Shelton v. Bledsoe et al
MEMORANDUM (Order to follow as separate docket entry) re 224 Order (memorandum filed previously as separate docket entry) Signed by Honorable Malachy E Mannion on 3/21/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:11-0368
WARDEN BLEDSOE, et al.,
Presently before the court is Plaintiff’s motion for protective order, filed
pursuant to Fed.R.Civ.P. 26(c)(1)(E), in which Plaintiff requests that: (1) the
only individuals allowed to attend each Defendant’s or witness’s2 deposition
are the deponent, court reporter, and counsel; (2) Defendants’ and witnesses’
common counsel may not inform Defendants or witnesses, orally or through
provision of a transcript, of the substance of another Defendant’s or witness’s
deposition testimony; (3) Defendants and witnesses are barred from
discussing their deposition testimony with each other until after the completion
of all depositions in the case; and (4) a Defendant or witness may not obtain
This case was reassigned to the undersigned on November 3, 2016.
In addition to the remaining Defendants in this case, Plaintiff plans to
depose the following correctional officers, ranking officers, or medical
personnel employed at USP-Lewisburg: ME Potter, Lt. Benfer, Lt. Jordon, SO
Murray, SOS Lesho, and Paramedic B. Walls. (See Doc. 221). These
individuals filed reports in connection with the use of force incident that is the
subject matter of this lawsuit. Id.
a copy of his or her own or another Defendant’s or witness’s deposition
transcript until after the completion of all depositions in this case. (Doc. 221).
For the reasons set forth below, Plaintiff’s motion for protective order will
On February 25, 2011, Plaintiff, Norman Shelton, an inmate formerly
confined in the United States Penitentiary, Lewisburg, Pennsylvania (“USPLewisburg”), filed the above captioned Bivens3 action. (Doc. 1).
By Memorandum and Order dated February 12, 2012, the Court granted
summary judgment in favor of all Defendants and closed the above captioned
action. (See Docs. 136, 137).
Shelton filed an appeal to the United States Court of Appeals for the
Third Circuit, and on March 13, 2013, the Court of Appeals affirmed in part
and reversed as to Plaintiff’s claim that Defendants allegedly used excessive
force against him on August 30, 2009. (See Doc. 147). Thereafter, the case
was re-opened and the parties were permitted to conduct additional
discovery. To date, the depositions of Benfer, Galletta, Whitaker, Heath,
Murray, and Lesho have been completed. Four additional depositions are
scheduled for future dates.
Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 397 (1971).
On February 23, 2017, Plaintiff filed the instant motion for a protective
order. (Doc. 220). In support of his motion for a protective order, Plaintiff
relies upon the following three cases: Dade v. Willis, No. Civ. A. 95-6869,
1998 WL 260270 at *1 (Apr. 20, 1998); McKenna v. City of Phila., Nos. Civ.
A 98-5835, 99-1163, 2000 WL 1781916 (E.D. Pa. Nov. 9, 2000); and Smith
v. Ramsey, 2:13-cv-00326, 2016 WL 3059375, (E.D. May 31, 2015). All three
cases involve the same type of Defendant, Philadelphia police officers.
In Dade v. Willis, No. Civ. A. 95-6869, 1998 WL 260270, at *1 (Apr. 20,
2998), the plaintiff alleged that he was arrested by two Philadelphia police
officers. During the arrest one of the officers allegedly tripped the plaintiff
causing his pants to fall down, and then the other allegedly pushed him to the
curb, thereby causing his genitals to be cut. The court noted under previous
Rule 26(c)(5) of the Federal Rules of Civil Procedure, “a court may, on good
cause shown, issue a protective order requiring that a deposition be
conducted ‘with no one present except persons designated by the court.’” Id.,
at *1 (citing Fed.R.Civ.P. 26(c)(5)). The plaintiff sought to limit the depositions
to just the party to be deposed, counsel, and the court reporter, and prevent
counsel for the defendants from informing the other party about the testimony.
