Johnson et al v. City of Fayetteville et al
ORDER denying 217 PROPOSED Sealed Motion; denying 223 Motion to Compel; granting in part and denying in part 250 Motion to Seal; denying 260 Motion to Seal Document ; denying 268 Motion to Seal; denying 268 Motion to Seal Document ; granting 270 Motion to Amend; granting in part and denying in part 271 Motion to Seal; accepting Report and Recommendations re 275 Memorandum and Recommendations; denying 282 Motion to Seal; denying 293 Motion to Seal; granting 308 Motion to Amend; granting in part 314 Motion to Amend. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 12/11/2014. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
DARWIN JOHNSON, et al.,
CITY OF FAYETTEVILLE; et al.,
This matter is before the court on several motions: Defendant Heather St. John’s Motion for
Partial Summary Judgment [DE-208]; Plaintiffs’ Motions to Seal [DE-217; DE-268; DE-282];
Plaintiff Darwin Johnson’s Fourth Motion to Compel [DE-223]; Plaintiffs’ Motion for Partial
Summary Judgment [DE-238]; Motion for Summary Judgment [DE-240] filed by Defendants Chief
Thomas Bergamine, the City of Fayetteville, Kevin Croyle, Dale Iman, Phyllis Jernigan, Shane
Koehler, and Jennifer Rodriguez (collectively, the “City Defendants”); the City Defendants’
Motions to Seal [DE-250; DE-260; DE-271; DE-293]; Plaintiffs’ Motions to Amend/Correct [DE270; DE-308]; and the Joint Motion to Amend the Scheduling Order and Continue the Trial [DE314.. Additionally, pending before this court are the Memorandum and Recommendations (“M&R”)
[DE-275] recommending that Plaintiffs’ Fourth Motion to Compel be denied, and Plaintiffs’
Objection [DE-295]1 to the M&R. Also pending before the court is the Plaintiffs’ Appeal [DE-296]
of Judge Jones’s October 6, 2014, Order [DE-276] allowing certain motions to seal [DE-224; DE230] filed by the parties.
I. RELEVANT PROCEDURAL HISTORY
On June 7, 2012, Plaintiffs Darwin Johnson, LaTonja Johnson, and Brenda Johnson Mathis
The Objection is captioned “Plaintiffs’ Objections and Appeal from the Magistrate Judge’s October 6, 2014,
Order.” The M&R is not an order, however, and there is nothing to “appeal” to the undersigned.
initiated this action by filing a Complaint in the General Court of Justice, Superior Court Division,
Cumberland County, State of North Carolina. The action was removed to this court on July 20,
2012. On September 5, 2012, Plaintiffs filed the Amended Complaint [DE-30], containing several
causes of action arising under 42 U.S.C. § 1983 and § 1985, the North Carolina Constitution and
state tort law, and naming the following as defendants: (1) City of Fayetteville; (2) Heather Nicole
St. John; (3) Shane Koheler, individually; (4) Jennifer Rodriguez, individually; (5) Phyllis Jernigan,
individually; (6) Chief Thomas Bergamine, in his official capacity as Chief of FCPD and
individually, and (7) Dale Iman, in his official capacity as City Manager and individually.
In a March 28, 2013, Order [DE-129], the undersigned ruled on pending motions to dismiss,
resulting in the following claims remaining in this action:
Defendant St. John: Plaintiff Darwin Johnson § 1985 claim for civil conspiracy.
Plaintiff Mathis’ § 1985 claim for civil conspiracy. Plaintiff LaTonja Johnson’s
claim for negligence.
Defendant Koehler in his Individual Capacity: Plaintiff Darwin Johnson’s (1) §
1983 claims for false arrest (unreasonable seizure), excessive force, and malicious
prosecution; (2) § 1985 claim for civil conspiracy; and (3) state law claims of IIED,
assault and battery, and false imprisonment. Plaintiff Mathis’ (1) § 1983 claim of
excessive force; (2) § 1985 claim for civil conspiracy; and (3) state law claim for
assault and battery.
Defendant Rodriguez in her Individual Capacity: Plaintiff Darwin Johnson’s §
1985 claim for civil conspiracy. Plaintiff Mathis’ § 1985 claim for civil conspiracy.
Defendant City of Fayetteville: Plaintiffs Darwin Johnson and Mathis’ state law
claim of negligent hiring, retention, supervision, training, and discipline.
Defendant City of Fayetteville, and Defendants Bergamine and Iman in their
Individual Capacity: Plaintiffs Darwin Johnson and Mathis’ municipal and
supervisor derivative § 1983 and § 1985 claims based on these remaining predicate
claims asserted against Defendant Koehler due to their negligent hiring of and failure
to train Defendant Koehler, as well as Plaintiffs Darwin Johnson and Mathis’
municipal and supervisor derivative § 1983 and § 1985 claims based on these
remaining predicate claims asserted against Defendants Koehler and Rodriguez due
to the institution and maintenance of a widespread discriminatory policy.
March 28, 2013 Order [DE-129] at 37.
Thereafter, Judge Jones issued an order [DE-144] on two motions to compel [DE-84; DE112] filed by Plaintiff Darwin Johnson. One of the motions to compel had sought the discovery of
psychological evaluations of Defendant Koehler, who had been diagnosed with post-traumatic stress
disorder (“PTSD”). Plaintiffs sought to discover what extent Koehler’s supervisors knew of his
mental condition. Judge Jones ruled (1) that the requested documents were relevant to the Plaintiffs’
surviving claim of negligent hiring/retention/supervision and in particular, to the issue of notice to
Koehler’s employer; and (2) that documents corresponding to a time period after April 17, 2011, the
date of the incident alleged in the complaint, were beyond the scope of reasonably calculated
discovery. Plaintiffs appealed this and other rulings. The undersigned sustained Judge Jones’ ruling
as to the psychological records, stating: “Plaintiffs do not need any psychological evaluations of
Defendant Koehler prepared after April 17, 2011 in order to gather evidence regarding his
supervisors’ actions in light of [their] knowledge.” August 5, 2013, Order [DE-155] at 14.
