an index of evidence (Filing No. 41) in opposition to the motion.

The

defendants filed a brief (Filing No. 42) in reply.

BACKGROUND
This case arises from the August 29, 2010, injuries the plaintiff sustained after
she was “ejected” from the back door of a patrol car while Stanton County, Nebraska,
Sheriff Michael Unger (Sheriff Unger) was driving between 50 and 60 miles per hour.
See Filing No. 8 - Amended Complaint. In the Amended Complaint, the plaintiff alleges
the following facts. On August 29, 2010, the Stanton County Sheriff’s Office (SCSO)
received a report people were trespassing in or around an abandoned farm house. Id.
¶ 8. Sheriff Unger, who was dressed in plain clothes without a badge, but driving a
patrol car, responded to the report and found the plaintiff walking down a gravel road.
Id. ¶¶ 9-12. Sheriff Unger informed the plaintiff she was under arrest, handcuffed her,
and placed her in the back seat of the patrol vehicle. Id. ¶¶ 13-15. While Sheriff Unger
drove the patrol vehicle on Highway 57 at a speed between 50 and 60 miles per hour

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The Civil Rules of the United States District Court for the District of Nebraska Rule 7.1 prohibits the filing
of a “resistance,” providing only for a brief filed in response to another party’s motion. NECivR
7.1(b)(1)(A).

transporting the plaintiff to the SCSO, “the back door of the patrol car opened and
Plaintiff was ejected.” Id. ¶¶ 16-17. The plaintiff suffered significant injuries. Id. ¶ 18.
Based on these allegations, the plaintiff alleges the defendants violated her civil rights
under 42 U.S.C. § 1983.2 Id. Specifically, the plaintiff alleges, in Count I, Stanton
County had an unlawful policy, custom, or habit of failing to engage the rear door
locking mechanisms while transporting an arrestee and acting with deliberate
indifference to the safety of the arrestee. Id. at 4-5. The plaintiff also alleges, in Count
II, her injury was caused by the defendants’ negligence. Id. at 6. Finally, the plaintiff
alleges, in Count VI, Stanton County negligently trained and supervised Sheriff Unger,
causing the plaintiff’s injuries. Id. at 9-10.
The defendants now seek an order requiring the plaintiff to admit Request for
Admission Nos. 1, 2, and 3, or serve amended answers to the requests. See Filing No.
36 - Brief p. 9. The requests for admission are as follows:
Request for Admission No. 1: Admit that attached hereto as
Exhibit 1 is a genuine copy of the original Complaint filed
with the United States District Court on July 31, 2012,
including attachments “Exhibits A and B.”
Request for Admission No. 2: Admit that the attached
Complaint, including attached “Exhibits A and B” contained
factual allegations in “Exhibit A” that your attorney Daniel B.
Shuck represented to the Defendant County and its
representatives as being true.
Request for Admission No. 3: Admit that prior to your
attorney Daniel B. Shuck’s letter of June 3, 2011, to the
Defendant County and its representatives, he, on your
behalf, investigated matters contained within “Exhibit A” by
reviewing reports of the underlying incident, including
Defendant Unger’s testimony given in your criminal case by
him on December 2, 2011 in the County Court of Stanton
County in case No. CR10-125 State v. Ashley Titus.
See Filing No. 35 Ex. 1 - Plaintiff’s Objections and Responses to Defendants’ First
Request for Admissions. Exhibit A to the July 31, 2012, Complaint is a June 3, 2011,
“Notice of Claim Pursuant to Neb. Rev. Stat. § 13-910.” See Filing No. 1 - Ex. A.
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On April 22, 2013, the court dismissed the plaintiff’s claims for false arrest and false imprisonment
(Count III), deliberate indifference in failing to provide necessary medical care (Count IV), and excessive
force (Count V). See Filing No. 20.
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Exhibit A contains a factual recitation, which had been incorporated, in part, into the July
31, 2012, Complaint.

See Filing No. 1 - Complaint.

