Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:04-cv-01225-MSK-BNB

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Filed 10/19/2005

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Malik M. Hasan, M.D., et al. v. Goldman Sachs 1998 Exchange Place Fund, LP, et al.

EXHIBIT F T EN ME D F N A T ' TO F RP O E TV O D R H A D E E D N S MO I N O R T C I E R E UNPUBLISHED CASE WATSON v. CITY OF KANSAS CITY, KANSAS

EXHIBIT F 04-cv-1225-MSK-BNB

Case 1:04-cv-01225-MSK-BNB

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Filed 10/19/2005

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1989 WL 21165 Not Reported in F.Supp., 1989 WL 21165 (D.Kan.) (Cite as: 1989 WL 21165 (D.Kan.))

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Only the Westlaw citation is currently available.

United States District Court, D. Kansas. Nancy WATSON and Jason Fitch, Plaintiffs, v. CITY OF KANSAS CITY, KANSAS, et al., Defendants. CIV. A. No. 84-2335-S. Feb. 2, 1989. Linda F. Dycus, Kansas City, Mo., Dennis E. Mitchell, Daniel Duncan, Duncan and Roberts, Kansas City, Kan., G. Spencer Miller/Lynn Bratcher, Miller & Dougherty, Kansas City, Mo., for plaintiffs. Daniel B. Denk, McAnany, Van Cleave & Phillips, Kansas City, Kan., for all defendants. MEMORANDUM AND ORDER SAFFELS, District Judge. *1 This matter is before the court on various pending motions of both parties. The factual background of this case is fully detailed in this court's earlier Memorandum and Order in this case, dated July 23, 1986, and in the Tenth Circuit Court of Appeals' decision, Watson v. City of Kansas City, Ks., 857 F.2d 690, 691-93 (10th Cir.1988). Some procedural background is also important in deciding the pending motions. From the pleadings filed in this case, it appears that both parties have been less than fully cooperative in conducting discovery. On April 14, 1986, the court granted the parties an additional thirty days to complete discovery. Thus, discovery was closed, and should have been completed, by the end of May 1986. On July 23, 1986, the court granted defendants' motion for summary judgment on all claims. On September 14, 1988, the Tenth Circuit affirmed in part and reversed in part that order. On October 11, 1988, this court received a mandate from the Tenth Circuit which reopened this case for further proceedings. The trial date for this case is set for February 21, 1989. Pending before the court is defendants' renewed motion for summary judgment, plaintiffs' motion to

name an additional expert witness, defendants' first and second motions in limine, plaintiffs' first motion in limine, defendants' motion for protective order, and plaintiffs' motion for protective order. After reviewing the parties' supporting and opposing briefs regarding these motions, the court is now prepared to rule. A. Defendants' Renewed Motion for Summary Judgment A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). An issue of fact is "material" only when the dispute is over facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214 (1985). The language of Rule 56(a) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). *2 1. Qualified Immunity on Section 1983 Claims First, the individual defendants argue they are entitled to qualified immunity from plaintiffs' section 1983 claim against them in their individual capacity. The United States Supreme Court, in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), established an objective standard for determining whether the doctrine of qualified immunity applies. This standard provides that if government officials are performing discretionary functions, they will not be

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Case 1:04-cv-01225-MSK-BNB

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1989 WL 21165 Not Reported in F.Supp., 1989 WL 21165 (D.Kan.) (Cite as: 1989 WL 21165 (D.Kan.)) liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. In making this determination, the court must examine the law as it existed at the time of defendants' actions. Id. The question of whether parties are entitled to qualified immunity is a question of law for the court to decide. Pueblo Neighborhood Health Centers v. Savio, 847 F.2d 642, 646 (10th Cir.1988). The plaintiff has the burden of convincing the court that the law was clearly established at the time of defendants' actions. See id. at 645 (citing Lutz v. Weld County School Dist., 748 F.2d 340, 342-43 (10th Cir.1986)). Plaintiffs allege that the defendants violated their constitutional right to equal protection by responding differently and affording less protection to victims of domestic violence than to victims of nondomestic assaults. Thus, in determining whether qualified immunity applies, the court must decide whether it was clearly established at the time of defendants' actions that the equal protection clause prohibited police officers from treating domestic and nondomestic assaults in a different manner. The court finds that the use of the equal protection clause to provide a theory of recovery in situations like the one presented in this case is a very recent and novel development in equal protection jurisprudence. There was no clearly established law regarding a city's or police officers' liability for providing less protection in domestic violence situations, until the tenth circuit's decision in this very case. In fact, the only federal appellate court decision addressing this matter was the ninth circuit's decision in Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1427 (9th Cir.1988). This ninth circuit decision was decided just three weeks prior to the tenth circuit's decision in the present case. Although plaintiffs' rights to equal protection of the laws was established, at the time of defendants' actions, it was not clearly established that responding differently to domestic and nondomestic assaults could serve as the basis of a particular equal protection claim. See Garrett v. Rader, 831 F.2d 202, 204 (10th Cir.1987) (whether a law is clearly established "should be determined in a particularized sense."); see also Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir.1987) (The court must determine whether the alleged right was established with "sufficient particularity" that a reasonable official could anticipate that his actions would violate that right.). Since the law regarding a police officer's duties under the equal protection clause in responding to domestic assaults was not clearly established at the time of defendants' action, the court will grant the individual