On December 5, 2013, Plaintiffs filed a Motion for Leave to File Second Amended
Complaint, and later filed a corrected Motion for Leave to File Second Amended Complaint [DE165] on December 9, 2013. Plaintiffs sought leave, under Federal Rule of Civil Procedure 15(a)(2),
to make the following substantive changes to their pleadings:
(1) The proposed amendment to the Second Complaint seeks to add Lt. Kevin Croyle
of the Fayetteville City Police Department as a party Defendant.
(2) In addition, the proposed amendment to the Complaint seeks to add  new
Monell allegations that Proposed Defendants City of Fayetteville, Sgt. Phyllis
Jernigan and Lt. Kevin Croyle concealed/fabricated evidence during the internal
investigation of the arrest of Plaintiff Darwin Johnson.
(3) The proposed Second Amended Complaint also seeks to join the Defendants Sgt.
Phyllis Jernigan and Lt. Kevin Croyle in the following claims:
(a) conspiracy, (Sec. Am. Comp. ¶¶ 145-169), and
(b) Fourth Amendment Illegal Seizure  (Malicious Prosecution) (Sec. Am.
Comp. ¶¶ 137-144)
Mem. in Support of Mot. for Leave [DE-165-2] at 2-3. The City Defendants opposed the motion,
arguing, inter alia, that Plaintiffs were seeking to assert claims already dismissed by the court.
Specifically, the City Defendants noted that Plaintiffs were attempting to assert a § 1983 false arrest
claim against Defendants Rodriguez, Jernigan, and Croyle that already had been dismissed as to all
defendants with the exception of Defendant Koehler.
In an order filed on April 1, 2014 [DE-191], the court allowed Plaintiffs’ motion in part and
denied it in part. The court explicitly stated that Plaintiffs’ attempts to assert a § 1983 false arrest
claim against Defendants Rodriguez, Jernigan, and Croyle were futile. The court ordered Plaintiffs
to file a second amended complaint which complied with the rulings set forth in the order within
seven days. Order [DE-191] at 6. Plaintiffs filed a Second Amended Complaint on April 6, 2014
[DE-192]. One day later, Plaintiffs filed a Corrected Second Amended Complaint [DE-195].
On April 14, 2014, the City Defendants filed the Partial Motion to Dismiss [DE-199] along
with their Answer [DE-201] to the Corrected Second Amended Complaint. The City Defendants
argued, inter alia, that Plaintiffs alleged many claims that already have been dismissed by the court,
as well as claims explicitly not allowed by the court’s earlier orders. The court allowed the City
Defendants’ motion in part, and ordered that several claims be dismissed. See June 19, 2014 Order
While the motion to amend and the motion to dismiss was pending, Plaintiff Darwin Johnson
filed a Third Motion to Compel [DE-170] and an Amended Third Motion to Compel [DE-174],
arguing, inter alia, that psychological evaluations of Defendant Koehler performed after April 17,
2011, were relevant. Specifically, Plaintiff sought a report by Dr. William Presley Keeton, III, whom
Plaintiffs learned performed a fitness for duty examination (“FFDE”) of Defendant Koehler in
August 2011. Judge Jones construed the Third Motion to Compel as a motion to reconsider the
undersigned’s August 6, 2013, Order, and he held a telephonic hearing on the motion. Thereafter,
Judge Jones issued an Order and M&R, recommending the undersigned reconsider the August 6,
2013, Order [DE-155], and direct Defendants to produce within 14 days Dr. Keeton’s FFDE report.
Additionally, Judge Jones recommended that the court reopen the deposition of Dr. Keeton for
examination regarding the report. See June 25, 2014, Order and M&R [DE-216] at 9. Judge Jones
found that “[b]ased on the newly amended complaint, Defendant Koehler’s PTSD condition has
relevance beyond its notice [to] Defendants” and “Plaintiffs now allege Defendants concealed it
from the internal investigation of the April 17, 2011 incident.” Id. at 8. Accordingly, Judge Jones
found that “whether Dr. Keeton included this information in his FFDE report to Defendant City is
arguably relevant to Plaintiff’s new claims that Defendants omitted Koehler’s PTSD from the
internal investigation surrounding the April 17, 2011 incident.” Id. Judge Jones noted, however that
“Plaintiffs’ motions otherwise fail to particularize further discovery sought and, in light of the high
standard of review applied to the court’s reconsideration of previous orders, it is otherwise
recommended that any further reconsideration be denied.” Id. at 9.
Neither party filed any objection to the June 25, 2014, M&R. On July 29, 2014, the
undersigned adopted [DE-222] the M&R, and ordered Defendants to produce Dr. Keeton’s FFDE
of Defendant Koehler. July 29, 2014 Order. The undersigned also ordered that the deposition of Dr.
Keeton be reopened for examination regarding the FFDE report; however, Plaintiffs’ motions to
compel were denied in all other respects. Id.
Shortly thereafter Plaintiffs filed a Fourth Motion to Compel [DE-223]. In that motion,
Plaintiffs state Defendants produced Dr. Keeton’s FFDE report as required. According to Plaintiffs:
This report indicated that Dr. Keeton administered the Personality Assessment
Inventory (PAI), the Achenbach Adult Self-Report (ASR) and the PTSD Checklist,
Military version (PCL-M). In addition, this letter from Keeton states that Defendant
Koehler “provided copies of his medical records from his recent treatment for PTSD
and ADHD at Carolina Psychiatry in Fayetteville.” Furthermore, it was noted in the
letter from Dr. Keeton that the examination of Defendant [Koehler] was conducted
on August 24, 26, and 30, 2011.
Mem. in Support of Fourth Mot. to Compel [DE-223-1] at 4. Plaintiffs contend they were “not aware
of the tests that were administered by Dr. Keeton, that medical records were reviewed and that the
examination was conducted for three hours over a six day period.” Id. Plaintiffs seek an order
“compelling Defendants to produce all documentation/data relied upon by Dr. Keeton (including
his notes) in making his Fitness for Duty Determination of Defendant Koehler” and specifically “the
medical records and data from any assessments Dr. Keeton relied upon during the Fitness for Duty
Examination.” Id. at 8.
