Patterson v. City of South Charleston, West Virginia et al

Filing 233

MEMORANDUM OPINION AND ORDER pursuant to plaintiff's 230 MOTION for Reconsideration, re: deposition of Magistrate Yeager; directing that plaintiff's motion to reconsider the court's 11/4/2015 226 order is denied. Signed by Judge John T. Copenhaver, Jr. on 11/12/2015. (cc: plaintiff, pro se; counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

WAYNE PATTERSON
Plaintiff,
v.

Civil Action No. 2:12-01964

MAGISTRATE JULIE YEAGER, individually,
LIEUTENANT R.T. YEAGER,
individually and in his official capacity,
SERGEANT L.S. THOMAS,
individually and in his official capacity,
and OFFICER R.P. MCFARLAND,
individually and in his official capacity,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is the motion to reconsider1 filed by plaintiff
Wayne Patterson on November 9, 2015, to which defendant
Magistrate Julie Yeager filed a response in opposition on
November 10, 2015.

1

Plaintiff’s motion refers to the court’s “November 3, 2015[,]
Order.” The order entered on November 3 addresses the deposition
of Lieutenant Yeager.
It is clear from the substance of the
pending motion that plaintiff seeks reconsideration of the order
addressing the deposition of Magistrate Yeager. That order was
entered on November 4, 2015.

I.
In the pending motion, plaintiff asks the court to
reconsider its order of November 4, 2015, ECF No. 226.

That

order granted Magistrate Yeager’s motion for a protective order
and denied plaintiff’s motion to compel further discovery of
her.
Plaintiff asserts that he is “not being permitted to
ask one of the two alleged conspirators if they agreed with the
other alleged conspirator’s actions,” and seeks an order
“permitting [him] to complete the line of questions regarding
agreement” between the alleged conspirators.

Magistrate Yeager

maintains that the information sought is protected by the
deliberative process privilege and, further, that the questions
were irrelevant to the single count of conspiracy alleged
against her.
II.
A.
Rule 54(b) states, in relevant part, that an
interlocutory, non-dispositive “order or other form of decision
is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of
all the parties.”

Fed. R. Civ. P. 54(b).
2

The power to grant or

deny reconsideration of an interlocutory order is committed to
the discretion of the district court.

See Moses H. Cone Mem.

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (observing
that “every order short of a final decree is subject to
reopening at the discretion of the district judge”); see also
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th
Cir. 2003) (citing Fayetteville Inv’rs v. Commercial Builders,
Inc., 936 F.2d 1462, 1469 (4th Cir. 1991)).
B.
As explained by the court more fully in its previous
order, plaintiff was not entitled to receive answers to each of
three disputed questions.

Two of those questions2 were

hypothetical, and the information sought was irrelevant to the
conspiracy claim alleged against Magistrate Yeager.

With

2

Plaintiff: Okay. Okay. Under the Fourth Amendment, under
the right of search and seizure, the search and seizure law,
would your -- would a police officer have the right to enter
a person’s house, move them without cause?
. . .
Plaintiff:
Magistrate Yeager, if your brother and people
that were under his command removed a person from their home,
which would be me, who was in possession of that home, would
that be against the Fourth Amendment?
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respect to those two questions, the court adheres to its earlier
ruling.
C.
The third disputed question is somewhat more
complicated.

It came about as follows:

Plaintiff: Okay. Okay. So you discovered that he had
removed us from the house after we came to your court
[to be arraigned], after we had been arrested, after I
-- my brother and I had been arrested.
Yeager:

Yes.

That’s what I remember.

Plaintiff: Okay. Well -- okay. Your brother having
removed me and my son from the home, based on what you
know, did you agree with what he had done?
With respect to this question, too, the court adheres to its
earlier ruling.

