Pineda v. Hamilton County et al
MEMORANDUM ORDER granting 70 Plaintiff's Motion for Protective Order. No Defendant may further inquire, either at trial or otherwise in this litigation, into Plaintiff's (or any other witness's) immigration status, which would inclu de questions about citizenship, a social security number, a driver's license or other form of government identification, and the name of his or her employer. In tandem with this protective order, Plaintiff may not testify at trial regarding the length of any absence from work that he attributes to the injury he sustained at the Inner City nightclub. Because it is premature, Plaintiff's liminal motion regarding Fifth Amendment concerns is DENIED WITHOUT PREJUDICE to renew before the presiding judge. Signed by Magistrate Judge Stephanie K. Bowman on 4/16/2018. (km)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:15-cv-693
RAYMOND BERRY, et al.,
This civil action is before the Court on Plaintiff Ali Pineda’s Motion in Limine
and/or for a Protective Order (Doc. 70), and the parties’ responsive memoranda (Docs.
77, 78.) For the reasons that follow, Plaintiff’s Motion for a Protective Order will be
In this civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff Ali Pineda
accuses Hamilton County Sheriff’s Deputies Roy Berry, William Cotton, and Gene
Nobles (“County Defendants”) of use of excessive force and failure to provide medical
assistance. He alleges that, in the early morning of November 10, 2013, one of them
struck him in the head with a baton in the course of breaking up a fight at the Inner
Circle nightclub, where the deputies were working a private security detail. Pineda also
sues PNA, Inc. (“PNA”) doing business as Inner Circle.
A. Plaintiff’s Deposition
County Defendants and PNA deposed Plaintiff on July 26, 2017. (See Ali Pineda
Rodriquez Dep., Doc. 76.) In some instances on his own, and in other instances at the
instruction of his counsel, Plaintiff declined to answer questions about whether he is a
United States citizen, 1 how he arrived in the United States, 2 the name of his employer, 3
whether he has a social security number, 4 and whether he has a driver’s license or any
other form of identification. 5 In the course of cross-examination, counsel for County
Defendants initiated a call to the Court and these evidentiary rulings followed:
The Court sustained Plaintiff’s objection to questions about his citizenship.
Plaintiff’s counsel argued that questions regarding his citizenship and immigrant
status—whether legal or illegal—are not relevant to his Section 1983 claims and
“potentially could lead to deportation or criminal prosecution.”
(Id. at PageID 1277
(36:1–19).) In response, counsel for County Defendants maintained “it goes to the
credibility of Mr. Pineda if he has entered this country illegally.” (Id. at PageID 1278
(37:3–7) (“What could be more of an indication of credibility if someone has committed a
felony? It’s a felony to enter this country illegally.”).) The Court did not order Plaintiff to
answer. (Id. at PageID 1278 (38:3–12) (“[I]n criminal matters, I don’t ask the citizenship
of any of the defendants for the very reasons that Mr. Mezibov stated, so I’m not going
to order that [Plaintiff] answer it in a civil matter.”); see id. at PageID 1280 (46:21–
23).) The Court also sustained Plaintiff’s objection to questions about a social security
number based on relevance.
(Id. at PageID 1280 (46:5–21) (“Yeah, I’m with Mr.
Doc. 76 at PageID 1270–71 (7:10–9:10).
Doc. 76 at PageID 1271 (9:14–10:8).
Doc. 76 at PageID 1271 (12:11–17), 1273 (19:2–20, 20:8–11).
Doc. 76 at PageID 1272 (15:17–24).
Doc. 76 at PageID 1272 (16:3–19).
Mezibov on the Social Security issue. I’m more protective than others on that number.
I don’t think it’s relevant to any particular case, except in limited circumstances.”).) The
Court additionally sustained Plaintiff’s objection as to whether he has a driver’s license.
(Id. at PageID 1280 (46:23–24); see id. at PageID 1279 (42:19–44:9).)
However, the Court overruled Plaintiff’s objection regarding the relevance of the
name of his employer. 6 (Id. at PageID 1282 (53:20–23) (“As to the work, Mr. Vollman
can ask the name of [Plaintiff’s] employer, and the Court knows that he will not use that
information to harass the employer or Mr. Pineda[.]”).) Then further discussion ensued
with respect to whether allowing County Defendants to later contact Plaintiff’s employer
might circumvent “the Fifth Amendment issue that Mr. Pineda raised as to his
citizenship.” (Id. at PageID 1282 (55:20–56:6).) Counsel for PNA asked if the Court
was “finding or ruling” that Plaintiff had invoked his Fifth Amendment protection. (Id. at
PageID 1283 (57:14–58:3).)
