McGuire v. Cooper et al

Filing 71

ORDER granting in part and denying in part the plaintiff's Motion to Compel 57 and denying the plaintiff's second Motion to Compel 61 . Douglas County shall have until January 25, 2017, to supplement production in response to McGuire's request for in-car video system violation complaints. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEGAN MCGUIRE,
Plaintiff,

8:16CV04

vs.
ORDER
CORY COOPER,
TIMOTHY F. DUNNING, individually
and in his official capacity as
Sheriff of Douglas County, Nebraska,
and DOUGLAS COUNTY,
Defendants.
This matter is before the court on Megan McGuire’s (McGuire) Motion to Compel
Complaint Documents (Filing No. 57) and Second Motion to Compel Complaint
Documents (Filing No. 61). McGuire seeks to compel discovery regarding complaints of
sexual misconduct against law enforcement officers; improper use of in-car video
systems; improper searches and seizures; and improper physical contact. McGuire
filed indexes of evidence attached to the motions. Timothy F. Dunning, individually and
in his official capacity as Sheriff of Douglas County, Nebraska, and Douglas County
(collectively Douglas County) filed briefs (Filing Nos. 62 and 65) and indexes of
evidence (Filing Nos. 63 and 66) opposing the motions. McGuire filed briefs (Filing Nos.
64 and 69) and additional evidence either attached (Filing No. 64) or as a separate
index (Filing No. 70). Cory Cooper (Cooper) did not participate in briefing.

BACKGROUND
On February 10, 2013, then Douglas County Sheriff’s Office (DCSO) Deputy
Cooper sexually assaulted McGuire after placing her in the backseat of his patrol
cruiser, which was parked at Zorinsky Lake Park. See Filing No. 1 - Complaint ¶¶ 8-26.
Subsequently the DCSO and Omaha Police Department investigated the assault. Id. ¶
29. McGuire alleges Cooper falsified police reports regarding his location; however, the
patrol cruiser’s GPS system confirmed he was at the park. Id. ¶ 30. On June 10, 2013,
Cooper was charged with first-degree sexual assault and attempted tampering with
evidence. Id. ¶ 32. On April 17, 2014, Cooper pleaded no contest to third degree

assault and was sentenced to six months in jail. Id. ¶ 30. Based on the assault and
surrounding events, McGuire filed this lawsuit, pursuant to 42 U.S.C. § 1983, alleging
the defendants violated her constitutional rights. Id. at 1. Specifically, McGuire alleges
four claims for relief.

First, McGuire asserts the defendants violated her Fourth

Amendment right to be free from unreasonable search and seizure with malice,
willfulness, and reckless indifference pursuant to DCSO policies or practices, including
failure to adequately train, supervise, and control officers, and failure to adequately
investigate, punish, and discipline prior instances of unconstitutional misconduct against
citizens. Id. at 5-6. Second, McGuire alleges the defendants, motivated by gender
animus, denied her equal protection of the law, causing her emotional distress and
anguish. Id. at 6-7. Third, McGuire alleges the defendants abridged her right to due
process by engaging in arbitrary government action depriving her of her liberty in a
manner so malfeasant as to shock the conscience. Id. 7-8. Finally, McGuire seeks
indemnification from Douglas County for any compensatory damages award against
Cooper under Nebraska law.

Id. at 8.

After their motion to dismiss was denied,

Douglas County filed an answer denying liability for McGuire’s claims. See Filing No.
30 - Answer.
McGuire seeks discovery from Douglas County regarding complaints of law
enforcement officers’ (1) improper use of in-car video systems; (2) improper searches
and seizures; (3) improper physical contact; and (4) sexual misconduct, including
misconduct by corrections officers. See Filing Nos. 57 and 61. McGuire contends
Douglas County’s responses to these types of complaints relates to her constitutional
claims stemming from policies and practices resulting in systemic failures in officer
training and supervision leading Cooper to abuse his power to assault her. See Filing
No. 16 p. 1. More specifically, McGuire alleges that although Douglas County’s written
policy required male officers to use in-car video systems during stops involving female
detainees, the evidence suggests no supervisor enforced the policy and Cooper
violated the policy when he assaulted McGuire and another woman, in separate
incidents. See Filing No. 57 - Motion p. 3. Similarly, McGuire states she has a “strong
suspicion” Douglas County was on “clear notice that its officers had a pattern of
violating constitutional rights, yet created a system to shield those officers from
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accountability.” Id. at 5. In support, McGuire asserts the evidence disclosed to date
indicates Cooper snuck up on people in parked cars in public parks, sometimes
resulting in searches. Id. Cooper was commended for this conduct, which he thought
was appropriate an acceptable. Id.
Douglas County denies the discovery requests are relevant and argues the
requests are overly broad and unduly burdensome. See Filing No. 62 - Response p. 5,
7, and 12; Filing No. 65 - Second Response p. 10. Additionally, Douglas County argues
the request for complaints of improper physical contact is vague and ambiguous. See
Filing No. 62 - Response p. 12.