In connection with the briefing of the Fourth Motion to Compel, the parties filed motions
to seal [DE-224; DE-230]. During this time period, the parties also filed the various dispositive
motions, which also were accompanied by numerous motions to seal and motions to amend or
correct previously-filed documents.
On October 6, 2014, Judge Jones issued an M&R [DE-275] construing the Fourth Motion
to Compel as a motion to reconsider the court’s July 29, 2014, Order, and recommending that it be
denied. That same day, Judge Jones issued a separate Order [DE-276] allowing the parties’ motions
to seal certain documents filed in connection with the Fourth Motion to Compel. Plaintiffs
thereafter filed their Objections [DE-295] to the M&R and an Appeal [DE-296] of Order allowing
the motions to seal.
While the court was considering the parties’ various motions, the parties filed the joint
motion to continue the trial date in this matter.
II. FOURTH MOTION TO COMPEL
As the court has recounted, Plaintiffs filed the Fourth Motion to Compel [DE-223] seeking
“an order compelling Defendants to produce all documentation/data relied upon by Dr. Keeton
(including his notes) in making his Fitness for Duty Determination of Defendant Koehler.” Judge
Jones recommended that this motion be denied, and Plaintiffs have objected to this recommendation.
Specifically, Judge Jones construed the Fourth Motion to Compel as a motion to reconsider
the undersigned’s July 29, 2014, Order, which ordered Defendants to produce, within 14 days, Dr.
Keeton’s fitness for duty examination of Defendant Kohler, and also ordered that the deposition of
Dr. Keeton be reopened for examination regarding this report. The July 29, 2014 Order denied the
subject motions to compel in all other respects.
In the M&R, Judge Jones observed that Plaintiffs had
recharacterize[d] the relevance of Dr. Keeton’s FFDE report as threefold: (1)
whether Dr. Keeton was aware of Koehler’s PTSD, (2) whether Dr. Keeton was
negligent in clearing Koehler to return to duty and (3) whether Defendants were
indifferent to right of citizens to ensure that Koheler’s PTSD condition did not
interfere with his police duties. Plaintiff argues that these questions are relevant as
to what extent Defendants either concealed the existence of Defendant Koehler’s
PTSD condition or were negligent in addressing whether he was in fact fit to serve
in law enforcement.
M&R [DE-275] at 9. Judge Jones noted that the first question—whether Dr. Keeton was aware of
Koehler’s PTSD—had been answered by the FFDE report. Judge Jones also determined that
Plaintiff had long been aware of Dr. Keeton’s assessment of Koehler, and the fact that he only
recently arrived at the theory that Dr. Keeton’s assessment was incompetent was not a compelling
reason to revisit this court’s earlier order. Finally, Judge Jones reasoned:
[f]undamentally, however, questions concerning Dr. Keeton’s alleged negligence are
not relevant to the claims Plaintiff has asserted in this action. . . . Dr. Keeton is
neither a party nor an employee of Defendant City, and there . . . has been no claim
alleged based on his conduct during the FFDE of Koehler. Moreover, Plaintiff
provides no basis for his suggestion that the documents sought after April 17, 2011,
would have any bearing on Defendant City’s alleged indifference to the rights of its
citizens by failing to insure that Koehler’s PTSD condition did not interfere with his
duties as a police officer or how it would relate to Plaintiff’s claims.
Id. at 10.
Standard of Review
A district court may “designate a magistrate judge to submit . . . proposed findings of fact
and recommendations for the disposition of a variety of motions.” 28 U.S.C. § 636(b)(1)(B). The
court then must “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id. § 636(b)(1)(C). Upon review of the
record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
Plaintiffs argue that the M&R is incorrect in three ways: (1) it is error to construe the Fourth
Motion to Compel as a motion to reconsider; (2) it is error to conclude that the Fourth Motion to
Compel is not related to new issues that warrant reconsideration of the court’s order; and (3) it is
error to conclude that the evidence sought is not relevant. Even if the court assumes, without
deciding, that Plaintiffs are correct with respect to their first two arguments, the court nevertheless
finds that Plaintiffs have failed to show that the evidence that they seek are relevant to Plaintiffs’
Federal Rule of Civil Procedure provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . . For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and liberal
construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors, No. 2:98CV-62-BO, 2000 WL 33672798, at *4 (E.D.N.C. Sept. 27, 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance
has been “‘broadly construed to encompass any possibility that the information sought may be
relevant to the claim or defense of any party.’” EEOC v. Sheffield Fin. LLC, No. 1:06CV889, 2007
WL 1726560, at *3 (M.D.N.C. June 13, 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D.
467, 473 (N.D. Tex. 2005)). The district court has broad discretion in determining relevance for
discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party
resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.
Mainstreet Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 242 (E.D.N.C. 2010).
Defendants have shown that the information Plaintiffs seek are not relevant to any of the
claims asserted in this action. It bears repeating that Plaintiffs’ new theory is that “the standard
practice techniques employed by Dr. Keeton to evaluate employees are flawed,” and the City
Defendants’ liability stems from relying on Dr. Keeton’s assessment of Koehler. See Pls.’
Objections [DE-295] at 9; Mem. in Support of Fourth Mot. to Compel [DE-223-1] at 6. As
Defendants have made clear in their response to Plaintiff’s Objections, however, what Dr. Keeton
did or did not do in August 2011 has no relevance to Plaintiff’s claims. The City Defendants
received the FFDE regarding Koehler on November 11, 2011, which was several months after the
pertinent events giving rise to Plaintiff’s claims. See City Defs.’ Resp. to Pls.’ Objections [DE-300]
at 8 (“Because the FFDE report is dated after (a) the arrest of Darwin Johnson, (b) the close of the
investigation into the arrest, (c) the dismissal of the case against Darwin Johnson, and (d) the day
Koehler left the force, it simply cannot have any bearing on any of Plaintiffs’ claims. The same is
true for the data related to the FFDE report sought by Plaintiff’s Fourth Motion to Compel.”).