The Court responded that such a determination was
unnecessary inasmuch as Plaintiff, through his counsel, “had clearly stated that he is
invoking the Fifth.” (Id. at PageID 1283 (58:4–9).) Plaintiff’s counsel clarified:
There is the potential in there for criminal consequences and/or
some other consequences, immigration status, what have you.
And to the extent that these questions elicit or intend to elicit
answers which may have negative consequences in those areas,
then yes, [Plaintiff] is invoking the Fifth.
(Id. at PageID 1283 (58:10–16) (emphasis added).) The proceedings with the Court
concluded, and testimony resumed. At this point Plaintiff formally invoked his Fifth
In support of his objection, Plaintiff’s counsel clarified that his client was not “asking for any
compensation for that period of time [about a month] for his missing work” in the wake of the injury
alleged. (Doc. 76 at PageID 1281 (49:3–16); see id. at PageID 1273 (20:8-24).)
Amendment right against self-incrimination 7 (and renewed his objections based on
relevance) in reply to questions asking where he works, whether he is a United States
citizen, whether he has a driver’s license, and for his social security number. (Id. at
PageID 1283 (59:13–60:11).)
B. Eyewitness Depositions
County Defendants and PNA deposed eyewitnesses Luis Alonzo Avila (Doc. 73),
Juana Elia Gomez (Doc. 74), and Dilcia Arias Hernandez 8 (Doc. 75) on September 9,
2017. Similar issues came up during their testimony, but, because the depositions were
taken on a Saturday, counsel did not contact the Court for evidentiary rulings. 9 The
deponents either declined to answer immigration-related questions on their own, or
Plaintiff’s counsel instructed them not to answer. None of the eyewitnesses answered
questions regarding how he or she came from Honduras to the United States. 10 Avila
also did not answer whether he is a citizen or legal resident of the United States, 11 how
much he is paid by his employer, 12 and—particularly vexing to counsel for County
Defendants—whether he ever has been charged with a crime. 13 Gomez did not answer
whether she had a “work permit” when she arrived in the United States in 1996.14
Hernandez did not answer whether, when she came from Honduras to the United
“No person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const.
Hernandez refers to herself as Plaintiff’s “wife” with the qualification, “We’re not married, we’re just
together.” (Doc. 75 at PageID 1261 (6:20–24).)
See Doc. 73 at PageID 1249 (15:8–12), 1250 (19:7–20:12); Doc. 75 at PageID 1262 (9:21–23), 1266
Doc. 73 at PageID 1247 (7:20–8:8) (Avila); Doc. 74 at PageID 1254 (5:9–18) (Gomez); Doc. 75 at
PageID 1261 (7:24–8:17) (Hernandez).
Doc. 73 at PageID 1247 (8:9–17, 21–23).
Doc. 73 at PageID 1247–48 (8:24–9:4).
Doc. 73 at PageID 1247 (5:22–6:13, 8:18–20), 1249–50 (15:8–20:12).
Doc. 74 at PageID 1254 (6:1–10).
States, she came with Plaintiff 15 or whether she has a driver’s license and currently
drives a car. 16
C. The Pending Motion
Plaintiff’s pending motion is alternatively styled as one in limine and/or for
protective order. (Doc. 70 at PageID 1231.) He asks the Court to prohibit questions “in
any further court proceedings” about his immigration status or the immigration status of
the eyewitnesses to the events at the Inner Circle nightclub on November 10, 2013. (Id.
at PageID 1232.) He also asks the Court to prohibit defense counsel from “referring to,
basing arguments on, or drawing inferences from” the fact that he has invoked his Fifth
Amendment right against self-incrimination with respect to questions about his
immigration status. (Id.) County Defendants respond that testimony about immigration
status is probative of a witness’s credibility and character for truthfulness or
untruthfulness, and, as such, admissible under Fed. R. Evid. 607 and 608(b). (Doc. 77
at PageID 1294–96.) Plaintiff replies that County Defendants misunderstand the need
for “specific instances” of witness conduct necessary to invoke Rule 608(b). (Doc. 78 at
PageID 1300–03.) And, at any rate, even if relevant, the probative value of Plaintiff’s
immigration status is substantially outweighed by the likely prejudicial effect on the
proceedings in the eyes of a jury. (Id. at PageID 1303.)
