Riis et al v. Does One through Twenty et al
OPINION AND ORDER granting in part 15 Motion for Protective Order; granting 19 Motion to Quash or Modify Subpoena or for Protective Order. Signed by U.S. District Judge Roberto A. Lange on 11/9/17. (JLS)
UNTTED STATES DISTRICT COURT
NOV 0 9 2017
DISTRICT OF SOUTH DAKOTA
JASON RHS,CODY HOLCOMBE,AARON
HENNING,GENA ALVAREZ,and DIRK
OPINION AND ORDER GRANTING IN PART
MOTIONS FOR PROTECTIVE ORDERS
JOHN DOES ONE THROUGH TWENTY,
MATTHEW SHAVER,IN HIS PERSONAL
CAPACITY; THE CITY OF PIERRE, and THE
CITY OF SISSETON,
Summary of Facts Relevant to Motions
Plaintiffs Jason Riis, Cody Holcombe, Aaron Henning, Gena Alvarez and Dirk Sparks
(collectively "Plaintiffs") sued John Does One Through Twenty identified as unnamed police officers of
the cities of Pierre and Sisseton, Pierre police officer Matthew Shaver, the City of Pierre and the City of
Sisseton (collectively "Defendants"). Plaintiffs invoke federal question jurisdiction and allege claims
under 42 U.S.C. §§ 1983 and 1985 and Monell v. Department of Social Services of Citv of New York.
436 U.S. 658 (1978). Doc. 1 at
86-105. Plaintiffs recently have been granted leave to amend then-
complaint to add the South Dakota Highway Patrol as a defendant. Docs. 27, 28. Each of the Plaintiffs
allegedly underwent forced catheterization to obtain urine samples at the behest of law enforcement.
When the forced catheterizations occurred. Plaintiffs Riis, Holcombe and Sparks were in the custody of
Pierre police; Plaintiff Henning was in the custody of Sisseton police; and Plaintiff Alvarez was in the
custody of the South Dakota Highway Patrol. Doc. 1 at
41-84. According to the Complaint, law
enforcement had obtained search warrants to obtain a urine sample from four ofthe five Plaintiffs', but no
court order specifically allowing or consent to catheterization of any of the Plaintiffs. Doc. 1. Plaintiffs
seek monetary and injunctive relief.
Part of the Complaint, and in turn the newly filed Amended Complaint, alleges a civil conspiracy.
Doc. 1 at
31-40, and 42 U.S.C. § 1985 is explicitly cited in the Complaint, Doc. 1 at f 88. Plaintiffs
allege that law enforcement in various cities and counties in South Dakota have conspired through written
and oral communications to justify and spread the practice of forced catheterization to obtain urine
samples, and Plaintiffs specifically allege the City of Winner and Tripp County, the City of Lake Andes
and Charles Mix Coimty, and the cities of Mobridge, Wagner and Platte to be conspirators with the
Defendants. Doc. 1 at
31-34. The Complaint quotes what two attorneys are reported to have told the
Sioux Falls Argus Leader about forced catheterization practices in south central South Dakota. Doe. 1 at
TITI 35-38. One of those attorneys—Lake Andes attorney Timothy Whalen—reportedly said that police
have the Wagner and Platte hospitals conduct forced catheterizations to collect urine samples "on a
regular basis" without anesthesia causing "a lot of screaming and hollering." Doc. 1 at T| 35; Doc. 26-2.
On October 16, 2017, Plaintiffs issued subpoenas duces tecum to the Administrator of the Platte
Hospital and the Administrator ofthe Wagner Community Memorial Hospital for the following:
1. All medical records for every catheterization, or obtaining a urine sample, conducted
between June 29, 2014, and the present, at the request of a law enforcement agency
Before producing these documents, you are required to delete all personally
identifying information, and all information that HIPAA requires you to delete, so as
not to disclose the identity of the person.
2. All communication (electronic and otherwise) between June 29, 2014, and the
present, with law enforcement agencies or officers concerning catheterization, or
obtaining a urine sample.
3. All written policies and instructional materials on obtaining a urine sample, that were
in effect at any time between June 29, 2014, and the present.