Plaintiffs assert that they seek “to show that Dr. Keeton employed the same techniques in
both the 2009 pre-screening of Defendant Koehler and at the 2011 fitness for duty evaluation.” Pls.’
Objections [DE-295] at 9. Their argument seemingly is that Dr. Keeton’s 2011 assessment had to
be flawed, because Defendant Koehler “attacked his wife immediately after Dr. Keeton deemed him
fit” and if the 2011 and 2009 assessment relied on similar techniques, the 2009 assessment must also
be deemed to flawed. Id. That Defendant Koehler slashed the tires of his wife’s car soon after the
conclusion of Dr. Keeton’s 2001 assessment, however, does not ipso facto mean that the 2011
assessment was flawed. Moreover, that fact has no bearing on whether the 2009 assessment, which
the parties’ briefing suggest is the relevant assessment–was flawed.
Judge Jones was correct in determining that the information sought by Plaintiff is not
relevant. Accordingly, the court accepts the M&R [DE-275], and the Fourth Motion to Compel
[DE-223] is DENIED.
IV. APPEAL AND MOTIONS TO SEAL
Plaintiffs have filed an Appeal [DE-296] of Judge Jones’ October 6, 2014, Order [DE-276]
which allowed cross motions to seal filed by Plaintiffs and the City Defendants. For their part,
Plaintiffs sought to seal Exhibit A to the Fourth Motion to Compel [DE-226], which consists of Dr.
Keeton’s November 11, 2011, letter detailing his FFDE of Defendant Koehler. The City Defendants
sought to seal their opposition [DE-227] to the Fourth Motion to Compel and supporting Exhibits
C and D [DE-229-1, DE-229-2], which contain Cumberland County court records of Plaintiff
Darwin Johnson and excerpts from Defendant Koehler’s deposition, respectively. Although
Plaintiffs did not respond to the City Defendants’ motion to seal these documents, they now argue
that Judge Jones erred in determining that Exhibit C and D should be sealed.
The parties also have filed numerous motions to seal other documents in this action.
Plaintiffs have filed motions seeking to seal: (1) the unredacted version of their Response in
Opposition to Defendant’ Motion Summary Judgment [DE-266-1];2 (2) the Fort Bragg Medical
Records of Darwin Johnson [DE-266-5]; (3) the Kuwait Medical Records of Darwin Johnson [DE266-6]; (4) documentation from Darwin Johnson’s personnel file [DE-266-7]; (5) the unredacted
version of the first deposition of Darwin Johnson [DE-266-2];3 (6) the second deposition of Darwin
Johnson [DE-266-3]; and (7) the first Declaration of James H. Locus, Jr., and Exhibit A thereto [DE279; DE-279-1]. Additionally, Plaintiffs filed a Motion to Seal [DE-217] asking the court to seal
their response [DE-219] in opposition to Defendant St. John’s Partial Motion for Summary
Judgment. Plaintiffs have since stated that they are “seeking to withdraw”4 that motion to seal, which
in turn, has prompted the City Defendants to file a motion [DE-271] of its own seeking, inter alia,
to seal the entirety of the documents Plaintiffs filed in opposition to Defendant St. John’s Partial
Motion for Summary Judgment.
Additionally, the City Defendants have filed motions seeking to seal: (1) the City
Defendants’ Memorandum of Law in Support of Motion for Summary Judgment [DE-241]; (2) the
Fifteenth Declaration of Christopher M. Thomas [DE-243] and Exhibits E, H, J, K, L, M, O, P, Q,
R, S, T, U, V, and X attached thereto; (3) The Sixteenth Declaration of Christopher M. Thomas [DE245] and all exhibits attached thereto; (4) the Second Declaration of Stacy Marie Smith [DE-248]
Plaintiffs have not filed a redacted version of the same, but indicate they seek to redact pages 28 through
32 of this document.
Plaintiffs have not filed a redacted version of this deposition, but indicate they seek to redact pages 122
through 188 of the deposition to be redacted.
Plaintiffs did not file a motion to withdraw their earlier motion, or even a notice of withdrawal. Instead,
Plaintiffs made this statement in their response [DE-262] in opposition to one of the City Defendants’ motions
and all exhibits thereto; (5) documents filed by Plaintiffs which have been marked “confidential”
by the parties [DE-236]; (6) City Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary
Judgment [DE-255]; (7) Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and C attached to the Seventeenth
Declaration of Christopher M. Thomas [DE-258; DE-259]; (8) City Defendants’ Objections to
Assertions of Fact Not Supported by Admissible Evidence in Plaintiffs’ Memorandum in Support
of Plaintiffs’ Motion for Partial Summary Judgment [DE-253]; (9) Exhibits S, T, U, V, W, X, Y, Z,
AA, BB, CC, DD, EE, FF, GG, II, JJ, and KK [DE-263; DE-265] attached to Plaintiffs’ response
to City Defendants’ Motion for Summary Judgment; (10) City Defendants’ Reply in support of their
motion for summary judgment [DE-289]; (11) Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 [DE-]
attached to the Nineteenth Declaration of Christopher M. Thomas; and (12) City Defendants’
Objections to Assertions of Fact Not Supported by Admissible Evidence in Plaintiffs’ Memorandum
in Opposition to the City Defendants’ Motion for Summary Judgment [DE-287].
The various motions to seal, any opposition thereto, and Plaintiffs’ Appeal of Judge Jones’
October 6, 2014, Order, all concern whether the nature of various documents allow the court to seal
virtually all of the memoranda in support of the parties’ various motions—many of them
dispositive—and the exhibits thereto. Accordingly, the court will consider the motions to seal and
the Appeal together.