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defendants qualified immunity from liability in their individual capacities regarding plaintiffs' section 1983 claim. *3 2. Defendant Woolery's Claim of Immunity on Plaintiffs' Negligence Claim. Plaintiffs assert a claim against defendant Woolery for negligence in failing to detain or arrest Ed Watson. Defendant argues that he is entitled to personal immunity from this common law claim for reasons analogous to the doctrine of qualified immunity for federal constitutional claims. Defendant Woolery argues that until a 1986 Kansas Supreme Court decision, the Kansas Tort Claims Act provided immunity from tort claims for failure to provide police protection. See K.S.A. § 756104(m). In 1986, the Kansas Supreme Court in Fudge v. City of Kansas City, Ks., 239 Kan. 369, 374, 720 P.2d 1093, 1099 (1986), the court held that this immunity was not available when police officers, in carrying out their duty to protect particular members of the public, were negligent. Defendant argues that since the Fudge decision was not decided until after his alleged failure to detain or arrest Ed Watson, he should still be entitled to immunity from suit in his individual capacity. Defendant is attempting to apply the Harlow doctrine of qualified immunity for constitutional torts to common law tort situations without citing any authority justifying this application. Furthermore, the court finds that the Kansas Supreme Court in Fudge was not creating any new law, but was simply applying existing law. Also, defendant argues that a recent amendment to the Kansas Tort Claims Act provides him with immunity. See K.S.A. 75-6104(d) (1987 Supp.). That new statute states in substance that a government employee will not be liable for damages resulting from failure to adopt or enforce a policy which protects persons' health or safety, "unless a duty of care, independent of such policy, is owed to the specific individual injured,...." The court finds this recent amendment to the Kansas Tort Claims Act changes nothing regarding defendant Woolery's liability. As plaintiffs point out, this court has already determined that a special relationship did exist between plaintiff Watson and Sergeant Woolery. See Memorandum & Order of July 23, 1986 at p. 23; see also Watson, 857 F.2d at 698 n. 3. Therefore, the court finds that defendant Woolery is not entitled to immunity from plaintiffs' negligence claim. Thus, the court will allow plaintiffs to assert their negligence claim against both Woolery and the City.

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Case 1:04-cv-01225-MSK-BNB

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Filed 10/19/2005

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1989 WL 21165 Not Reported in F.Supp., 1989 WL 21165 (D.Kan.) (Cite as: 1989 WL 21165 (D.Kan.))

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so that the proposed depositions would not occur. 3. Section 1985 Claims. In their response to defendants' renewed motion for summary judgment, plaintiffs argue that their section 1985 and 1986 claims are still cognizable. Plaintiffs argue that since the tenth circuit reversed this court's summary judgment on one of their section 1983 claims, new life was breathed into their section 1985 and 1986 claims. Plaintiffs did not appeal this court's entry of summary judgment on their section 1985 and 1986 claims. In its decision, the tenth circuit reversed this court to a limited extent. Plaintiffs can maintain an equal protection claim based on the alleged policy of affording less protection to victims of domestic violence than to victims of nondomestic violence. Also, plaintiffs can maintain a claim under the Kansas Tort Claims Act. The appellate court specifically stated: "In all other respects, the district court's decision is affirmed." Watson, 857 F.2d at 698. Therefore, the Tenth Circuit's decision did not resurrect plaintiffs' section 1985 or 1986 claims. B. Plaintiffs' Motion for Leave to Name Additional Expert Witnesses *4 Plaintiffs request that the court grant leave to name additional expert witnesses out of time. Plaintiffs base this request on the fact that a great deal of time has passed since the experts were identified in 1986 and the trial's scheduled date in February of 1989. Plaintiffs state that previouslynamed expert witnesses are now unable to testify. In response, defendants argue that plaintiffs' request is untimely and would be unfair to defendants, given that discovery closed in this case over two years ago, and the lack of time prior to trial to conduct any further discovery. The court finds that plaintiffs have failed to show that the request is necessary and warranted. Plaintiffs do not state why their designated experts are not available. Furthermore, plaintiffs can use evidentiary depositions of previously designated experts if the experts are now unavailable for testimony at trial. C. Motions for Protective Orders Plaintiffs sent defendants notice on January 3, 1989, that defendants present their designated expert witnesses for depositions. On January 6, 1989, defendants moved for a protective order pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure Defendants argue that plaintiffs failed to follow the proper process for deposing that expert; that discovery was closed back in May 1986; that taking depositions now would be untimely; and plaintiffs have not shown that the depositions are necessary. Plaintiffs argue that counsel had an agreement to stay discovery during the pendency of the appeal of this Court's Summary Judgment Order. In reply, defendants contend that since the trial date is fast approaching and the parties are involved in trial preparations and the depositions are not necessary, any further discovery should be prevented. Not to be outdone, on January 20, 1989, defendants sent plaintiffs a notice to take depositions of certain nonexpert witnesses, which plaintiffs have listed as potential witnesses. These depositions are set for February 1 and 2, 1989. Plaintiffs filed a motion for a protective order to prohibit the taking of these depositions. In support, plaintiffs contend that the discovery deadline passed over two years ago. The court finds that discovery has long been closed in this case. Any discovery depositions of potential witnesses should have been completed by May 1986. This case is a few weeks away from trial. The court will not allow discovery to be reopened in this fouryear-old case. Therefore, the court will grant both parties' requests to quash the opposing party's notice of deposition and will grant their requests for protective orders prohibiting the taking of any discovery depositions. D. Motions in Limine 1. Plaintiffs' First Motion in Limine In their motion, plaintiffs request an order prohibiting the mention of, or introduction of, evidence on various matters. Specifically, plaintiffs wish to preclude any mention of the fact that plaintiff's former husband, Ed Watson, Jr., was black; that unreported incidents of violence perpetrated on Nancy Watson by Ed Watson occurred; that Jason Fitch was born out of wedlock; and that Nancy Watson remarried Ed Watson. Plaintiffs contend these facts are highly prejudicial to the jury. In response, defendants argue that the evidence of the previously unreported incidents of violence by Ed Watson against Nancy Watson and the fact of their remarriage are relevant to the issue of proximate cause in the present case.

