Bruesch v. Flanagan et al

Filing 118

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 83 Motion for Discovery; granting 89 Motion to Strike insofar as it asks the court to disregard Bruesch's claims of misconduct; finding as moot 91 Motion for Leave to File a Surreply. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Nicholas Dodge Bruesch,
Plaintiff,
vs.
Todd Flanagan, Sean Conway, Brandon
Gumke, Jean Sullivan, and Nathan
Erickson,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

ORDER

Case No. 1:12-cv-083

Before the court is a Request to Order Defendants to Produce Discovery filed by the plaintiff,
Nicholas Dodge Bruesch (“Bruesch”), on June 20, 2013. Also before the court is a Motion to Strike
filed by defendants on July 16, 2013. For the reasons set forth below, Bruesch’s motion is denied and
defendants’ motion is granted.
I.

BACKGROUND
Bruesch was incarcerated at the North Dakota State Penitentiary (“NDSP”) at the time he

initiated this action. He was transferred to the James River Correctional Center (“JRCC”) on April 20,
2013.
On March 26, 2013, Bruesch filed what the court construed as a Motion for Release of
Documents in which he asserted, amongst other things, that NDSP staff had denied him access to his
legal materials. On April 8, 2013, defendants filed a response in opposition to Bruesch’s motion.
They maintained that the restrictions on plaintiff’s ability to access legals materials were a measured,
justified response to serious security issues.
On April 10, 2013, Bruesch filed a document captioned “Affidavit” wherein he again asserted
that he had been denied access legal materials. On April 16, 2013, he filed what the court construed

1

as a Second Motion for Release of Documents in which he asserted that JRCC staff was continuing
to deny him access to his legal materials.
On April 23, 2013, defendants filed a supplement to their response in opposition to Bruesch’s
first Motion for Release of Documents, advising:
In his documents, Bruesch explains he was sent to the James Rivers
Correctional Center (JRCC) on April 2, 2013 and that when the North Dakota State
Penitentiary (NDSP) sent his property to JRCC it did not send all of his legal work,
legal mail, and legal letters. Bruesch further asserts the JRCC warden told Bruesch his
legal work will not be given to him when it is shipped from the NDSP.
The undersigned counsel contacted staff at the NDSP and the JRCC to
determine the facts regarding this matter. It has been reported to the undersigned
counsel that:
Bruesch was transferred to the JRCC on April 2, 2013. As part of his transfer,
Bruesch’s property was inventoried by NDSP staff. Some, but not all, of Bruesch’s
property was transferred to JRCC. Bruesch’s property not transferred to JRCC was
sent to the NDSP property officer. The NDSP property officer has located Bruesch’s
legal documents and will send them to the JRCC with the Tuesday, April 23, 2013
transport.
Due to sanctions for his behavior, Bruesch has received some, but not all, of
his property sent to the JRCC. Based on his behavior at this time, Bruesch will receive
his legal work when it arrives at the JRCC.
(Docket No. 69) (internal citations omitted).
Taking defendants statements at face value and believing that Bruesch would soon be reunited
with his legal materials, the court deemed his Motions for Production of Documents moot.
On June 20, 2013, Bruesch filed a motion to compel production of the following from
defendants:
1. Investigative Findings on Todd Flanagan regarding the May 30th, 2012 Incident of
this case.
2. Investigation findings on Sean Conway regarding the May 30th, 2012 incident of
this case.
3. Any investigation and/or misconduct reports on Todd Flanagan at the [North
Dakota Department of Corrections and Rehabilitation] NDDOCR.