STANDARD FOR GRANTING A PROTECTIVE ORDER
A party “may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1). But upon a showing of
“good cause,” a court may issue an order “to protect a party or person from annoyance,
Doc. 75 at PageID 1267 (29:13–23).
Doc. 75 at PageID 1263 (14:24–15:5). Hernandez also did not answer how she arrived at her
deposition that day. (Doc. 75 at PageID 1263 (15:6–8), 1266 (26:4–27:12).)
embarrassment, oppression, or undue burden or expense, including . . . forbidding
inquiry into certain matters, or limiting the scope of disclosure or discovery to certain
matters[.]” Fed. R. Civ. P. 26(c)(1)(D); see Degen v. United States, 517 U.S. 820, 826
(1996) (referencing a district court’s “usual” authority to manage discovery in a civil
action, “including the power to enter protective orders limiting discovery as the interests
of justice require”).
The party requesting the protective order bears the burden of
establishing good cause. Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501
(W.D. Mich. 2005) (citing Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001)). To
establish good cause, the movant “must articulate specific facts showing ‘clearly defined
and serious injury’ resulting from the discovery sought and cannot rely on mere
conclusory statements.” Id. (quoting Nix).
A. Good Cause Showing
As discussed below, the Court finds that Plaintiff has established good cause and
is entitled to a protective order.
On cross-examination, Plaintiff and each eyewitness testified that he or she was
born in, or came to the United States from, Honduras. Questions followed regarding
citizenship and immigration status, which were challenged initially for relevance by
Plaintiff’s counsel and later avoided by Plaintiff with an assertion of Fifth Amendment
privilege. During Plaintiff’s deposition, counsel for County Defendants thought aloud
about whether Plaintiff lacked standing to bring this civil action “if he had no legal status
in this country.”
(Doc. 76 at PageID 1270 (7:17–8:23).)
No motion challenging
Plaintiff’s standing has been filed, however, and the Court notes that this line of
reasoning is at odds with the plain language of Section 1983, which provides a cause of
action to “any citizen of the United States or other person within the jurisdiction
thereof.” 42 U.S.C. § 1983 (emphasis added); see Artiga Carrero v. Farrelly, 270 F.
Supp. 3d 851, 862–63 (D. Md. 2017).
As the Court indicated during Plaintiff’s deposition, discovery related to his
citizenship, immigration status, social security number, and driver’s license are not
relevant to his right to recover for the alleged use of excessive force and failure to
receive medical assistance at the hands of County Defendants. Moreover, the Court is
mindful of the “in terrorem effect of inquiring into a party’s immigration status and
authorization to work in this country when irrelevant to any material claim because it
present a ‘danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.’”
Rengifo v. Erevos Enters., Inc., No. 06 Civ. 4266(SHS)(RLE), 2007 WL 894376, at *2
(S.D.N.Y. Mar. 20, 2007) (quoting Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191,
193 (S.D.N.Y. 2002)). The plaintiff in Rengifo brought suit under the federal Fair Labor
Standards Act and the state equivalent to recover unpaid overtime wages, as well as
under 42 U.S.C. § 1981 alleging race discrimination.
Id. at *1.
Even though an
employment case, Rengifo’s “immigration status and authority to work” was found to be
a “collateral” issue. Id. at *2. Good cause supported a protective order, because,
otherwise, an undocumented worker might withdraw from the suit rather than produce
documents that could lead to deportation. Id. (citations omitted); see Galaviz-Zamora,
230 F.R.D. at 502. The case for a protective order is even more compelling here, where
Plaintiff Pineda’s employment is completely unrelated to whether he was a victim of
excessive force and a lack of medical assistance.
County Defendants contend that Plaintiff’s immigration status is relevant on the
issue of credibility. While the Court agrees with the general proposition that a witness’s
credibility is always at issue, “unlimited exploration on the subject is [not] permitted.”
Galaviz-Zamora, 230 F.R.D. at 502 (citing Fed. R. Evid. 403, 404, 608) (emphasis in
original). Especially with respect to immigration status, the chilling effect on litigants
bringing suit and witnesses coming forward far outweighs “whatever minimal legitimate
value such material holds for Defendants.” Id. When immigration status does not
motivate the litigation or affect a party’s right to relief, “courts have frequently rejected
the notion that immigration status is itself important enough evidence of [a plaintiff’s]
broader credibility to be discoverable.” Cazorla v. Koch Foods of Miss., LLC, 838 F.3d
540, 555–56 (5th Cir. 2016) (footnotes omitted).
Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004) is instructive. In that Title
VII employment case alleging disparate impact discrimination based on national origin,
a magistrate judge issued a protective order and barred all discovery as to the
immigration status of the 23 plaintiffs. The district court denied NIBCO’s Rule 72(a)
motion, holding that the magistrate judge’s ruling was neither clearly erroneous nor
contrary to law. 17 On interlocutory appeal, the Ninth Circuit affirmed:
Granting employers the right to inquire into workers’ immigration
status in cases like this would allow them to raise implicitly the
threat of deportation and criminal prosecution every time a worker,
Federal Rule of Civil Procedure 72(a) provides:
When a pretrial matter not dispositive of a party’s claim or defense is referred to
a magistrate judge to hear and decide, the magistrate judge must promptly
conduct the required proceedings and, when appropriate, issue a written order
stating the decision. A party may serve and file objections to the order within 14
days after being served with a copy. A party may not assign as error a defect in
the order not timely objected to. The district judge in the case must consider
timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.
documented or undocumented, reports illegal practices or files a
Title VII action. Indeed, were we to direct district courts to grant
discovery requests for information related to immigration status in
every case involving national origin discrimination under Title VII,
countless acts of illegal and reprehensible conduct would go
Even documented workers may be chilled by the type of
discovery at issue here. Documented workers may fear that their
immigration status would be changed, or that their status would
reveal the immigration problems of their family or friends; similarly,
new legal residents or citizens may feel intimidated by the prospect
of having their immigration history examined in a public proceeding.
Any of these individuals, failing to understand the relationship
between their litigation and immigration status, might choose to
forego civil rights litigation.
Id. at 1065 (footnote omitted). The chilling effect is no less here, where Plaintiff is suing
members of local law enforcement—with ostensible ties to federal immigration
authorities—as opposed to a private business.
County Defendants rely on Rule 608(b), which provides:
Except for a criminal conviction under Rule 609, extrinsic evidence
is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for
truthfulness. But the court may, on cross-examination, allow them
to be inquired into if they are probative of the character for
truthfulness or untruthfulness of[ ] the witness . . .”
But in the absence of County Defendants identifying “specific
instances” of Plaintiff’s conduct, reliance on this evidentiary rule, and the cases in which
this manner of cross-examination has been allowed, is wholly misplaced. It simply does
not inform the decision of whether a court should allow inquiry into a witness’s
immigration status in the first instance.
United States v. Farias-Farias, cited by County Defendants, explains a proper
application of Rule 608(b). 925 F.2d 805 (5th Cir. 1991).
Criminal defendant Farias
was arrested at the United States-Mexico border in El Paso, Texas, and charged with
importation of marijuana and possession of marijuana with intent to distribute. Id. at
807. According to a customs agent, in response to questioning following his arrest,
Farias stated that he had only one previous arrest for drunk driving. Fast forward to the
trial where Farias testified in his own defense, denying any knowledge of the marijuana
hidden in the vehicle he was driving and indicating, on cross-examination, that he told
the customs agent that he had been arrested “two or three times or four.”
government then called the customs agent, who testified that Farias told him of only one
arrest. Id. at 808–09. On Farias’ appeal of his conviction, the court found this inquiry of
the customs agent to be proper under Rule 608(b):
During his direct testimony, [Farias] denied knowledge of the
marijuana hidden in the Ranchero. He attempted to portray to the
jury that he was a truthful person. Farias told the agents at the
border he had no knowledge of the marijuana and he told the jury
he had no knowledge of the marijuana. This attempted to give the
jury the impression that he was telling the truth at the border and
that he was telling the truth at trial. The government was entitled to
try and show that Farias did not tell the whole truth at the border
and consequently was not telling the truth at trial.
Id. at 809 (footnote and citation omitted).
County Defendants cite two excessive force cases in which cross-examination
into a plaintiff’s immigration status was allowed, but neither is remotely apposite. In
Bonilla v. Jaronczyk, the trial court allowed corrections officers accused of excessive
force to inquire into a specific instance of conduct on the part of the plaintiff, the use of
false papers to reenter the United States illegally, to attack his character for truthfulness
pursuant to Fed. R. Evid. 608(b)(1). 354 F. App’x 579, 583 (2d Cir. 2009) (“Any other
references to Bonilla’s immigration status occurred in the context of defendants’ inquiry
into his prior convictions, evidence of which was admissible under Federal Rule of
In Hernandez v. Kelly, the court allowed in the plaintiff’s prior
conviction for illegal reentry into the United States under Rule 609(a)(1) 18 as it relates to
credibility, but concomitantly ruled that defendants’ request to introduce through Rule
608(b)(1) other evidence of the plaintiff’s illegal status—overstay of a visa—was denied
as “cumulative and unnecessary.”