The Fourth Circuit has directed that prior to sealing judicial records, a district court must first
determine the source of the public’s right to access the judicial records: the common law or the First
Amendment. Stone v. Univ. of Md., 855 F.2d 178,180 (4th Cir. 1988). If the common law right of
access to judicial records applies, there is a presumption of public access to judicial records, which
can only be rebutted if countervailing interests outweigh the public’s interest in access. Rushford
v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). “Some of the factors to be
weighed in the common law balancing test ‘include whether the records are sought for improper
purposes, such as promoting public scandals or unfairly gaining a business advantage; whether
release would enhance the public’s understanding of an important historic event; and whether the
public already had access to the information contained in the records.’” Virginia Dep’t of State
Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (quoting In re Knight Publ. Co., 743
F.2d 231, 235 (4th Cir. 1984)). Where the First Amendment guarantees access to judicial records,
such access may be denied only on the basis of a compelling governmental interest or other higher
value, and only if the denial is narrowly tailored to serve that interest or value. See Stone, 855 F.2d
at 180; see also Haas v. Golding Transp., Inc., No. 1:09–CV–1016, 2010 WL 1257990, *7 n.4
(M.D.N.C. March 26, 2010) (substituting “higher value” for “governmental interest” in the context
of a civil case involving nongovernmental litigants).
In weighing the competing interests between the presumption of access and the asserted
reason for sealing, a court must comply with the procedure set forth by In re Knight Publishing
Company. First, a court must give the public notice of a request to seal and a reasonable opportunity
to challenge it. 743 F.2d at 235. Although individual notice is not necessary, a court must notify
persons present in the courtroom of the request, or docket it “reasonably in advance of deciding the
issue.” Id. A court must consider less drastic alternatives to sealing, and if it decides to seal
documents, it must “state the reasons for its decision to seal supported by specific findings, and the
reasons for rejecting alternatives to sealing in order to provide an adequate record for review.” Id.
Motions to Seal
With respect to the pending motions to seal, many of the procedural requirements of In re
Knight Publishing Company have been satisfied. The motions have been filed on the public docket
for several months. No third parties or members of the press have attempted to file an objection to
the motion to seal.
All of the motions to seal seek to seal memoranda and exhibits filed in connection with the
parties’ motions for summary judgment. It is well-settled that the public has First Amendment right
of access to documents filed in connection with a motion for summary judgment. See Va Dep’t of
State Police, 386 F.3d at 578 (citing Rushford, 846 F.2d at 253). Accordingly, the moving party
must demonstrate that a denial of access to a document is “necessitated by a compelling government
interest and narrowly tailored to serve that interest.” Rushford, 846 F.2d at 253. Here, the parties
have proffered two justifications for their requests to seal the various documents: (1) the documents
contain, comprise, or discuss parts of files which are deemed confidential under N.C. Gen. Stat. §
160A-168; and (2) the documents contain or discuss information that should remain confidential
under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq..
The court will consider each of these justifications, as applied to the specific documents, in turn.
Documents governed by N.C. Gen. Stat. § 160A-168
The City Defendants assert that many of the documents must be sealed because they are
drawn from personnel files which are confidential under North Carolina law. The City Defendants
cite to N.C. Gen. Stat. § 160A-168, which was passed as an exemption to North Carolina’s public
records law. See Thomas H. Moore, You Can’t Always Get What You Want: A Look at North
Carolina’s Public Records Law, 72 N.C. Law. Rev. 1527, 1547-48 (2008). The statute provides, in
(a) Notwithstanding the provisions of [any other State or local law] concerning
access to public records, personnel files of employees, former employees or
applicants for employment maintained by a city are subject to inspection and may
be disclosed only as provided by this section. For purposes of this section, an
employee’s personnel file consists of any information gathered by the city with
respect to that employee, and by way of illustration and not limitation, relating to his
application, selection or nonselection, performance, promotions, demotions,
transfers, suspension and other disciplinary actions, evaluation forms, leave, salary,
and termination of employment. As used in this section, “employee” includes former
employees of the city.
(b) The following information with respect to each city employee is a matter of
(3) Date of original employment or appointment to the service.
(4) The terms of any contract by which the employee is employed whether
written or oral, past and current, to the extent that the city has the written
contract or a record of the oral contract in its possession.
(5) Current position.
(7) Current salary.
(8) Date and amount of each increase or decrease in salary with that municipality.
(9) Date and type of each promotion, demotion, transfer, suspension,
separation, or other change in position classification with that municipality.
(10) Date and general description of the reasons for each promotion with that
(11) Date and type of each dismissal, suspension, or demotion for
disciplinary reasons taken by the municipality. If the disciplinary action was
a dismissal, a copy of the written notice of the final decision of the
municipality setting forth the specific acts or omissions that are the basis of
(12) The office to which the employee is currently assigned.
(c) All information contained in a city employee’s personnel file, other than the
information made public by subsection (b) of this section, is confidential and shall
be open to inspection only in the following instances:
(1) The employee or his duly authorized agent may examine all portions of
his personnel file except (i) letters of reference solicited prior to employment,
and (ii) information concerning a medical disability, mental or physical, that
a prudent physician would not divulge to his patient.
(4) By order of a court of competent jurisdiction, any person may examine
such portion of an employee’s personnel file as may be ordered by the court.
N.C. Gen. Stat. 160A-168.
Assuming that many of the documents referred to by the City Defendants qualify as
“personnel records” under N.C. Gen. Stat. § 160A-168, the court cannot find, at least in this case,
that the State of North Carolina’s governmental interest in the confidentiality of these personnel
records is sufficiently compelling so as to overcome the First Amendment public right of access and
justify the broad sealing request sought in this case. The court discerns a distinct difference between
the State’s interest in protecting the privacy rights of public employees in the course of requesting
public records,5 and the State’s interest in protecting the privacy rights of an employee, or former
employee, whose actions in the course of his or her employment form the very basis of the lawsuit.
