HomeMy WebLinkAbout2017CV1177 - MCGRATH V. FCPS OFFICER NICK ROGERS - 032 - ORDER GRANTING MOTION TO WITHDRAWIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01177-LTB-NYW
DAKOTA TYLER MCGRATH,
Plaintiff,
v.
FORT COLLINS POLICE SERVICES OFFICER NICK ROGERS, in his individual capacity,
Defendant.
ORDER GRANTING MOTION TO WITHDRAW
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Dakota Tyler McGrath’s (“Plaintiff” or
“Mr. McGrath”) Motion Pursuant to Federal Rule of Civil Procedure 36(b) to Permit Admissions
to be Withdrawn or Amended (“Motion” or “Motion to Withdraw”) [#22, filed February 5,
2018], and the Parties’ supplemental briefing on the applicability of the psychotherapist-patient
privilege to discovery sought by Defendant Nick Rogers
1
(“Defendant” or “Officer Rogers”)
[#25; #28; #31]. These matters were referred to the undersigned pursuant to 28 U.S.C. § 636(b),
Rule 72(a) of the Federal Rules of Civil Procedure, the Memorandum dated February 6, 2018
[#23], and the Minute Order dated February 16, 2018 [#27]. Having reviewed the Motion to
Withdraw and associated briefing, the Parties’ supplemental briefing on the applicability of the
psychotherapist-patient privilege, the comments offered during the Discovery Hearings on
January 17 and February 6, 2018, the Motion to Withdraw is GRANTED and this court finds
that Plaintiff’s mental health records are not discoverable at this time.
1
The Complaint mistakenly refers to Defendant as Nick “Rodgers.” Pursuant to this Order, the
Clerk of the Court shall amend the caption on the docket to reflect the proper spelling of
Defendant’s last name as “Rogers.”
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BACKGROUND
These allegations are drawn from the operative Complaint and are taken as true for the
purposes of this motion. This civil rights action stems from an encounter between Plaintiff and
Officer Rogers on the evening of approximately October 20, 2016. See [#1 at ¶¶ 1, 9]. Earlier
that evening Mr. McGrath had an argument with his brother, which allegedly became physical,
causing his brother to report the incident to police. See [id. at ¶¶ 9–10]. Officer Rogers
responded to the 911-call and observed Plaintiff removing items from his vehicle. See [id. at ¶
11]. Officer Rogers “called out to Mr. McGrath, but Mr. McGrath was wearing ear-buds and did
not hear him,” and walked away from Officer Rogers. [Id. at ¶ 12].
Officer Rogers pursued Mr. McGrath down an alleyway as another officer arrived on the
scene. See [id. at ¶¶ 13–14]. Upon approaching Plaintiff from behind, Officer Rogers struck
Plaintiff with his baton in the head/neck area, causing Plaintiff to fall to the ground momentarily
unconscious. [Id. at ¶ 15]. While laying face-down on ground, Officer Rogers struck Plaintiff’s
right leg several times with the baton, causing significant injuries to Plaintiff’s leg, including an
“open facture of the proximal end of his right tibia.” [Id. at ¶¶ 16–17]. Mr. McGrath was
transported by ambulance to the hospital where his right tibia fracture was diagnosed; however,
Plaintiff alleges that despite his need for medical attention, he was arrested and detained at the
Larimer County Detention Center and did not receive adequate medical treatment despite his
“multiple pleas for assistance.” [Id. at ¶¶ 18]. Plaintiff ultimately received “extensive medical
care, including surgery” for his right tibia fracture. [Id. at ¶ 19].
Plaintiff initiated this action on May 11, 2017, asserting one claim against Officer Rogers
for excessive force in violation of Mr. McGrath’s Fourth Amendment rights. [#1]. Plaintiff
seeks damages for his economic and non-economic losses, any permanent impairment and
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disfigurement of his right leg, emotional distress, pain and suffering, as well as attorney fees and
costs. See generally [id.]. Plaintiff has since withdrawn his request for lost wages [#17], and has
waived “any and all claims of emotional distress,” including “any and all claims for
compensation related to emotional distress” [#25 at 2].
The undersigned conducted a Scheduling Conference and entered a Scheduling Order
setting, among others, a discovery deadline of March 5, 2018 [#12], later extended to May 4,
2018 [#21]. Following certain impasses with discovery, this court conducted three informal
Discovery Hearings on January 17 and 24, and February 6, 2018, respectively. [#15; #16; #24].
Relevant here, at the January 17 Discovery Hearing the undersigned considered, inter alia, the
issue of Plaintiff’s untimely responses to Defendant’s First Set of Requests for Admissions
(“RFAs”), and directed Plaintiff to file his Motion to Withdraw on or before February 5, 2018
[#15]; at the February 6 Discovery Hearing the court considered the Parties’ positions regarding
the invocation of the psychotherapist-patient privilege as to Plaintiff’s mental health records, and
directed the Parties to file supplemental briefing on the issue [#24]. Because the Motion to
Withdraw and the Parties’ supplemental briefing on the psychotherapist privilege is complete,
these issues are ripe for disposition, and this court considers each in turn.