The Dade court noted a judge will only exclude a party from a deposition
if there are “extraordinary circumstances.” Id. (quoting 8 Wright and Miller,
Federal Practice And Procedure, §2041, at 536 (1994). To come to this
conclusion, courts must rigorously analyze the parties and issues involved
and require a specific showing by the movant. Id. (citing Galella v. Onassis,
487 F.2d 986, 997 (2d Cir.1973) (holding excluding parties should be ordered
rarely); BCI Commun. Sys., Inc. v. Bell Atlanticom Sys., Inc., 112 F.R.D. 154,
160 (N.D. Ala.1986) (holding plaintiff must show more than “ordinary garden
variety or boilerplate ‘good cause’ facts which will exist in most civil litigation”);
Kerschbaumer v. Bell, 112 F.R.D. 426, 426–427 (D.D.C.1986) (noting that
courts should only bar parties from attending depositions in very limited
That court found extraordinary circumstances because the civil rights
claims were matters solely within the knowledge of the Philadelphia police
officers, and credibility is at issue. The defendant officers were also partners
on the police force and there was a risk that the testimony of one would
consciously or subconsciously influence the testimony of the other. The court
found that one officer may bolster or eliminate inconsistencies. The court
made note that these were police officers and they had an unfair advantage
over someone in jail. Id., at *2-3. Thus, the court granted the protective order
requested by the plaintiff.
In McKenna v. City of Phila., Nos. Civ. A 98-5835, 99-1163, 2000 WL
1781916 (E.D. Pa. Nov. 9, 2000), the defendants in an employment
discrimination matter filed a motion to prevent the plaintiffs from attending
their depositions, discussing their testimony, reading each other’s transcript,
and preventing counsel from informing each plaintiff about the substance of
the other’s testimony. The court issued the order because the plaintiffs had
prior relationships, working at the Philadelphia Police Department and many
of the retaliatory acts happened at the police station. Id., at 1.
In Smith v. Ramsey, 2:13-cv-00326, 2016 WL 3059375, (E.D. May 31,
2015), the plaintiff alleged that he encountered three police officers on the
streets of Southwest Philadelphia. One officer allegedly struck the left side of
the plaintiff’s face with a hard object before throwing him to the ground and
placing him in handcuffs. Five other officers arrived on the scene and the
plaintiff claims that, while he was faced down on the ground with handcuffs
behind his back, these five began to kick him in his rib area. Another officer
also allegedly stomped on the plaintiff’s face, and two other officers pulled
and twisted his fingers. Id., at *1.
The plaintiff sought “the entry of a protective order that would restrict
who may be present at the depositions of each of the Defendant police
officers and prevent the Defendants from learning of each other’s testimony
until they have all been deposed.” Id. The court asked the plaintiff to provide
his reasoning in a letter to the court. Id. The court noted the letter was
attached to the memo, but on WESTLAW, the letter does not appear. Id.
The court noted that it may issue an order “‘designating the person who
may be present while . . . discover is conducted. Id. (quoting Fed. R. Civ. P.
26(c)(1)(E)). The defendant officer argued that the protective order should not
be entered because they have already testified before the Philadelphia
internal affairs and these recorded statements would prevent them from
changing their stories. Id., at *2. The court rejected this argument because the
transcripts were less than 3 pages, and there were less than 15 follow-up
questions. The court found that the “intricacies” of the night in question would
be probed by plaintiff’s counsel and there was a risk that even subconsciously
the witnesses’ testimony may be changed. The court granted the plaintiff’s
motion and ordered a protective order requested by the plaintiff. Id., at *3.
Plaintiff argues that the circumstances and relationship between the
parties in the instant case fit squarely with those present in Smith, Dade, and
McKenna. (Doc. 221 at 4-5). Plaintiff claims that Defendants and all other
witnesses, except for Plaintiff, who will give depositions and testify at trial are
correctional officers or employees of USP-Lewisburg, and that other than
inmate Graham—the inmate who initially attacked Plaintiff—Defendants and
their co-workers at USP-Lewisburg are the only witnesses to the events that
happened inside of Plaintiff’s cell. Id. Plaintiff believes that these individuals,
as law enforcement officers and medical personnel, may enjoy authority with
the jury that stands in contrast to Plaintiff’s inmate status. Id. Moreover, he
claims that given that Defendants and the witnesses are colleagues at the
same prison facility—a high-stress environment very similar to a police
department—they may have a camaraderie like that contemplated by the
McKenna court. Id. Additionally, he claims that although incident reports filed
in this matter suggest that a videotape was made at some point after the
incident and during the course of prison officials’ investigation of the use of
force against Plaintiff, nothing in the reports suggest that surveillance video
exists that captured the use of force incident inside of Plaintiff’s cell, and the
testimony of the parties and witnesses will therefore play a central role in the
case, and a credibility battle is likely to result. Id. Lastly, Plaintiff argues that
due to the passage of time since the incident at issue, the difficulty of
remembering events after a prolonged period of time suggests there is an
increased likelihood that a Defendant’s testimony may be influenced, even if
unintentionally, by the other Defendants’ deposition testimony. Id.