Douglas County agrees evidence of a pattern of

sexually assaultive misconduct amongst Sheriff Dunning’s subordinates is relevant;
Douglas County resists production of documents for personnel not subordinate to
Sheriff Dunning or constitutional conduct dissimilar to that alleged in the complaint. See
Filing No. 62 - Response p. 14; Filing No. 65 - Second Response p. 10.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1). “Broad discovery is an important tool for the litigant, and so ‘[r]elevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.’” WWP, Inc. v. Wounded
Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011) (alteration in
original) (quoting Fed. R. Civ. P. 26(b)(1)). Accordingly, relevant information includes
“any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978); see Fed. R. Civ. P. 26(c)(1). Mere speculation that information
might be useful will not suffice; litigants seeking to compel discovery must describe with
a reasonable degree of specificity the information they hope to obtain and its
importance to their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.
1972). Once the requesting party meets the threshold relevance burden, generally “[a]ll
discovery requests are a burden on the party who must respond thereto. Unless the
task of producing or answering is unusual, undue or extraordinary, the general rule
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requires the entity answering or producing the documents to bear that burden.”
Continental Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85
(D. Kan. 1991) (citation omitted). The court has authority to limit the scope of discovery.
Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).

A.

In-Car Video System Complaints
McGuire seeks:
all documents that relate in any way to any complaint,
charge, accusation, disciplinary proceeding by any
supervisor at DCSO, from 2008 to 2013 that an officer,
supervisor, or other employee of the DCSO improperly used
any in-car video system, failed to use any in-car video
system, or failed to save video evidence from any in-car
video system.

See Filing No. 57 - Ex. 1 Request for Production (Second Set) No. 2.
McGuire contends Cooper’s modus operandi of stopping women without using
his in-car video system supports her request. See Filing No. 57 - Motion p. 3. Further,
McGuire argues the discovery is relevant to whether Douglas County had notice of the
officer’s noncompliance with departmental policy of using the cameras and taking
meaningful steps to train, supervise, and discipline officers regarding such ill-use. Id.
Finally, McGuire argues Douglas County’s practice of allowing the ill-use “caused . . .
Cooper to believe he could get away with not using the in-car video and with sexually
assaulting Plaintiff in his police vehicle.” Id. at 4.
Douglas County seeks to limit the requests to sexual misconduct. See Filing No.
62 - Response p. 5-6. Douglas County argues failure to use an in-car video system
does not, by itself, constitute a constitutional violation and would not provide notice of
sexually abusive conduct.

Id. at 6.

Further Douglas County states, “there is no

indication whatsoever that other alleged incidents involved any claim of sexual
misconduct or other unconstitutional misconduct.” Id. at 7. Douglas County relies on
the reasoning in S.M. v. Krigbaum, 808 F.3d 335 (8th Cir. 2015).
In Krigbaum, a county sheriff’s department lieutenant sexually assaulted female
drug court participants. S.M. v. Krigbaum, 808 F.3d 335 (8th Cir. 2015). The Eighth
Circuit Court of Appeals reversed a lower court’s decision denying the sheriff qualified
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immunity for failure to supervise and determined the sheriff lacked notice of a pattern of
unconstitutional conduct when the only evidence was the lieutenant took the drug court
participants out of jail to smoke cigarettes. Id. at 341. The Krigbaum court held smoke
breaks, a jail policy violation, were not portentous indications giving rise to actual notice
of substantive due process violations. Id. The sexual assaults had no connection
whatsoever with the smoking, rather the assaults occurred when the lieutenant
transported the participants as part of other duties. Id. at 338-39. Douglas County’s
reliance on Krigbaum is misplaced.
A plaintiff “must prove [the official] personally knew of the constitutional risk
posed by [his] inadequate training or supervision. . .” Walton v. Dawson, 752 F.3d
1109, 1116 (8th Cir. 2014). Further, “an ‘official must both be aware of facts from which
the inference could be drawn that a substantial risk of [unconstitutional] harm exists,
and he must also draw the inference.’” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Unlike the arguably benign policy violation in Krigbaum, the Eighth Circuit has found
other policy violations to support official liability.