As such, the situation presented in this case is distinguishable from cases where court have found
the privacy interests in a non-party’s personnel file constitute a compelling interest which would
outweigh the First Amendment public right of access. See Robinson v. Bowser, No. 1:12CV301,
2013 WL 3791770, at *6-8 (M.D.N.C. July 19, 2013) (recognizing the privacy interest of a nonparties in their personnel files but refusing to seal documents relating to a plaintiff’s personnel files);
Johnson v. Baltimore City Police Dep’t, Civil Action No. ELH-12-2519, 2013 WL 497868, at *3-4
(D. Md. Feb. 7, 2013) (finding that the redaction of personnel files of non-parties could protect
confidentiality interests, but finding that the plaintiff’s personnel records need not be redacted or
sealed). Indeed, at least one other district court in North Carolina has refused to seal a party’s
personnel files based solely on state law provisions providing for the confidentiality of public
employees’ personnel files, noting that “Plaintiff has not cited any authority that those concerns
As the Executive Director of the North Carolina State Bar has lamented:
The fundamental problem with the [North Carolina public records law] is that its application
is practically unrestrained. There is no reliable standard of reasonableness where demands
for public records are concerned. Although the statutes do restrict access to many categories
of information such as investigative files and trial preparation materials, most of the
documents in my possession can be demanded by any “person” at any time for any reason
or no reason at all. The requester can be a Rotarian, a reporter, an inmate, a child, a
corporation, an alien, an undocumented alien, a registered sex offender, a gadfly, or a nut.
It doesn’t matter. The requester’s motive is also immaterial . . . .
Lowell Thomas Lunsford, II, Unintended Consequences, 19 The N.C. State Bar J.17 (2013).
inevitably outweigh the need for transparency in federal judicial proceedings or that those statutes
should play a role in this Court’s assessment of the propriety of sealing judicial documents beyond
providing some indication that such information qualifies as potentially sensitive.” Robinson, 2013
WL 3791770, at *6-7.
Moreover, as it was in Robinson, in this case the court perceives that much of the information
the City Defendants contend is confidential and part of Defendant Koehler’s personnel files is
extremely relevant to Plaintiffs’ claims and/or the City Defendants’ defenses. See Robinson, 2013
WL 3791770, at *7-8 (observing that “[i]n the context of Plaintiff’s claim, the foregoing information
appears highly relevant and, indeed, critical to whether liability lies against Defendants for certain
of Plaintiff’s claims”). As the Fourth Circuit has made clear, the First Amendment right of access
is important because it “promotes not only the public’s interest in monitoring the functioning of the
courts but also the integrity of the judiciary.” Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir.
2014). Accordingly, the court cannot find, in the context of this case, that the interests embodied
in N.C. Gen. Stat. § 160A-168 serve to outweigh the First Amendment right of public access to
The City Defendants also assert certain documents are part of the “Fayetteville Police Department’s
investigative file.” See, e.g., Mem. in Support of Mot. to Seal [DE-272] at 3. Although the City Defendants
never make an explicit reference to the statute, the court assumes that City Defendants are contending that
these documents fall under the protection of N.C. Gen. Stat. § 132-1.4, which provides that “[r]ecords of
criminal investigations conducted by public law enforcement agencies . . . are not public records . . . .” N.C.
Gen. Stat. § 132-1.4(a). “Records of criminal investigations” is defined under this statute to mean “all records
or any information that pertains to a person or group of persons that is compiled by public law enforcement
agencies for the purpose of attempting to prevent or solve violations of the law . . . .” Id. § 132.1.4(b)(1).
Again, assuming that any of the documents fall within this statute, the court does not find, in the context of
this case, that the confidentiality interests embodied in the statute serve to outweigh the First Amendment
right of public access to judicial proceedings. There is no indication that disclosure of the documents will
jeopardize any ongoing criminal investigations or reveal the names of confidential informants. Cf. Alexander
v. City of Greensboro, Nos. 1:09-CV-00293, 1:09-CV-00934, 2013 WL 6687248, at *4-5 (M.D.N.C. Dec.
18, 2013). Rather, the documents appear to concern the City Defendants’ investigation into whether
Defendant Koehler used excessive force and/or whether Plaintiff Darwin Johnson committed the offense for
The sole basis proffered for the sealing of many documents is that they refer to
“confidential” documents and matters in the personnel file of Defendant Koehler. For the
aforementioned reasons, this does not suffice to justify sealing. The court has reviewed the docket
in detail, and has determined that following documents do not need to be sealed on this basis:
Certain Exhibits to Plaintiffs’ Opposition to Defendant Heather St. John’s
Motion for Partial Summary Judgment [DE-219-2 through 219-29]
Certain documents that had been marked confidential and filed by Plaintiffs [DE236-1 through DE-236-4]
Certain Exhibits to the Fifteenth Declaration of Christopher Thomas [DE-244-1
through 244-11; DE-244-14 through DE-244-15; DE-244-17]
Certain Exhibits to the Sixteenth Declaration of Christopher Thomas [DE-246-1
through DE-246-5; DE-247-2 through DE-247-3; DE-247-7 through DE-247-9]
The Second Declaration of Stacy Marie Smith [DE-248] and certain Exhibits thereto
[DE-248-1 through DE-248-6; DE-248-10; DE-248-12; DE-248-16 through 17; DE248-19 through DE-DE-248-22]
Certain Exhibits to the Seventeenth Declaration of Christopher Thomas [DE-258-1
through DE-258-3; DE-259-1 through DE-259-3; DE-259-5 through DE-259-6]
Certain Exhibits to the Plaintiffs’ Memorandum in Opposition to the City
Defendants’ Motion for Summary Judgment [DE-263-17 through DE-263-20; DE263-26]
Certain Exhibits to the Nineteenth Declaration of Christopher Thomas [DE-292-2
through DE-292-4; DE-292-7 through DE-292-9; DE-292-11].
The court has determined, however, that the following documents will remain SEALED
because they contain personal identifying information of third-parties or Defendant Shane Koehler,
and cannot be meaningfully redacted [DE-248-7 through DE-248-9; DE-248-11; DE-248-18;DE263-21 through DE-253-25].