'One of the search warrants authorized a urine sample from anyone present when a search warrant for a
residence was executed. Doc. 1 at ^ 63.
4. All written policies and instructional materials on catheterization, or obtaining a urine
sample at the request of law enforcement agencies or officers, that were in effect at
any time between June 29, 2014, and the present.
5. All training or instructional materials regarding catheterization, or obtaining a urine
sample at the request of law enforcement agencies or officers, and under what
circumstances catheterization, or obtaining a urine sample, should be considered,
attempted, or done at the request oflaw enforcement agencies or officers.
On October 16, 2017, Plahitiffs also issued subpoenas duces tecum to the Police Chief of Lake
Andes; the Police Chief ofthe City of Mobridge; the Police Chief ofthe City of Platte; the Police Chief of
the City of Wagner; the Police Chief of the City of Winner; the Sheriff of Charles Mix County; the
Sheriff of Hughes County; the Sheriff of Roberts County; the Sheriff of Tripp County (collectively "other
law enforcement agencies"); the South Dakota Highway Patrol; and attorney Whalen for the following
1. The affidavit for search warrant, search warrant, and return for every catheterization,
or obtaining a urine sample, conducted between June 29, 2014, and the present.
2. All police reports for every detention, arrest, or incarceration that included a
catheterization, or obtaining a urine sample, between June 29, 2014, and the present.
3. All videotapes of every catheterization, or obtaining a urine sample, between June 29,
2014, and the present.
4. All communication (electronic or otherwise) between June 29, 2014, and the present,
with law enforcement agencies or officers concerning catheterization, or obtaining a
5. All written policies or instructional materials on catheterization, or obtaining a urine
sample, that were in effect at any time between June 29, 2014, and the present.
6. All training or instructional materials regardhig catheterization, or obtaining a urine
sample, and under what circumstances catheterization, or obtaining a urine sample,
should be considered, attempted, or done.
On October 24, 2017, Defendants Shaver and the City of Pierre filed a Motion for Protective
Order, Doc. 15, in which Defendant City of Sisseton joined. Doc. 22. Attorney Whalen filed a Motion to
Quash or Modify Subpoena or for Protective Order. Doc. 19. Plaintiffs opposed these motions. Docs.
24, 25. On November 7, 2017, this Court held a hearing on those motions,
Rule 26(b)(1) sets the seope of diseovery as follows: "Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or defense" subject to certain
proportionality limitations. Fed. R. Civ. P. 26(b)(1). Defendants argue that the proposed discovery is not
relevant to any claim or defense, while Plaintiffs argue that the materials sought in the subpoenas duces
teeum relate to their conspiracy claim. Naturally, the scope of discovery under Rule 26(b) is extremely
broad. Stock v. BNSF Rv. Co.. No. 4:14-CV-04074-RAL, 2015 U.S. Dist. Lexis 124063 at *4 (D.S.D.
September 17, 2015). The reason for the broad scope of discovery is that "[mjutual knowledge of all the
relevant facts gathered by both parties is essential to proper litigation. To that end, either party may
compel the other to disgorge whatever facts he has in his possession." 8 Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2007 (3d ed. 2017) (hereinafter "Wright & Miller") (quoting
Hir.kmari v. Tavlor. 329 U.S. 495, 507-08 (1947)). However, limiting diseovery to claims and defenses
means that "[a] plaintiff may not use a lawsuit as a tool for 'a fishing expedition' to seek grounds for
another lawsuit." Gates v. Black Hills Health Care Svs.. No. CIV 11-3013-RAL, 2013 WL 1683654, at
""l (D.S.D. April 17, 2013)(quoting E.E.O.C. v. CRST Van Expedited. Inc., 679 F.3d 657, 675 (8th Cir.
2012)); see also Hofer v. Mack Trucks. Inc.. 981 F.2d 377, 380 (8th Cir. 1992)(noting that the liberal
scope of Rule 26 does not allow parties tO' engage in "fishing expeditions" and mandating "[sjome
threshold showing of relevance" for discovery requests).