Exhibit A and the Amended

Complaint are based on the same facts, however Exhibit A’s factual recitation contains
a greater number of details such as whether Sheriff Unger noticed the patrol car door
had come open and manually locked it while the car was parked. Compare Filing No. 8
- Amended Complaint with Filing No. 1 - Ex. A and Filing No. 1 - Complaint.
The plaintiff responded to each request without admitting or denying the request.
See Filing No. 35 Ex. 1 - Plaintiff’s Objections and Responses to Defendants’ First
Request for Admissions. The plaintiff responded to Request for Admission Nos. 1 and 2
by stating,
OBJECTION: Plaintiff cannot admit, or deny, this Request
for Admission. It is well-established law that an amended
complaint supersedes the previous complaint, and deprives
the prior complaint of any legal effect. In re Atlas Van
Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000), citing
Washer v. Bullitt County, 110 U.S. 558, 562, 4 S. Ct. 249,
28 L. Ed. 249 (1884). Therefore, it is inappropriate for
Defendants to ask Plaintiff to admit to any information
contained in a Complaint which has been rendered moot.
Id.
The plaintiff responded to Request for Admission No. 3 by stating, “Plaintiff
cannot admit, or deny, this Request for Admission. Defendant is asking Plaintiff to
admit, or deny, information that would be considered the work product of Plaintiff’s
attorney, and protected by attorney-client privilege.” Id.

ANALYSIS
Federal Rule of Civil Procedure 36(a) provides:
(4) Answer. If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party
cannot truthfully admit or deny it. A denial must fairly
respond to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part of
a matter, the answer must specify the part admitted and
qualify or deny the rest. The answering party may assert
lack of knowledge or information as a reason for failing to
admit or deny only if the party states that it has made

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reasonable inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must
be stated. A party must not object solely on the ground that
the request presents a genuine issue for trial.
Fed. R. Civ. P. 36(a)(4)-(5). “Rule 36 provides that a party, within the permissible scope
of discovery under the rules of civil procedure, may serve on any other party a written
request to admit the truth of any matters relating to, inter alia, facts or the application of
law to fact.” Quasius v. Schwan Food Co., 596 F.3d 947, 950 (8th Cir. 2010). “The
quintessential function of Requests for Admissions is to allow the narrowing of issues, to
permit facilitation in presenting cases to the factfinder and, at a minimum, to provide
notification as to those facts, or opinions, that remain in dispute.” Xcel Energy, Inc. v.
United States, 237 F.R.D. 416, 420-21 (D. Minn. 2006); see also Fed. R. Civ. P. 36
advisory committee’s note (1970 amend.) (“Rule 36 serves two vital purposes, both of
which are designed to reduce trial time. Admissions are sought, first to facilitate proof
with respect to issues that cannot be eliminated from the case, and secondly, to narrow
the issues by eliminating those that can be.”). “The purpose of a request for admissions
generally is not to discover additional information concerning the subject of the request,
but to force the opposing party to formally admit the truth of certain facts, thus allowing
the requesting party to avoid potential problems of proof.” Layne Christensen Co. v.
Purolite Co., No. 09-2381, 2011 WL 381611, at *4 (D. Kan. Jan. 25, 2011).
“The court has substantial discretion to determine the propriety of such requests
and the sufficiency of responses.”