2

4. Any investigations and/or misconduct reports on Sean Conway at the NDDOCR.
5. Policy and Procedures of the NDDOCR regarding the security cameras in the
administration segregation unit.
6. Plaintiff Nicholas Bruesch’s file at the NDDOCR.
(Docket No. 83) (errors in original). Presumably in anticipation that defendants would object to the
timeliness of his motion, he first asserted that institutional restrictions on his ability to access legal
materials had prevented him from filing his motion earlier. Next, he complained about defendants
objections to his interrogatories and requests for document production. Finally, he accused defense
counsel of misconduct, asserting:
When plaintiff was moved to JRCC-SAU unit all of his sanction were put on hold.
The unit team agreed to allow my legal work and legal access - law library and law
librarian visits. On April 23rd, 2013, counsel for defendants had filed a memorandum
in opposition to release documents were upon counsel had admitted to contacted case
manager Lyle Mee here at JRCC-SAU Ever sine the April 23rd date SAU unit staff
have been violating my legal access off and on.
No matter what was said by defendants counsel to SAU case manager. The fact
counsel even contacted them to discuss whether or not plaintiff receives his legal
access should be misconduct on itself. A complaint on this is in the works.
(Docket No. 83) (errors in original).
On July 1, 2013, defendants filed a response to plaintiff’s motion to compel. First, they
asserted that plaintiff’s motion should be dismissed on the grounds that it is untimely. Second, they
claimed to have already provided Bruesch with all materials in their possession regarding the May 30,
2012, incident. Third, they objected to Bruesch’s demands for production of misconduct reports, the
NDDOCR’s policy regarding security cameras in the administrative segregation unit, and plaintiff’s
NDDOCR file on the grounds they were overbroad, unlikely to lead to discovery of admissible
evidence, and otherwise called for the disclosure of confidential information. Additionally, with
respect to plaintiff’s demands regarding the NDDOCR’s security camera policy, they objected on

3

grounds that such disclosures would compromise institutional security.
On July 15, 2013, Bruesch filed a reply in support of his motion to compel. In addition to
dismissing plaintiff’s assertions regarding the overbreadth and irrelevance of his discovery demands,
he again accused defense counsel of misconduct, asserting:
On April 23rd, 2013 Defendants filed a supplement in support of opposition
to motion to release documents. In this supplement Counsel for Defendants admits to
contacting case manager Lyle Mee at JRCC SAU Unit. Since then I have not had
proper access to legal materials and/or law library access. A complaint on this is
before the Court.
Counsel for Defendants in this case is out of line for contacted case manager
and Lyle Mee and having restrictions placed on legal access. Case No. 1:12-cv-083
has nothing to do with officials at this prison.
(Docket No. 88).1
On July 16, 2013, defendants filed a motion to strike plaintiff’s reply insofar as it alleged
misconduct by defense counsel. In the alternative, defendants requested leave to file a surreply to
more fully respond to Bruesch’s allegations of misconduct.
II.

DISCUSSION
A.

Discovery Requests
1.

Investigative Findings Regarding the Incident Giving Rise to Bruesch’s
Claims of Excessive Force

Bruesch has alleged in his second amended complaint that he was assaulted by Defendants
Flanagan, Conway, and Gumke while being escorted from the Administrative Segregation office to
his cell on the morning of May 30, 2012. In the instant motion he asks the court to issue an order
compelling defendants to produce Flanagan and Conway’s written accounts of this incident. In

1

Bruesch’s purported difficulties in accessing his legal materials have had little apparent effect on his ability
to access this court. Counting the case at bar, he now has initiated three separate civil rights actions in this court against
NDSP and JRCC staff. See Bruesch v. Netolicky, et. al., Case No. 3:13-cv-050 and Bruesch v. Schmalenberger, Case
No. 1:13-cv-077.