Rule 26(e)(1) grants a district court authority, for good cause, to issue a protective order and
provides a list of potential remedies to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). Either a "party or any person from
whom discovery is sought may move for a protective order," so both Defendants and Whalen have the
opportunity to seek such a protective order. Fed. R. Civ.- P. 26(c)(1). Both Whalen and in response
Plaintiffs seek expenses or sanctions against the other, which this court has discretion to award. Fed. R.
Civ. P. 26(e)(3), 37(a)(5).
Ruling on the motions requires this Court to determine the proper seope of diseovery here. The
advisory committee's note to the 2000 amendments to Rule 26(b)(1) provides guidance for this task:
Under the amended provisions, if there is an objection that discovery goes beyond
material relevant to the parties' claims or defenses, the court would become involved to
determine whether the discovery is relevant to the claims or defenses and, if not, whether
good cause'exists for authorizing it so long as it is relevant to the subject matter of the
action^....The rule change signals to the court that it has the authority to confine
discovery to the claims and defenses asserted in the pleadings, and signals to the parties
that they have no entitlement to discovery to develop new claims or defenses that are not
already identified in the pleadings....When judicial intervention is invoked, the actual
scope of discovery should be determined according to the reasonable needs of the action.
The court may permit broader discovery in a particular case depending on the
s circumstances of the case, the nature of the claims and defenses, and the scope of the
See Fed. R. Civ. P. 26(b) advisory committee's note to 2000 amendment. The key inquiry for
this Court is what, if any, information requested by Plaintiffs through the subpoenas duces tecum
meets the reasonable needs of this action.
Plaintiffs' Complaint, and newly filed Amended Complaint, allege a conspiracy involving law
enforcement including the Defendants and the cities of Wagner, Platte, Mobridge, Lake Andes and
Winner as well as Charles Mix and Tripp Counties. Plaintiffs' Complaint does not allege that attorney
Whalen or any medical center is part of that conspiracy, although Whalen and the two medical providers
subject to the subpoenas duees tecum appear to have knowledge regarding forced catheterizations that
occurred in south central South Dakota. Plaintiffs have made no showing or even allegation that a
eriminal defense attorney fi-om central South Dakota or medical providers have information regarding
whether there is or is not some conspiracy among the named Defendants and other municipal or county
law enforcement. Whalen and the two medical providers subject to the subpoenas duces tecum have no
involvement with the Plaintiffs or the forced catheterization of these five Plaintiffs. Thus, in this
particular case at this particular time, a protective order will issue under Rule 26(c)(1)(A) forbidding the
discovery from the two medical providers and Whalen because Plaintiffs have failed to show that what is
^ The 2015 amendments to Rule 26 deleted the provision in 26(b)(1) authorizing the court to order, for
good cause, discovery of any matter relevant to the subject rnatter involved in the action, as the purpose of
that provision was largely addressed by the proportionality considerations which had been restored to
26(b)(1) from 26(b)(2)(C)(iii). See Fed. R. Civ^ P. 26(b) advisory committee's note to 2015 amendment.
While of academic interest, the distinction between subject matter and relevant information that is
proportional to the needs of the case is not of particular importance here, as Plaintiffs' discovery requests
relate to the conspiracy claim which they have made in their Complaint and Amended Complaint.
being sought from those three "is relevant to any claim or defense" of a conspiracy involving the
Whalen's request for an award of expenses is denied. Whalen's filings with this Court omitted
that Plaintiffs' attorney had confined the subpoena duces tecum to address Whalen's concems, and
Whalen exaggerated the burden he faced in disclosing information ultimately sought by Plaintiffs'
coimsel, which appears to have related to "perhaps as few as" three of his clients. Whalen's public
comments about forced catheterization make it clear that he had information about that practice occurriug
in south central South Dakota, and the subpoena duces tecum to him was not calculated to be
burdensome, oppressive, annoying or embarrassing.