ANALYSIS
I. Motion to Withdraw Deemed Admissions
Under Rule 36 of the Federal Rules of Civil Procedure, a party may serve on any other
party a written request to admit the truth of any matters within the scope of Rule 26(b)(1)
relating to facts, the application of law to fact, or opinions about either. Fed. R. Civ. P. 36(a)(1).
A matter is admitted, unless within 30 days after being served, the party to whom the request is
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directed serves on the requesting party a written answer or objection, which is signed by the
party or her attorney. Fed. R. Civ. P. 36(a)(3).
Once a matter is admitted the court may permit the admission to be withdrawn or
amended. Fed. R. Civ. P. 36(b). Subject to Rule 16(e), the court may permit withdrawal or
amendment if (1) it would promote the presentation of the merits and if (2) the court is not
persuaded that it would prejudice the requesting party in maintaining or defending the action. Id.
The prejudice contemplated by Rule 36(b) is more than simply inconvenience to the party. See
Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005). Instead, “the prejudice relates to
the difficulty a party may have in proving its case, e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence with respect to the questions previously
deemed admitted.” Id.
Defendant propounded 9 RFAs on Plaintiff on November 17, 2017 [#22-1], rendering
Plaintiff’s response due on or before December 17, 2017 [#22 at 2]. The 9 RFA at issue include:
1. Admit that, on the night of the Incident, you ignored Defendant’s commands to step
away from your vehicle and sit down on a curb.
2. Admit that, on the night of the Incident, you walked away from Defendant after he
commanded you to approach him and sit down on a curb.
3. Admit that, on the night of the Incident, when Defendant informed you that you were
under arrest and that force would be used against you if you did not comply with
Defendant’s commands, you responded, “Do what you have to do.”
4. Admit that, on the night of the Incident, Defendant delivered a single blow to your
left scapula consisting of a two-handed straight strike with Defendant’s wooden
baton, which caused you to fall to the ground.
5. Admit that, on the night of the Incident, you reached for your backpack after
Defendant commanded you to roll over on to your stomach.
6. Admit that, on the night of the Incident, you resisted officers’ attempts to place you in
handcuffs.
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7. Admit that, on the night of the Incident, you head-butted Lalo Rodriguez.
8. Admit that, on the night of the Incident, you drank alcoholic beverages.
9. Admit that, on the night of the Incident, you refused to comply with hospital
personnel’s requests to let them examine you.
[#22-1 at 2–3]. Amongst themselves, the Parties’ stipulated to a 12-day extension of time for
Plaintiff to respond to the RFAs. See [#22 at 2–3; #22-2; #22-3]. Plaintiff, however, did not
respond to the RFAs until January 9, 2018, 11 days after the stipulated deadline. [#22 at 3; #22-
4].
Plaintiff now seeks leave to withdraw or amend his deemed admissions, arguing that the
9 RFAs concern the merits of Plaintiff’s excessive force claim and that Defendant will not be
prejudiced by amendment.
2
[#22; #30]. Defendant opposes withdrawal, asserting that only 1
RFA can be considered as going to the merits of Plaintiff’s claim and that Defendant would be
prejudiced by amendment because Defendant has yet to depose Mr. McGrath or serve any
subsequent discovery based on that deposition. [#29].
To start, the court concludes that the first factor under Rule 36(b) weighs in favor of
withdrawing Plaintiff’s deemed admissions. The sole claim before the court is Plaintiff’s
excessive force claim, a claim courts evaluate under the Fourth Amendment’s “relatively
exacting ‘objective reasonableness’ standard.” Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir.
2010). In determining whether the use of force is constitutionally impermissible, courts consider
factors such as “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate
threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or
attempting to evade arrest by flight.” Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1249
(10th Cir. 2013) (citation and internal quotation marks omitted). Defendant concedes that RFA
2
In his Response to Defendant’s RFAs Plaintiff admits RFA No. 8 [#22-4] and, thus, this court
does not consider this admission for purposes of the Motion to Withdraw.
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No. 6 “could be construed to admit a core element” of Plaintiff’s excessive force claim. The
court further finds that the remaining RFAs also go toward the substance of the single claim.
[#29 at 5]. For instance, RFA Nos. 1–3 seek concessions that Mr. McGrath ignored Officer
Rogers’s commands and assertions that force may be necessary; RFA No. 4 seeks a concession
that the initial blow that knocked Plaintiff to the ground was to his left leg rather than his
head/neck area as alleged in the Complaint; RFA Nos. 5–6 again seek concessions suggesting
that Plaintiff was actively resisting arrest and/or Officer Rogers’s commands, or that Plaintiff
posed a threat to Officer Rogers; RFA No. 7 seeks a concession as to the severity of the
underlying offense and potentially whether Plaintiff posed a threat to Officer Rogers; and RFA
No. 9 seeks a concession suggesting that Plaintiff’s alleged injuries may have been compounded
by his own behavior. Concessions on these points concern the “core elements” of Plaintiff’s
excessive force claim, i.e., whether Officer Rogers’s use of force was objectively reasonable
under the circumstances. Cf. Jesusdaughter v. Scoleri, No. 02-cv-00084-REB-BNB, 2007 WL
707464, at *2 (D. Colo. Mar. 5, 2007) (finding that enforcing the defendant’s deemed admissions
that he used some force on plaintiff and was not justified in doing so or using a stun gun “would
essentially concede” the plaintiff’s excessive force claim).