4

response, defendants insist that they have already produced discoverable, responsive documents to
Bruesch’s discovery requests. Specifically, they aver:
In a request for production of documents, Bruesch requested Defendants
produce “[a]ll written statements, originals or copies, identifiable as reports about the
incident on May 30th, 2012. Employees and/or witnesses.” Defendants objected to the
extent the request sought the identity of a confidential informant. They then gave the
following answer:
Without waiving this objection, see Exhibits 1-12 attached to the
Affidavit of Denise Senger, provided with Defendant’s Motion for
Summary Judgment. The following documents have not been provided
for the identified reasons: Hearing Record regarding Nicholas Bruesch
(undated; relating to 5/30/12 incident) not provided for security
reasons; Memorandum of Jodi Molenda, LAC regarding Nicholas
Bruesch (May 30, 2012) not provided because it is confidential under
N.D.C.C. § 12-47-36.
Flanagan gave the same answer to a duplicative discovery request.
The request for production does not specifically request copies of
“Investigation Findings” on Flanagan and Conway “regarding the May 30th, 2012
incident of this case.” However, Defendants’ response addressed all of the reports
regarding the May 30, 2012 incident. Moreover, in other discovery responses,
Defendants specifically informed Bruesch that Flanagan and Conway were not
disciplined for their involvement in the May 30, 2012 incident
Significantly, Bruesch is not asserting Defendants improperly withheld the two
documents identified in Defendants’ answer, which have nothing to do with
“Investigation Findings” on Flanagan and Conway. Bruesch is requesting the Court
order Defendants to produce “Investigation Findings” on Flanagan and Conway
“regarding the May 30th, 2012 incident of this case.” But as repeatedly explained to
Bruesch, Defendants have produced the reports regarding the May 30, 2012, which
would necessarily include findings regarding Flanagan and Conway, if there were any.
(Docket No. 86) (internal citations omitted).
The record reflects that defendants have provided Bruesch with: (1) affidavits wherein
Flanagan, Conway, Gumke, Marsh, and Senger attest to their account of events that occurred on May
30, 2012; (2) copies of disciplinary hearing reports, incident reports, AS reports, and investigative
reports that were generated in the wake of the May 30, 2012, incident; (3) a confidential informants
account of what occurred on May 30, 2012; (4) copies of the forms used by staff to advise Bruesch
of his rights along with the infractions with which he had been charged as a result of his conduct on

5

May 30, 2012; (5) memorandums from Conway and Eric Gustafson regarding the May 30, 2012,
incident; and (6) a copy of the DOCR’s policy regarding the use of force. (Docket Nos. 57-1 through
57-19). The court has reviewed this material and finds that it is responsive to Bruesch’s discovery
demands. Bruesch’s motion insofar as it pertains to the disclosure of investigative materials is
therefore denied.
2.

Misconduct Reports regarding Defendants Todd Flanagan and
Sean Conway

Bruesch seeks production of any investigation and/or misconduct reports pertaining to
Flanagan and Conway. Defendants object on the grounds that this request is overbroad and not
calculated to lead to the discovery of information relevant to the matter at issue. They further aver that
the release of Flanagan’s and Conway’s personnel records would create security issues.
Having reviewed the parties submissions, the court concludes Bruesch’s request for misconduct
reports is overbroad and not otherwise geared to the discovery of admissible evidence regarding
Flanagan’s and Conway’s alleged excessive use of force on May 30, 2012. Bruesch did not limit his
request to any specific time frame or type of misconduct allegation. Thus, it arguably encompasses
documents relating to investigations that may have occurred years ago, investigations involving
personnel matters unrelated to the treatment of inmates, investigations of unrelated to the alleged
conduct at issue in this case, and investigations where the allegations misconduct proved to be
spurious.
Bruesch’s request also raises valid security concerns. As defendants pointed out in their
response to Bruesch’s request, investigatory reports may include sensitive information about the staff
and other inmates, including confidential informants.

And here, Bruesch has failed to make a

sufficient showing for how this information would plausibly “move the needle” in terms of creating

6

a triable issue of fact in light of the overwhelming weight of the evidence proffered by the defendants.
See, e.g., Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir. 2008) (explaining that
although personnel files are not “categorically out-of-bounds,” they “often contain sensitive personal
information” and the requirement that the material sought in discovery be “relevant” should be firmly
applied); Sidari v. Orleans County, 174 F.R.D. 275, 289 (W.D.N.Y. 1996) (finding production of
personnel files of county sheriff’s office employees was not warranted absent articulation of a specific
need for the information). As a consequence the court is not inclined to grant this request.
3.