Fed.R.Civ.P. 26(c)(1)(E) provides that “[ t] he court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including ... designating the persons
who may be present while the discovery is conducted ....” Rule 26(c) has
been described as “highly flexible, having been designed to accommodate all
relevant interests as they arise .... [T]he ‘good cause’ standard in the Rule is
a flexible one that requires an individualized balancing of the many interests
that may be present in a particular case.” See Gill v. Gulfstream Park Racing
Ass’n., Inc., 399 F.3d 391, 402 (1st Cir.2005) (quoting United States v.
Microsoft Corp., 165 F.3d 952, 959–60 (D.C. Cir.1999)).
Absent a court order to the contrary, parties may attend depositions,
and “due to the heightened interests of parties in the proceedings, ‘factors
that might justify exclusion of non-parties from a deposition might not be
sufficient to exclude parties because of the parties’ more substantial interests
in being present’.” Dade, supra (quoting Hines v. Wilkinson, 163 F.R.D. 262,
266 (S.D.Ohio 1995)). For this reason, courts generally are loath to exclude
parties from depositions in the absence of “compelling or exceptional
circumstances.” BCI Commc’n Sys., Inc. v. Bell Atlanticom Sys., Inc., 112
F.R.D. 154, 160 (N.D.Ala.1986); see also Galella v. Onassis, 487 F.2d 986,
997 (2d Cir.1973) (stating that “such an exclusion should be ordered rarely
indeed”); Kerschbaumer v. Bell, 112 F.R.D. 426, 426 (D.D .C.1986) (“Most
courts have granted protective orders to bar parties from attending
depositions only in very limited circumstances.”).
In the present case, the Court finds that Plaintiff has not adequately
demonstrated that Defendants have falsified testimony or would be likely to
do so. Moreover, the Court notes that Plaintiff is represented by skilled and
able counsel. Finally, sequestration of Defendants, who are coworkers, at
deposition will not necessarily avoid the harm Plaintiff seeks to prevent. In
sum, plaintiff has failed to offer information sufficient to meet his burden of
persuasion pursuant to Fed.R.Civ.P. 26(c). The Court’s discretion should be
invoked sparingly and the moving party is required to demonstrate good
cause for sequestration. See Kerschbaumer v. Bell, 112 F.R.D. 426
(D.D.C.1986). The weight of the authority holds that parties should not be
excluded from depositions “because of some inchoate fear that perjury would
otherwise result.” Laws v. Cleaver, No. 3:96CV92 (JBA)(JGM), 2000 WL
87160, at *1 (D.Conn. Jan. 6, 2000) (quoting Kerschbaumer, 112 F.R.D. at
427); see also Baylis v. Pirelli Armstrong Tire Corp., No. 3:97 CV 729 PCD,
1997 WL 1052016, at *2 (D.Conn. Oct. 31, 1997) (“Tactical considerations
such as a desire to secure the independent recollection of witnesses or avoid
the tailoring of testimony are per se not compelling and will not justify
exclusion [of parties]. We will not restructure the adjudicative process to
manufacture opportunities for counsel to ‘catch’ witnesses in inconsistent
statements.... For such we must rely on the competence and skill of counsel
in cross-examination.” (quoting Visor v. Sprint/United Management Co., No.
CIV.A. 96–K–1730, 1997 WL 567923, at *3 (D.Colo. Aug. 18, 1997))).
Simply put, credibility is an issue in every case, and without a specific,
particularized reason for believing that these Defendants are any more likely
than the average defendants to provide perjurious testimony, the Court is not
willing to exclude Defendants from proceedings in a suit they have been
called upon to defend. See Kerschbaumer, 112 F.R.D. at 426 (“Nor can the
Court discover any principle to support granting plaintiffs’ motion here but
denying similar motions in the numberless other cases where credibility looms
large.”). Testimony of one defendant closely mirroring that of another is grist
for the adversarial-system mill, which serves as the traditional and well-tested
safeguard for perjury. Picard v. City of Woonsocket, No. CA 09-318 S, 2011
WL 3740673, at *4 (D.R.I. Aug. 23, 2011). As such, Plaintiff has failed to offer
information sufficient to meet his burden of persuasion pursuant to
Fed.R.Civ.P. 26(c), and his motion for protective order will be denied.
An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: March 21, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2011 MEMORANDA\11-0368-01.wpd
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