The other law enforcement agencies subpoenaed are alleged to have been involved in a
conspiracy with the Defendants according to the Complaint and the Amended Complaint. The South
Dakota Highway Patrol just this week was added as a party defendant to the case through the Amended
Complaint. A party to a federal civil case generally and absent peculiar circumstances makes initial
disclosures under Rule 26(a)(1) to begin the discovery process. Fed. R. Civ. P. 26(a)(1). For a new party
first served or added after a Rule 26(f) conference has occurred, the disclosures are due 30 days after
service or joinder of that party. Fed. R. Civ. P. 26(a)(1)(D). The South Dakota Highway Patrol no doubt
will have counsel and make its initial disclosures in this case, and this Court believes that it is proper to
allow time for retention of counsel and for that counsel to be involved in responding to the subpoena
duces tecum to the South Dakota Highway Patrol. Thus, under Rule 26(c)(1)(B), a protective order will
enter allowing the South Dakota Highway Patrol until 30 days after service of the Amended Complaint
both to make its initial disclosures and to respond to the subpoena duces tecum.
The remaining law enforcement agencies face subpoenas duces tecum that relate to the
conspiracy allegations. Of course, a plaintiff may not broaden the scope of permissible discovery simply
by having impertinent or extraneous allegations in the complaint. The allegations of a conspiracy by
these five plaintiffs involving law enforcement agencies with whom they had no contact, on initial blush,
seem a bit impertinent or extraneous, as if calculated toward possibly finding other plaintiffs to broaden
the suit. Thus, it is important to evaluate whether the conspiracy allegations are part of a viable elaim or
simply inserted into the Complaint to facilitate a fishing expedition. This is a question that no party
drreetly addressed in briefing.
A conspiraey claim under 42 U.S.C. § 1985 requires proof of some meeting of the minds among
defendants resulting in an agreement, express or tacit, to achieve an unlawful end—in this ease, allegedly
depriving Plaintiffs of eonstitutional rights to be free from unlawful and unreasonable searehes and
seizures. 42 U.S.C. § 1985; see also Barstad v. Murrav Ctv. 420 F.3d 880, 887 (8th Cir. 2005); Seale v.
Madison Ctv. 929 F. Supp. 2d 51, 71 (N.D.N.Y 2013). A complaint need not name all the alleged
conspirators to withstand a motion to dismiss.
Means v. Wilson. 522 F.2d 833, 840^1 (8th Cir.
1975); Kwoun v. Southeast Mo. ProFl Standards Review Ore.. 622 F. Supp. 520, 529 (E.D.Mo. 1985);
Milner v. NatT Sehool of Health Tech.. 409 F. Supp. 1389, 1395 (E.D.Pa. 1976). However, a elaim of
conspiraey under § 1985 requires that "a plaintiff 'must allege with particularity and specifically
demonstrate with material facts that the defendants reached an agreement.'" Kellv v. Citv of Omaha.
Neb.. 813 F.3d 1070, 1077-78 (8th Cir. 2016)(quoting Citv of Omaha Emps. Betterment Ass'n v. Citv of
Omaha. 883 F.2d 650, 652(8th Cir. 1989)). This requires "allegations of a conspiracy [be] pleaded with
sufficient speeificity and factual support to suggest a meeting of the minds directed toward an
unconstitutional action." Id. at 1078 (alteration in original) (internal citation omitted). Plaintiffs'
allegations of conspiraey are thin in nature and lack specifics as to any agreement, making the decision on
the legitrmaey of the allegations difficult at this time. Doe. 1 at TfTj 31^0;
Johnson v. Perdue. 862
F.3d 712, 717-18 (8th Cir. 2017)(affirming dismissal of a conspiracy claim under 42 U.S.C. § 1985
where a plaintiffs complaint "include[d] no facts suggesting the individual defendants reaehed an
agreement" but rather "relie[d] on eonelusory allegations that defendants" engaged in a conspiracy.);
Francis v. Giacomelli. 588 F.3d 186, 196-97(4th Cir. 2009)(same).