NDDOCR Policy Regarding Security Cameras in Administrative
Segregation Units

Bruesch apparently served defendants with the following discovery request:
INTERROGATORY NO. 4: Identify and attach all documents relating to the
placement of security cameras in Admin. Segregation unit at North Dakota Department
of Corrections.
(Docket No. 65). Defendants objected to the request for security reasons. (Id.).
In the motion now before the court Bruesch asks the court to order defendants to produce
NDDOCR policy regarding security cameras in AS units. Defendants renew their objection, asserting:
The location of the security cameras in the AS Unit is obvious; anyone can see the
housing that contains the security cameras. The location of the security cameras is not
the security concern. DOCR’s placement documents of its security cameras contain
much more information than just where the security cameras are located. The
documents are part of the security prints for the entire infrastructure. For example, any
camera location on a print also includes many other diagrams of floor plans and
security devices. The documents are highly protected by DOCR for security reasons.
(Docket No. 86).
It is not readily apparent at this point why Bruesch wants copies of the NDDOCR’s policy

7

regarding security cameras.2 In any event, the court concludes that defendants objections are valid.
4.

Bruesch’s NDDOCR File

According to defendants, Bruesch served them with a request for production of his NDDOCR
file. They objected on the grounds that the request was overly broad, unduly burdensome, and unlikely
to lead to the discovery of admissible information. They did, however, invite him to make a more
narrow and specific request for documents.
Bruesch apparently declined defendants invitation and now asks this court to order defendants
to produce his entire NDDOCR file. Defendants respond by renewing their objections to his request.
In so doing they stress that Bruesch’s file contains material in date back to October 2008.3 They also
advise that inmate files typically contain: case histories (admissions, classification, movement/transfer,
case management, programming, grievances, kites, letters, incident reports, disciplinary information,
criminal investigation, parole, victims, etc.); visitation records (correspondence, applications, denials);
property inventories (intake information, inventories, deleted property, outgoing property, property
package disposition, cell check/pulled items, correspondence); treatment records (assessment,
programming, correspondence, psychological); and legal records (admissions, financial obligation,
criminal judgment, detainers and warrants, discharge information, sentence calculation, community
violations, parole board, sentencing report).
Bruesch has provided the court with little in the way of explanation as to why he needs access

2

On May 20, 2013, Bruesch filed a motion to compel production of any security camera footage of the
incident giving rise to this action. Defendants filed a response to the motion on May 21, 2013, in which they questioned
whether the incident at issue was ever recorded and further averred that, if by chance the incident had been captured by
a security camera, it has been taped over. They also advised that security camera footage is typically disposed of after
seven days unless someone burns it to a disc and that there was no record of any footage from May 20, 2012, being
burned to a disc. Consequently, on June 3, 2013, the court issued an order denying Bruesch’s motion to compel.
3

According to defendants, plaintiff was twice incarcerated in state facilities. The first time was from October
2008 through December 2009. The second time is October 2010 to the present.

8

to his entire file. Absent any such explanation, the court finds that defendants’ objection was proper.
B.

Motion to Strike

As previously noted, Bruesch takes issue with the fact that defense counsel contacted NDSP
and JRCC staff in April when investigating Bruesch’s claim that he was unable to access his legal
materials.
The court finds Bruesch’s charges of misconduct specious. It was neither improper nor
unethical for defense counsel to contact NDSP and JRCC staff to respond to Bruesch’s assertions
regarding his inability to access his legal materials. In fact, all indications are that Bruesch benefitted
by counsel’s action as it appears to have expedited his reunion with his legal materials. As a
consequence the court shall disregard Bruesch’s claim of misconduct.
III.

CONCLUSION
Bruesch’s Request to Order Defendants to Produce Discovery (Docket No. 83) is DENIED.

Defendants’ Motion to Strike (Docket No. 89) is GRANTED insofar as it asks the court to disregard
Bruesch’s claims of misconduct. Defendants’ request for leave to file a surreply to Bruesch’s motion
(Docket No. 91) is deemed MOOT.
IT IS SO ORDERED.
Dated this 11th day of March, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

9