See Audiotext Comms. Network, Inc. v. US

Telecom, Inc., No. 94-2395, 1995 WL 625744, at *1 (D. Kan. Oct. 5, 1995). If the
courts determine “an answer does not comply with the requirements of Rule 36, they
can order either that the matter is admitted or require the responding party to serve an
amended answer.” O’Connor v. AM Gen. Corp., No. 85-6679, 1992 WL 382366, at *2
(E.D. Pa. Dec. 7, 1992); see also Fed. R. Civ. P. 36(a)(6) (“On finding that an answer
does not comply with this rule, the court may order either that the matter is admitted or
that an amended answer be served.”). “The conclusive effect envisioned by the rule
may not be appropriate where requests for admissions or the responses to them are
subject to more than one interpretation.” Rolscreen Co. v. Pella Prods. of St. Louis,
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Inc., 64 F.3d 1202, 1210 (8th Cir. 1994). “When passing on a motion to determine the
sufficiency of answers or objections, the court obviously must consider the phraseology
of the requests as carefully as that of the answers or objections.” Audiotext, 1995 WL
625744, at *2. “The requesting party bears the burden of setting forth in necessary, but
succinct, detail, the facts, events or communications to which admission is sought. . . .”
Id. “[A] requesting party should not state ‘half of [a] fact’ or ‘half truths’ which require the
answering party to qualify responses.” Havenfield Corp. v. H & R Block, Inc., 67
F.R.D. 93, 96-97 (W.D. Mo. 1973) (citations omitted).

Further, “[r]egardless of the

subject matter of the Rule 36 request, the statement of the fact itself should be in simple
and concise terms in order that it can be denied or admitted with an absolute minimum
of explanation or qualification.” Id. at 96.
The plaintiff responded to Request for Admission Nos. 1-3 by stating she could
not admit or deny each request. See Filing No. 35 Ex. 1 - Plaintiff’s Objections and
Responses to Defendants’ First Request for Admissions.

The plaintiff argues “it is

inappropriate for Defendants to ask Plaintiff to admit to any information contained in a
Complaint which has been rendered moot.” Id.; see Filing No. 39 - Brief p.
The defendants argue the plaintiff attempted to “sanitize” her complaint by
amending it to take out facts which may detract from her claim based on deliberate
indifference to her safety and bolster Sheriff Unger’s assertion he is entitled to qualified
immunity. See Filing No. 36 - Brief p. 6. The defendants contend the plaintiff’s Notice
of Claim (Exhibit A) and the July 31, 2012, Complaint should be considered “ordinary
evidentiary” admissions against her at some later point in this litigation. Id. at 6-7; Filing
No. 42 - Reply p. 2. The issue of whether the defendant may later use the content of
the July 31, 2012, Complaint and its attachments against the plaintiff is not before the
court at this time.
The plaintiff’s objections to the requests are insufficient to preclude supplemental
responses.

Request for Admission No. 1 does not seek admission of any facts

contained in the document or attachments, it merely seeks the admission that the
document is, in fact, the document, with attachments, filed by the plaintiff. Similarly,
Request for Admission No. 2 seeks an admission the July 31, 2012, Complaint and its
attachments “contained factual allegations” that the plaintiff’s attorney represented to
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the defendant were true. The plaintiff’s only objection to the requests is related to the
legal effect of filing an amended complaint. There is no dispute an amended pleading
“supersedes the original pleading in all respects.” See NECivR 15.1. The document,
however, may have legal significance other than being an operative pleading in the
case. See Sunkyong Int’l, Inc. v. Anderson Land & Livestock Co., 828 F.2d 1245,
1249 n.3 (8th Cir. 1987) (“A pleading abandoned or superseded through amendment no
longer serves any function in the case, but may be introduced into evidence as the
admission of a party.”). Moreover, the Eighth Circuit has “recognized that documents
attached to a superseded original complaint are part of the record before the district
court.” See Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 592 n.3 (8th
Cir. 2011). The plaintiff’s objection does not provide a legal basis shielding the plaintiff
from admitting or denying Request for Admission Nos. 1 and 2.
The plaintiff does not address her objection to Request for Admission No. 3.
See, e.g., Filing No. 39 - Response p. 5. In any event, the court finds the plaintiff fails to
show how a response to Request for Admission No. 3 would be considered the work
product of plaintiff’s attorney or protected by attorney-client privilege.

IT IS ORDERED:
The defendants’ Motion to Determine Plaintiff’s Objections to Defendants’ First
Request for Admissions for Sufficiency (Filing No. 34) is granted.

On or before

September 9, 2013, the plaintiff shall serve amended responses to Request for
Admission Nos. 1-3 and file a certificate of service as required by NECivR 36.1.
Dated this 27th day of August, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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