Defendants have filed no motion to strike allegations or dismiss the conspiracy claim during the
nearly five months this case has been pending. Defendants instead concede that part of request four in the
subpoenas duces tecum—seeking "[a]ll commxmication (electronic and otherwise) between June 29,
2014, and the present, with law enforcement agencies or officers concerning eatheterization, or obtaining
a urine sample"—would be permissible. In briefing, the Defendants "acknowledge that, to the extent
paragraph four seeks communications firom or to a Defendant concerning obtaining urine samples
obtained by eatheterization, it seeks discoverable information." Doc. 16 at 8. Plaintiffs' attorney, indeed
with the perhaps unwitting assistance of attorney Whalen^ presented an explanation of why he believed
there was a conspiracy and the reasons for certain conspiracy allegations in the Complaint and Amended
Complaint. Therefore, some discovery fi-om those other law enforcement agencies "is relevant to any
party's claim or defense." Fed. R. Civ. P. 26(b)(1).
Plaintiffs' requests to the other law enforcement agencies though is overbroad and thereby
imposes an undue burden on those law enforcement agencies. See Fed. R. Civ. P. 26(c)(1). This case—as
it relates to these other law enforcement agencies—concerns an alleged conspiracy to forcibly catheterize
people based on seareh warrants simply authorizing collection of urine samples. Requests not connected
to the Defendants or to foreed eatheterization are not "relevant to any party's claim[s] or defense[s]"
under Rule 26(b)(1). All of the paragraphs in the subpoenas request "or obtaining a urine sample," which
is overbroad, unduly burdensome and likely not what Plaintiffs really are seeking anyway. The Court will
confine and allow the following requests:
1. The affidavit for seareh warrant, search warrant, and return for every instance of
forced or involuntary eatheterization conducted between June 29, 2014, and the
2. All poliee reports for every detention, arrest, or incarceration that included an
instance of forced or involuntary eatheterization between June 29, 2014, and the
3. All videotapes of every forced or involuntary eatheterization between June 29, 2014,
and the present.
4. All communication (electronic and otherwise) between June 29, 2014, and the
present, with the City of Pierre, the City of Sisseton, and/or the South Dakota
Though represented by counsel, attorney Whalen spoke during the motion hearing, described it being
common knowledge that there was widespread forced eatheterization to obtain urine samples by law
enforcement in south central South Dakota, described having a CD showing the forced eatheterization of
one of his elients who is adamant that Whalen not disclose the CD or client's identity, and believed
himself aware of three of his clients who were subjected to the procedure.
Highway Patrol or other South Dakota state law enforcement agency concerning
forced or involrmtary catheterization, or obtaining a urine sample by threatening
5. All written polieies or instructional materials on obtaining a urine sample by
catheterization, or threat of catheterization, that were in effect at any time between
June 29, 2014, and the present.
6. All training or instructional materials regarding catheteiizations, or obtaining a urine
sample by threatening catheterization, in effect or use from June 29, 2014, to the
Because of the refinement and confinement of these requests, the other law enforcement agencies
who faced return dates of November 13 on the subpoenas duces tecum are allowed until December 1,
2017, to comply. Plaintiffs' counsel shall notify the other law enforcement agencies of this opinion and
order. Plaintiffs' counsel has advised that he has had discussions with entities subpoenaed about
accommodations to them in producing documents. Nothing in this order should be interpreted as setting
aside any additional accommodations or other confmement of the request that Plaintiffs' counsel has or is
willing to make.
Mueh of the information sought will contain information of a confidential or sensitive nature,
possibly including videotape of people being forcibly catheterized or information from search warrant
apphcations and affidavits about suspected dmg activity and investigations. Therefore, this Court directs
counsel for all parties that the material produced in response to the subpoenas duces tecum is to be viewed
by counsel for the parties only at this time and is not to be disseminated or used outside of this case unless
and until this Court so authorizes. The Court encourages counsel to cooperate to propose a protective
order for the Court to execute if they perceive that other such matters may be part of discovery in this
For the reasons explained in this Opinion and Order, it is hereby
ORDERED that Defendants' Motion for Protective Order, Doe. 15, is granted in part to
the extent explained in this Opinion and Order. The subpoenas duces tecum to the medieal providers and
to Whalen are quashed and no discovery in this ease shall take place from them absent an order of this
Court. Further, the subpoenas educes tecum to the other law enforcement agencies is confined as set forth
herein. It is further
ORDERED that Whalen's Motion to Quash or Modify Subpoena or for Protective Order, Doc.
19, is granted at this time, but no fees or expenses are awarded.
th day ofNovember,2017.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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