Nevertheless, the court pauses to take further

note of the context in which the challenged question was asked.
Early in Magistrate Yeager’s deposition, the following
exchange occurred:
Plaintiff: Okay. Okay. Well, Magistrate Yeager, when
did you learn that your brother had removed me and my
brother and son from the house at Barrett Street?
Yeager: I don’t even -- I think the evening that I was
-- I think the Saturday night that they had arrested you
and brought you in for arraignment, I think that’s the
first I had learned of it.
Plaintiff:
So you didn’t know that your brother had
removed us from the house.
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Yeager: No. All I know is that he called to see if
there were any orders in effect, and I recognized your
name and mentioned that I had met you a couple nights
prior to that but, no, I don’t know -- I didn’t know
anything about that.
Later in the deposition, Magistrate Yeager reiterated her
testimony on that point as follows:
Yeager:
Mr. Patterson, I recall -- I recall knowing
that you had been removed from the home that evening
when I granted the protective order because of the
allegations that were written in the petition for [the]
protective order, but I do not believe, sir, that I knew
that it was my brother that had removed you from the
home. I think I just knew that South Charleston police
had asked you to vacate the residence prior to your
arrest, but I do not -- I don’t specifically remember
that it was my brother that had removed you. . . . I
did know you were no longer in the home, but I do not
remember knowing that it was my brother that had removed
you.
It is clear from this testimony that Magistrate Yeager
claims not to have learned that plaintiff had been removed from
the Barrett Street house until plaintiff’s arraignment on July
2, 2011, over which she presided.3

It is also apparent that

Magistrate Yeager claims not to have known, at the time of
plaintiff’s arraignment, that it was Lt. Yeager in particular

3

Plaintiff was arraigned on July 2, 2011, on charges of battery
arising from an incident that allegedly took place on June 29,
2011, and which was reported to police earlier in the day on July
2, 2011. The same day -- July 2, 2011 -- Magistrate Yeager issued
against plaintiff the protective order mentioned in the excerpt
above.
Plaintiff was removed from the Barrett Street house at
some point in the evening of July 1, 2011.
5

who effected the removal.

Viewed in this context, the disputed

question thus asks whether Magistrate Yeager “agree[d]” with
something that had already taken place, rather than whether she
conspired with Lt. Yeager to effect it in the first instance.
As noted in the court’s November 4 order, Federal Rule
of Civil Procedure 26 provides, in relevant part, that
“[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense[.]”
Fed. R. Civ. P. 26(b)(1).
“bears on, or

Information is “relevant” if it

. . . reasonably could lead to other matter[s]

that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350 (1978).
Put another way, information that is “germane to the subject
matter of the pending action” usually is discoverable.

Ralston

Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977).
The complaint alleges a single count of conspiracy
against Magistrate Yeager.

In West Virginia, “[a] civil

conspiracy is a combination of two or more persons by concerted
action to accomplish an unlawful purpose or to accomplish some
purpose, not in itself unlawful, by unlawful means.

The cause

of action is not created by the conspiracy but by the wrongful
acts done by the defendants to the injury of the plaintiff.”
Syl. Pt. 8, Dunn v. Rockwell, 225 W. Va. 43 (2009).
6

Whether Magistrate Yeager was involved in what
happened -- whether she was involved in “a combination . . . to
accomplish an unlawful purpose” -- clearly is relevant to the
conspiracy claim.

Plaintiff was able to, and did, ask a number

of questions on that issue.

He properly received answers to

those questions.
But whether, once she learned about it after the fact,
Magistrate Yeager “agree[d]” with plaintiff’s removal is
irrelevant to the conspiracy claim.

As established above, she

claims not to have known that her brother participated in
plaintiff’s removal.

Her opinion as to whether plaintiff’s

removal was proper, or whether she “agree[d]” with it, does not
make a conspiracy between her and Lt. Yeager more or less
likely, and is not germane to the single count of conspiracy
alleged against her.

Consequently, plaintiff was not entitled

to an answer to this question.
III.
For the foregoing reasons, it is ORDERED that
plaintiff’s motion to reconsider the court’s November 4, 2015,
order be, and it hereby is, denied.

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The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: November 12, 2015

John T. Copenhaver, Jr.
United States District Judge

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