The parties also move to seal a large number of documents because the documents “contain,
comprise, or discuss . . . sensitive Patient Health Information that should remain confidential under
which he was arrested. Again, these facts and issues go to the heart of this case, and there appears to be no
compelling reason to shield them from the public’s view.
the Health Insurance Portability and Accountability Act of 1996 codified in 42 U.S.C. §§ 1320d et
seq. . . . .” City Defendants’ Mem. in Support of Motion to Seal [DE-294] at 2. It is true that some
federal courts have found that the need to keep personal health information confidential may justify
sealing certain documents. See James v. Servicesource, Inc., Civil Action No. 3:07CV317, 2007 WL
4190794, at *4 (E.D. Va. Nov. 21, 2007) (finding it appropriate to seal a pro se plaintiff’s medical
records due to their “sensitive nature”). This is especially so where the medical records are of third
parties, or are not central to the disposition of a case. See, e.g., Roberson v. Smith, Nos. 5:07-CV284-F, 5:08-CV-40-F, 2010 WL 2332282 (E.D.N.C. June 9, 2010) (allowing the parties’ motion to
seal exhibits which contained medical records of third parties). Federal courts have recognized,
however, that where a party voluntarily puts his or her medical information or status into issue, it
is more difficult to find that the party’s privacy interests constitute a compelling interest that
outweighs the First Amendment right of access to documents, even if the documents are medical
records. See, e.g., Matthews v. The Guardian Life Ins. Co. of America, No. 1:98-CV-00106, 2014
WL 1681693, at *1 (N.D. Ohio April 28, 2014) (finding that a plaintiff “waived any right to the
confidentiality of her medical records when she made her medical condition and diagnoses at issue);
Lohr v. UnitedHealth Grp., Inc., No. 1:12CV718, 2013 WL 4500692, at *4 (M.D.N.C. Aug. 21,
2013) (refusing to seal a plaintiff’s medical records in a case challenging a denial of ERISA
benefits); Stanford v. Cont’l Cas. Co., 455 F. Supp. 2d 438, 446 (E.D.N.C. 2006) (recognizing that
cases challenging a denial of ERISA health benefits routinely involve the disclosure of medical
information and refusing to seal an administrative record that contained medical records).
In this case, Plaintiff Darwin Johnson has made any injuries he may have suffered as the
result of the alleged actions of Defendant Koehler a main issue in this case. Accordingly, the court
does not find that his privacy interests in his medical records outweigh the First Amendment right
of access. Consequently, the court finds that the following documents do not need to be sealed:
Certain Exhibits to the Fifteenth Declaration of Christopher Thomas [DE-243-19;
Certain Exhibits to the Sixteenth Declaration of Christopher Thomas [DE-246-6;
Certain Exhibits to the Seventeenth Declaration of Christopher Thomas [DE-258-4
through DE-258-5; DE-259-7]
The Declaration of Darwin Johnson and Exhibits attached thereto, along with the
depositions of Darwin Johnson [the entirety of DE-266]7
The First Declaration of James H. Locus, Jr. and attached exhibits [the entirety of
Certain Exhibits to the Nineteenth Declaration of Christopher Thomas [DE-292-5
Defendant Shane Koehler’s medical status also is at issue in this case, although it cannot be
said that he voluntarily made it an issue. The court finds that his interest in maintaining the privacy
of many of these records, some of which contain highly sensitive information or health information
that is not relevant to this action, outweighs the First Amendment right of public access to these
records. Accordingly, the court finds that the following items may be maintained under seal:
Exhibit W to the Fifteenth Declaration of Christopher Thomas [DE-244-16]
Certain Exhibits to the Second Smith Declaration [DE-248-13 through DE-248-15]
Certain Exhibits to the Plaintiffs’ Memorandum in Opposition to the City
Defendants’ Motion for Summary Judgment [DE-263-1 through DE-263-5; DE-26321 through DE-263-25
The court does not see a need, however, to seal deposition transcripts, memoranda submitted
The Declaration of Darwin Johnson discusses his medical conditions, but the same information also is
discussed in Plaintiffs’ briefing and Plaintiffs have not asked that medical information be redacted from the
briefing. Moreover, Plaintiffs filed a Motion to Amend/Correct Record to Include Amended Declarations
[DE-308], and one of the amended declarations is that of Darwin Johnson [DE-309-3] which discusses the
same medical information and has been publicly available since it was filed. Moreover, although Plaintiffs
contend that the all of the exhibits to Declaration of Darwin Johnson are medical records, the documents at
Exhibit C [DE-266-7] are personnel records of Mr. Johnson. Plaintiffs have not identified a compelling reason
to seal these personnel records. The case they cite in support of their request, Hunter v. Town of Mocksville,
961 F. Supp. 2d 803, 807 (M.D.N.C. 2013) appears to be inapposite. In Hunter Judge Eagles recognized that
it may be appropriate to keep personnel files under seal, but ultimately rejected the parties’ request, noting
that “because this is a § 1983 case, there is an especially strong interest in transparency.” Id.
in support of the various motions, or other documents that discuss the records. The court finds it
highly unlikely that the parties would expect that almost the entirety of a trial in this matter would
be conducted in a sealed courtroom; similarly, it does not make sense for almost all of the testimony
evidence in the record before the court on the motions for summary judgment to be sealed, nor for
almost the entirety of the parties’ briefing8 on the issues to be sealed. See Rushford, 846 F.2d at 252
(reasoning that “[b]ecause summary judgment adjudicates substantive rights and serves as a
substitute for a trial” there is no real distinction between the two for sealing purposes). Accordingly,
the court finds that the following items will not be sealed:
Plaintiffs’ Opposition to Defendant St. John’s Partial Motion for Summary Judgment
Exhibit A to Plaintiffs’ Opposition to Defendant St. John’s Partial Motion for
Summary Judgment [DE-219-1]
City Defendants’ Memorandum of Law in Support of Motion for Summary
Certain Exhibits to the Sixteenth Declaration of Christopher Thomas [DE-247-10;
City Defendants’ Opposition to Plaintiff’s Partial Motion for Summary Judgment
Certain Exhibits to the Seventeenth Declaration of Christopher Thomas [DE-259-4]
Indeed, even if the court could find the parties’ stated justifications for sealing sufficient to overcome the
First Amendment right of access, it would be hard-pressed to characterize the City Defendants’ request to seal
the entirety of the their various memoranda filed in support of the dispositive motions, and the entirety of
certain witnesses’ depositions, as “narrowly tailored.” The City Defendants contend that redaction of the
various documents “would frustrate the purpose of their filing,” and the very “purpose of the references that
confidential information is to provide the Court evidence necessary to decide” the various parties’ dispositive
motions. See, e.g., City Defts. Mem. in Support of Mot. to Seal [DE-294] at 4-5. In other words, the City
Defendants appear to believe that redacting a document would prevent the court from considering the
redacted information. That is not how redaction works in the sealing context. Rather, a redacted copy is
publicly available on the docket, while the un-redacted copy is maintained under seal. See Alexander v. City
of Greensboro, Nos. 1:09-CV-00293, 1:09-CV-00934, 2013 WL 6687248, at *2 (M.D.N.C. Dec. 18, 2013)
(“Plaintiffs have submitted two versions of a brief and accompanying exhibits in response to defendants’
motions for summary judgment: an un-redacted version, which plaintiffs seek to have sealed . . . and a
redacted version for the public record . . . .”); see also Lohr v. UnitedHealth Group Inc., No. 1:12CV718,
2013 WL 4500692, at *3 (M.D.N.C. Aug. 21, 2013) (“In addition, the Parties’ suggestion that a redacted
version of the Administrative Record would afford no value to the Court also falls short because the public
filing of a redacted version of the Administrative Record would not preclude their provision of an unredacted
version to the Court for maintenance under seal.”).