No. 09-CV-1576 (TLM)(LB), 2011 WL 2117611, at
*2, *3–4 (E.D.N.Y. May 27, 2011).
To summarize, the Court finds that Plaintiff’s immigration status, legal or illegal,
is not relevant to his civil rights claims. Also irrelevant is the immigration status of
eyewitnesses Avila, Gomez, and Hernandez. But even if relevant, the Court concludes
that Plaintiff is entitled to a protective order from any discovery that might reveal his (or
the eyewitnesses’s) immigration status, with the in terrorem effect of possible job loss,
criminal prosecution, and deportation serving as the necessary “good cause.” See Fed.
R. Civ. P. 26(c)(1)(D). The public interest in allowing citizens and other persons to
enforce their rights under Section 1983 substantially outweighs Defendants’ interest in
testing Plaintiff’s (or the eyewitnesses’s) credibility.
894376, at *3.
See, e.g., Rengifo, 2007 WL
This protective order prohibits further inquiry about a witness’s
citizenship, whether he or she has a social security number, a driver’s license or other
form of government identification, and the name of his or her employer. However, at
trial Plaintiff will not be permitted to testify that he could not work for the month following
the injury he sustained at the Inner Circle nightclub. Although such testimony would be
offered only in support of the seriousness of the injury Plaintiff says he suffered, in the
Titled “Impeachment by Evidence of a Criminal Conviction,” Rule 609 sets forth the rules that “apply to
attacking a witness’s character for truthfulness by evidence of a criminal conviction[.]” Fed. R. Evid.
absence of knowing the name of Plaintiff’s employer, Defendants cannot verify this
information and hence cannot cross-examine him effectively in this regard.
B. Fifth Amendment Protection
While Plaintiff is entitled to a protective order regarding discovery directed toward
his (and the eyewitnesses’s) immigration status, his liminal motion is premature.
In addition to a protective order, Plaintiff also asks the Court to prohibit
Defendants from: (1) asking questions on cross-examination that are intended—or by
their nature likely—to cause Plaintiff or the eyewitnesses to invoke their Fifth
Amendment rights against self-incrimination; (2) making any reference to the Fifth
Amendment in any statement or argument to the jury; and (3) arguing to the jury that it
may draw a negative inference as a result of any witness’s invocation of his or her Fifth
Amendment right. (Doc. 70 at PageID 1234–35.)
“When a witness claims his privilege, a natural, indeed an almost inevitable,
inference arises as to what would have been his answer if he had not refused.” United
States v. Maloney, 262 F.2d 535, 537 (2d Cir. 1959). “If the prosecution knows when it
puts the question that [the witness] will claim the privilege, it is charged with notice of
the probable effect of his refusal upon the jury’s mind.” Id. Plaintiff understandably
worries that a jury could draw an unfavorable, and constitutionally improper, inference
based on his refusal to answer questions about his immigration status. And while the
undersigned agrees with the general principle that Defendants should not be permitted
to convert the Fifth Amendment right not to testify against oneself “from a shield to a
sword,” any ruling on this matter must come from the jurist assigned to preside over the
trial. Accordingly, Plaintiff’s liminal motion is denied without prejudice to renew before
the Honorable Susan J. Dlott at the appropriate juncture in accord with her Standing
Order on Civil Procedures. 19
Based on the foregoing reasons, Plaintiff’s Motion for a Protective Order is
No Defendant may further inquire, either at trial or otherwise in this
litigation, into Plaintiff’s (or any other witness’s) immigration status, which would include
questions about citizenship, a social security number, a driver’s license or other form of
government identification, and the name of his or her employer. 20 In tandem with this
protective order, Plaintiff may not testify at trial regarding the length of any absence
from work that he attributes to the injury he sustained at the Inner City nightclub.
Because it is premature, Plaintiff’s liminal motion regarding Fifth Amendment concerns
is DENIED WITHOUT PREJUDICE to renew before the presiding judge.
IT IS SO ORDERED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
As noted, this protective order expressly extends to nonparty eyewitnesses Luis Alonzo Avila, Juana
Elia Gomez, and Dilcia Arias Hernandez.
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