Cruse v. Blackburn et al

Filing 45

ORDER denying Defendants Hammers and Frazier's 41 Motion to Stay and denying Plaintiff's 43 Motion to Compel for Second Set of Requests for Production of Documents; directing that the discovery period be reopened until 8/3/2017 for the sole purpose of allowing Plaintiff the opportunity to serve interrogatories on Defendants Blackburn, Matovich, Hammers and Frazier, as more fully set forth herein. Signed by Magistrate Judge Omar J. Aboulhosn on 7/19/2017. (cc: Plaintiff; counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
WENDELL LEONARD CRUSE,
Plaintiff,
v.
ERNIE BLACKBURN, et al.,
Defendants.

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Civil Action No. 3:17-00485

ORDER
Pending before the Court are the following: (1) Defendants Hammers and Frazier’s
“Motion to Stay” (Document No. 41), filed on June 19, 2017; and (2) Plaintiff’s “Motion to
Compel for Second Set of Requests for Production of Documents (Document No. 43, pp. 6 – 9),
filed on July 3, 2017.
On June 19, 2017, Defendants Hammers and Frazier filed a “Motion to Stay.” (Document
No. 41.) Specifically, Defendants Hammers and Frazier request a stay of discovery pending a
ruling on their pending Motion to Dismiss. (Id.) Defendants Hammers and Frazier explain that
such a stay is necessary “to protect Defendants from undue burden and expenses of continued
discovery pursuant to Defendants’ assertion of immunity.” (Id.) Finally, Defendants Hammers and
Frazier state that Plaintiff’s “Motion to Compel” (Document No. 24) and “Motion to Compel and
Impose Sanctions” (Document No. 36) does not involve claims against Defendants Hammers and
Frazier. (Id.)
In Response, Plaintiff states that he opposes Defendants Hammers and Frazier’s Motion to
Stay and requests that all Defendants be compelled to respond to his request for production of

Defendants Blackburn and Matovich’s grand jury testimony. (Document No. 43, pp. 6 – 12.)
Concerning Defendants Hammers and Frazier’s Motion for a Stay, Plaintiff appears to object only
to the extent that they have not provided requested grand jury testimony. (Document No. 43, pp.
10 – 12.) Plaintiff contends that his discovery requests to Defendants Hammers and Frazier have
been limited to his request that Defendants Hammers and Frazier produce the grand jury testimony
of Defendants Blackburn and Matovich. (Id.) Accordingly, Plaintiff requests that Defendants
Hammers and Frazier be ordered to produce the grand jury testimony of Defendants Blackburn
and Matovich. (Id.) In the alternative, Plaintiff contends that Defendants Blackburn and Matovich
should be compelled to produce their grand jury testimony. (Id., pp. 8 – 9.) In support, Plaintiff
claims that the grand jury testimony is needed “to avoid a possible injustice in another judicial
proceeding.” (Id.) Plaintiff states that in the above action, he alleges that Defendants Blackburn
and Matovich filed false affidavits and fabricated evidence in order to arrest Plaintiff based upon
a Criminal Complaint. (Id.) Plaintiff further states that his Amended Complaint alleges
“Defendants Hammers and Frazier suborned perjury when they sought an indictment against
Plaintiff using the knowingly perjured testimony of Blackburn and Matovich.” (Id.)
The Fourth Circuit has recognized that “grand jury testimony should never be used as a
substitute for thorough discovery.” Gilbert v. United States, 203 F.3d 820, 823 (4th Cir.
2000)(citing Lucas v. Tuner, 725 F.2d 1095, 1106 (7th Cir. 1984)). It is well recognized that secrecy
is a hallmark of a grand jury’s core function. See Douglas Oil Co. v. Petrol Stops Northwest, 441
U.S. 211, 218, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Similar to Rule 6(e) of the Federal Rules of
Criminal Procedure, West Virginia Code § 52-2-15(c)(2)(A) provides that disclosure of matters
occurring before the grand jury may be made “when so directed by a court preliminarily to or in
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connection with a judicial proceeding.” See W.Va.Code § 52-2-15(c)(2)(A); Fed.R.Crim.P.
6(e)(3)(C)(i). The party requesting disclosure of the confidential grand jury material, however,
bears the burden to establish “a strong showing of particularized need . . . before any disclosure
will be permitted.” United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 77
L.Ed.2d 743 (1983). To demonstrate a particularized need, the Fourth Circuit has stated that a party
must establish “that (1) the material ‘is needed to avoid a possible injustice in another judicial
proceeding,’ (2) ‘the need for disclosure is greater than the need for continued secrecy,’ and (3)
the ‘request is structured to cover only material so needed.’” Gilbert, 203 F.3d at 823(citing
Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. 1667). Although the interest of secrecy is reduced once
the grand jury proceeding has concluded, the interest of secrecy is not eliminated. Id. “[S]tringent
protection of the secrecy of complete grand jury investigations may be necessary to encourage
persons to testify fully and freely before future grand juries.” Illinois v. Abbot & Assoc., Inc., 460
U.S. 557, 566 n. 11, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983).
The undersigned finds that Plaintiff’s request for the production of Defendants Blackburn
and Matovich’s grand jury testimony should be denied. To the extent Plaintiff is requesting the
grand jury testimony in an effort to prove that Defendants Blackburn and Matovich falsely testified
before the grand jury, such is insufficient to meet the standard set forth in Douglas Oil. It is well
recognized that allowing a civil suit for false grand jury testimony “would . . . emasculate the
confidential nature of grand jury testimony, and eviscerate the traditional absolute immunity for
witness testimony in judicial proceedings. Rehberg v. Paulk, 566 U.S. 356, 361, 132 S.Ct. 1497,
1501, 182 L.Ed.2d. 593 (2012). The Court notes that witnesses who testify in court, including
police officers, are absolutely immune from any claims relating to their testimony. Briscoe v.
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LaHue, 460 U.S. 325, 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)(witnesses in judicial proceedings
receive “absolute immunity from damages liability under § 1983 based on their testimony”).1 To
the extent Plaintiff is requesting the grand jury testimony to prove that Defendants Hammers and
Frazier presented false testimony to the grand jury, the undersigned notes that Defendants
Hammers and Frazier assert in their Motion to Dismiss that they are entitled to absolute immunity
for such alleged misconduct. Thus, Plaintiff has failed to establish “a strong showing of
particularized need” for the grand jury testimony. Furthermore, Plaintiff could have obtained
necessary information concerning Defendants Blackburn and Matovich by use of interrogatories
during the discovery period. Gilbert, 203 F.3d at 825(finding that plaintiff was not entitled to grand
jury testimony where plaintiff could have deposed the defendant during discovery); also Lucas,
725 F.2d at 1106(emphasizing grand jury testimony is not a substitute for discovery). Accordingly,
the undersigned finds that Plaintiff has not demonstrated a particularized need for disclosure of
Defendants Blackburn and Matovich’s grand jury testimony that outweighs the interests in secrecy.
It is hereby ORDERED that Plaintiff’s “Motion to Compel for Second Set of Requests for
Production of Documents (Document No. 43, pp. 6 – 9) is DENIED. The Court recognizes that
the period for conducting discovery concluded on July 3, 2017. (Document No. 11) Thus, the Court
directs that the discovery period be reopened until August 3, 2017, for the sole purpose of allowing
Plaintiff the opportunity to serve interrogatories2 on Defendants Blackburn, Matovich, Hammers,