In Walton, the Eighth Circuit

determined failure to lock jail cell doors at night, a policy violation, created an obvious
and known risk of harm to inmates. Walton, 752 F.3d at 1120. The Walton court noted
there were a multitude of options left open to the officials in terms of what policies to
adopt; however, they could not create an unconstitutional safety risk to detainees. Id.
Neither Walton nor Krigbaum addressed discovery limitations, nevertheless
they assist the court in defining the boundaries for relevant discovery.

Relevant

discovery for purposes of McGuire’s action need not be limited to Douglas County’s
narrow interpretation or determination “there is no indication whatsoever that other
alleged incidents involved any claim of sexual misconduct or other unconstitutional
misconduct.” See Filing No. 62 - Response p. 7. The discovery process allows the
parties equal access to any nonprivileged matter that is relevant, not necessarily
admissible, to any party’s claim or defense and proportional to the needs of the case.
This is particularly important where discovery appears reasonably calculated to lead to
the discovery of admissible evidence. Under the circumstances present and McGuire’s
allegations, the court finds complaints regarding in-car video system violations are
relevant. This type of policy violation aligns more closely to the violations in Walton
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than Krigbaum. Like the events in Walton, the type of harm to be avoided by enacting
the policy occurred when individuals evaded the policy. Whether additional DCSO incar video system violations ultimately indicate Douglas County knew the policy created
a substantial risk of unconstitutional harm need not be determined at this time. McGuire
has met her burden of describing with a reasonable degree of specificity the information
she hopes to obtain from the in-car video system policies violations and its importance
to her case. Douglas County fails to substantiate its objections.
By contrast, McGuire’s requests for all documents relating to any complaint
against DSCO based on allegations of improper search, seizure, and improper physical
contact are overly broad. McGuire fails to suggest how such imprecise categories of
documents are meaningfully relevant to any party’s claim or defense and proportional to
the needs of the case. Douglas County states it has provided all such complaints with
“any sort of sexual element,” that is “complaints of improper contact of a sexual nature,
whether verbal or physical.” See Filing No. 62 - Response p. 12, 13. Accordingly, the
court finds Douglas County need not supplement its discovery responses to include
production of the overly broad categories of documents sought by McGuire.

B.

Production Regarding Corrections Officers
McGuire seeks production of citizen complaints of improper sexual contact by

any Douglas County employee who had the ability to exercise government power over
citizens. See Filing No. 61 - Second Motion p. 2. McGuire contends Douglas County’s
constriction of the request to the Douglas County Sheriff’s Office is unduly narrow. Id.
at 3. McGuire argues the request is appropriately tailored to prove policy or custom
liability for several reasons. Id. First, McGuire asserts the corrections officers and
deputy sheriffs receive the same training about sexual harassment, which, if it results in
an abuse of power leading to sexual misconduct, is relevant to Douglas County’s
potential liability.

Id.

Second, McGuire notes Cooper previously worked as a

corrections officer “giving him knowledge that employees could abuse law enforcement
authority without fear of supervision based on Defendant Douglas County’s practices
and customs.” Id. McGuire suspects the evidence would show the common sexual
harassment training was inadequate at both locations to deter abuse of power and
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sexual misconduct occurred, providing notice to Douglas County. Id. Third, McGuire
suggests the DCSO would have been on notice of sexual misconduct by virtue of its
officers investigating complaints and direct communication between policymakers at the
Department of Corrections. Id. at 4. Finally, McGuire argues corrections officers are
“similarly situated employees” because, like deputy sheriffs, they are empowered to
compel citizen compliance. Id.
McGuire fails to show complaints of improper sexual contact by corrections
officers appears reasonably calculated to lead to the discovery of admissible evidence.
The Douglas County Sheriff has no authority to make employment-related decisions for
the Douglas County Department of Corrections (DCDC). See Filing No. 66 - Ex. 2
Dunning Aff. ¶¶ 9-15. DCSO and DCDC do not share common policymakers. Id.
Although Cooper may have been a corrections officer, his prior employment or prior
employer’s policies have no bearing on Douglas County’s liability in this case.
McGuire’s request for production outside DSCO to include any Douglas County
employee is overly broad. Accordingly, McGuire’s Second Motion to Compel will be
denied.

IT IS ORDERED:
1.

Megan McGuire’s Motion to Compel Complaint Documents (Filing No. 57)

is granted, in part, and denied, in part. Douglas County shall have until January 25,
2017, to supplement production in response to McGuire’s request for in-car video
system violation complaints. The motion to compel is denied in all other respects.
2.

Megan McGuire’s Second Motion to Compel Complaint Documents (Filing

No. 61) is denied.
Dated this 30th day of December, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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