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Case 1:04-cv-01225-MSK-BNB

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Filed 10/19/2005

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1989 WL 21165 Not Reported in F.Supp., 1989 WL 21165 (D.Kan.) (Cite as: 1989 WL 21165 (D.Kan.)) *5 The court finds that plaintiffs' motion is too broad to rule on at this time. The court feels it cannot make an appropriate ruling on whether the matters enumerated by plaintiffs are proper evidence or not, in this abstract setting. Therefore, the court will not grant plaintiffs' motion in limine. The plaintiffs may object at trial to defendants use of evidence regarding these matters. Then, the court can make an appropriate and knowledgeable ruling, viewing the evidence in the context of its proposed use. Nevertheless, the court admonishes defense counsel to avoid any attempt to bring Ed Watson's race before the jury. This fact is totally irrelevant to the issues before the court. 2. Defendants' First Motion in Limine Defendants seek an order in limine to prohibit plaintiffs from pursuing through testimony, documents or argument, any allegations of sexual discrimination, of discrimination based on the fact that Ed Watson was the stepfather of Jason Fitch and the wife of Nancy Watson, and discrimination based on Ed Watson's employment as a Kansas City, Kansas police officer. Defendants note that the tenth circuit affirmed this court's summary judgment against plaintiffs' equal protection claims based on these theories. In response, plaintiffs argue that the fact that Ed Watson was a police officer is relevant, particularly in regard to plaintiffs' negligence claim. The court first states its agreement with defendants' reading of the tenth circuit's opinion. The only issues in this case regarding plaintiffs' section 1983 equal protection claim is whether defendant City had a policy or custom to provide less protection to domestic assault victims than to nondomestic assault victims, and if so, whether such a policy violated plaintiffs' equal protection rights. Like plaintiffs' first motion in limine, defendants' motion is too broad and abstract to warrant an order prohibiting evidence or mention of the matters defendants wish to exclude. Defendants want the court to exclude any inquiry on any subject falling within these broad areas of potential inquiry. To make an appropriate ruling, the court must wait and see the context in which these matters arise at trial. If defendants then object to the inquiry into certain matters relating to Ed Watson's status as a police officer, for example, then the court can make an informed and specific decision on whether such inquiry is appropriate. Since defendants' motion wishes to exclude vague areas of inquiries in the abstract, the court will deny defendants' motion. The © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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court reiterates, though, that this is not a gender discrimination case. Plaintiffs cannot pursue a theory of sexual discrimination. Also pending before the court is defendants' second motion in limine, which was filed January 17, 1989. In this motion, defendants seek to prevent any testimony by plaintiffs' designated expert, Dr. Leonard Territo. Plaintiffs have not yet responded to this motion. Thus, the court will decline to rule on the motion at this time. *6 Finally, pending before the court is defendants' motion to shorten time for plaintiffs to respond to request for production of documents. The court believes that the present Memorandum and Order will render this motion moot. Therefore, it is unnecessary to address this motion. IT IS BY THE COURT THEREFORE ORDERED that defendants' renewed motion for summary judgment is granted in part and denied in part, as more fully set out in the Memorandum and Order. IT IS FURTHER ORDERED that plaintiffs' motion for leave to name additional expert witnesses is denied. IT IS FURTHER ORDERED that defendants' motion for protective order is granted. IT IS FURTHER ORDERED that plaintiffs' motion for protective order is granted. IT IS FURTHER ORDERED that plaintiffs' first motion in limine is denied. IT IS FURTHER ORDERED that defendants' first motion in limine is denied. IT IS FURTHER ORDERED that defendants' motion to shorten time for plaintiffs to respond to request for production of documents is moot. Not Reported in F.Supp., 1989 WL 21165 (D.Kan.) END OF DOCUMENT