A person, however, has a constitutional “right not to be deprived of liberty as a result of the
fabrication of evidence by a government officer acting in an investigating capacity.” Washington
v. Wilmore, 407 F.3d 274 (4th Cir. 2005).
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Plaintiff is advised interrogatories are a way to get a sworn statement from someone who is a
party to the action. Interrogatories are written questions that must be answered, under oath, by the
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and Frazier.
Considering Defendants Hammers and Frazier’s “Motion to Stay,” the undersigned finds
that the Motion should be denied. As noted above, the discovery period involving the above case
concluded on July 3, 2017. (Document No. 11.) Although the undersigned has reopened discovery,
the undersigned restricted discovery to a limited period of time for the restricted purpose of
allowing Plaintiff the opportunity to serve interrogatories upon Defendants. Although Defendants
Hammers and Frazier have filed a Motion to Dismiss, the undersigned finds it inappropriate to
stay discovery. It is possible that discovery is necessary for Plaintiff to gather facts in defense to
Defendants Hammers and Frazier’s Motion to Dismiss. See Tilley v. United States, 270 F.Supp.2d
731, 734 (M.D.N.C. 2003)(citations omitted)(“A protective order under Rule 26(c) to stay
discovery pending determination of a deposition motion is an appropriate exercise of the court’s
discretion. The court should not, however, stay discovery which is necessary to gather facts in
defense of the motion.”) The undersigned further notes that Plaintiff states that his only discovery
request to Defendants Hammers and Frazier involved the production of the grand jury testimony.
Accordingly, it is hereby ORDERED that Defendants Hammers and Frazier’s “Motion to Stay”
(Document No. 41) is DENIED.

party on whom they are served. Rule 33 of the Federal Rules of Civil Procedure governs
interrogatories. Plaintiff is limited to twenty-five (25) interrogatories (questions), counting each
subpart separately, for each party. A person may serve more interrogatories on a party only if the
Court grants the party special permission to serve more than twenty-five. Interrogatories may only
be served on people who are parties to the litigation.

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In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the parties are
hereby notified that the rulings set forth above may be contested by filing objections to this Order
within 14 days. If objections are filed, the District Court, Honorable Chief United States District
Judge Robert C. Chambers, presiding, will consider the objections and modify or set aside any
portion of the Order which it finds to be clearly erroneous or contrary to law.
The Clerk is hereby directed to mail a copy of this Order to Plaintiff, who is acting pro se,
and to counsel of record.
ENTER: July 19, 2017.

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