City Defendants’ Objections to Assertions of Fact Not Supported by Admissible
Plaintiffs’ Memorandum in Support of Plaintiff’s Motion to Seal Portions of
Plaintiffs’ Response in Opposition [DE-267]
Plaintiffs’ Response in Opposition to City Defendants’ Motion for Summary
Certain Exhibits to the Plaintiffs’ Memorandum in Opposition to the City
Defendants’ Motion for Summary Judgment [DE-263-6 through DE-263-16]
City Defendants’ Reply in Support of City Defendant’s Motion for Summary
Certain Exhibits to the Nineteenth Declaration of Christopher Thomas [DE-292-1;
City Defendants’ Objections to Assertion of Facts [DE-287]
The court recognizes that the parties may find that some of the information the court intends
to unseal may contain personal identifiers that should be sealed, such as social security numbers, or
that some other reason, not heretofore identified by the parties, requires the sealing or redaction of
such documents. Accordingly, the Clerk of Court is DIRECTED to continue to maintain all of the
documents under provisional seal. Any party may file a renewed motion to seal within 10 days of
the filing date of this order, accompanied by, if necessary, redacted versions of any documents that
may be maintained on the public record of the docket.
Appeal of Judge Jones’ Order
Plaintiffs also appeal Judge Jones’ October 6, 2014 Order [DE-276] which sealed Exhibits
C and D [DE-229-1; DE-229-2] to the City Defendants’ opposition to the Fourth Motion to Compel.
The City Defendants sought to seal their opposition [DE-227] to the Fourth Motion to Compel and
supporting Exhibits C and D [DE-229-1, DE-229-2].
Title 28 U.S.C. § 636, Rule 72 of the Federal Rules of Civil Procedure, and this court’s local
rules authorize magistrate judges to decide certain non-dispositive pretrial matters. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(a); Local Civil Rule 72.3(b), EDNC. Upon timely appeal by an
objecting party, a district judge must “modify or set aside any part of the of the order that is clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
The court already has determined that these documents, which were later filed in connection
with the parties’ dispositive motion, should not remain sealed. Because the documents will now
appear on the public docket, there appears to be little reason to keep another version sealed on the
docket. Accordingly, the court finds that Exhibits C and D to the City Defendants’ Fourth Motion
to Compel [DE-229-1; DE-229-2] need not remain under seal.9
V. MOTIONS TO AMEND
Plaintiffs have filed two motions to amend [DE-270; DE-308] seeking to amend exhibits
submitted in connection with the briefing on the dispositive motions. For good cause shown, the
motions [DE-270; DE-308] are ALLOWED.
VI. JOINT MOTION TO CONTINUE THE TRIAL DATE
The trial in this matter is set for the January 26, 2015, term of court. The parties have moved
to amend the court’s scheduling orders to continue the trial in this matter to no less than 90 days
from the final resolution of the pending dispositive motions, including interlocutory appeals
In light of the fact that the parties will have additional time to file renewed motions to seal,
which in turn will delay the court’s ruling on the dispositive motions, the court agrees that a
continuance of the trial in this matter is necessary. The court does not agree, however, that it must
be continued for a period of 90 days after ruling on the dispositive motions.
Accordingly, the joint motion [DE-314] is ALLOWED in part, and the trial in this matter
The court notes, however, that Judge Jones was considering whether the reasons proffered by the
City Defendants for sealing the exhibits—which were not challenged by Plaintiffs when the motion
to seal was before Judge Jones—overcame the common law, as opposed to the First Amendment,
right of access to the documents.
is continued to the term of court commencing on March 30,2015.
For the foregoing reasons, the City Defendants' Motions to Seal [DE-250; DE-271] are
ALLOWED IN PART and DENIED IN PART. Plaintiffs' Motions to Seal [DE-217; DE-268; DE282] and City Defendants' Motions to Seal [DE-260; DE-293] are DENIED. The Clerk of Court
is DIRECTED to continue to maintain the relevant documents under provisional seal. Any party
may file a renewed motion to seal within 10 days, accompanied by, if appropriate, redacted
documents. The court will issue an order directing the Clerk to unseal the appropriate documents
after it rules on any renewed motion to seal.
The court accepts the M&R [DE-275] and overrules Plaintiffs' Objection [DE-295] thereto.
Consequently, Plaintiff Darwin Johnson's Fourth Motion to Compel [DE-223] is DENIED.
Plaintiffs Appeal [DE-296] of Judge Jones' October 6, 2014, Order [DE-276] is ALLOWED.
Plaintiffs' motions to amend [DE-270; DE-308] are ALLOWED.
Finally, the parties Joint Motion [DE-314] to continue the trial in this matter is ALLOWED
IN PART, and the trial is continued to the March 30, 2015, term of court. The court reserves ruling
on the pending dispositive motions.
'day of December, 2014.
nior United States District Judge
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