Second, the court also concludes that Officer Rogers fails to demonstrate that he will
suffer prejudice should the admissions be withdrawn. He argues that the court is “well aware of
[his] attempts to secure Plaintiff’s deposition and, thus far, his being denied opportunity to
question Plaintiff at deposition due entirely to circumstances outside Defendant’s control.” [#29
at 5]. Defendant further argues that he has also been prejudiced by the delay in his ability to
serve “any follow-up discovery requests” following Plaintiff’s deposition. [Id.]. As an initial
matter, it appears that information regarding RFA Nos. 1–9, is also within Defendant’s control.
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Therefore, while this court understands that Defendant seeks admissions from Plaintiff,
Defendant is not entirely without recourse as to discovery into those issues. In addition, as
Plaintiff notes, the discovery deadline has since been extended to May 4, 2018, providing
additional time for Defendant to conduct Plaintiff’s deposition. This court fully expects Plaintiff
to make the necessary accommodations to ensure that his deposition occurs before the discovery
cut-off. See Rapp v. Hoffman, No. 13-cv-00908-RM-BNB, 2014 WL 5073353, at *2 (D. Colo.
Oct. 8, 2014) (finding no prejudice to the plaintiff resulting from the withdrawal of the
defendant’s admissions where the court had extended discovery and intimating that further
extensions would be granted). To the extent that Plaintiff fails to make himself available for a
properly noticed deposition, Defendant may seek relief under Rule 37(d) of the Federal Rules of
Civil Procedure. Further, Plaintiff’s Response to the RFAs was only 11 days late, see Raiser,
409 F.3d at 1247 (finding no prejudice where response was 14 days late), well before the original
discovery deadline of March 5, 2018. While acknowledging Defendant’s frustrations with the
delay in deposing Plaintiff, this court is not convinced that this is a sufficient reason for finding
prejudice if the admissions are withdrawn, given the opportunity to properly notice the
deposition now.
Based on the foregoing, the Motion to Withdraw is GRANTED. Plaintiff’s deemed
admissions are WITHDRAWN and Defendant shall ACCEPT Plaintiff’s Responses filed
January 9, 2018 [#22-4].
II. Discoverability of Plaintiff’s Mental Health Records
The court now turns to whether Plaintiff should be compelled to produce his mental
health records. Originally, Plaintiff sought non-economic damages for emotional distress, but
has since withdrawn them. However, Defendant continues to insist that he is entitled to
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discovery of Plaintiff’s mental health records, as any psychotherapist-patient privilege has been
waived.
The psychotherapist-patient privilege serves to protect “confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or treatment . . .
from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” Jaffee v.
Redmond, 518 U.S. 1, 15 (1996). Like others, the privilege is not absolute and is subject to
waiver. See id. at 15 n.14; Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)
(collecting cases holding the privilege waived where a plaintiff places her mental condition at
issue). In this district, the psychotherapist-patient privilege is deemed waived if the plaintiff
places her mental condition at issue by seeking damages for emotional distress. See, e.g., Fisher
v. Sw. Bell Tel. Co, 361 F. App’x 974, 978 (10th Cir. 2010) (affirming district court’s conclusion
that the plaintiff waived the psychotherapist-patient privilege by requesting emotional distress
damages); Fox v. Gates Corp., 179 F.R.D. 303, 306 (D. Colo. 1998) (concluding the plaintiff
waived her psychotherapist-patient privilege by asserting claim for emotional distress damages);
Carbajal v. Warner, No. 10-cv-02862-REB-KLM, 2013 WL 1129429, at *5 (D. Colo. Mar. 18,
2013) (“Plaintiff seeks damages for emotional distress. He has placed his psychological
condition at issue. Thus, the psychotherapist-patient privilege has been waived.”).
3
Here, Plaintiff originally sought damages for emotional distress in addition to
humiliation, loss of enjoyment of life, and “other pain and suffering.” [#1 at 6]. Defendant then
sought information regarding Mr. McGrath’s mental health records—an issue brought before this
3
Other courts, however, have found that a “garden variety” claim for emotion distress damages
does not act as a waiver of the psychotherapist-patient privilege, unless the plaintiff
“affirmatively plac[es] the substance of the advice or communication directly in issue.” St. John
v. Napolitano, 274 F.R.D. 12, 18 (D.D.C. 2011) (citations omitted); see also Hucko v. City of
Oak Forest, 185 F.R.D. 526, 529 (N.D. Ill. 1999) (“[T]he plaintiff in this case has not waived the
psychotherapist-patient privilege merely by asserting that the defendants’ alleged misconduct
caused him to suffer emotional harm.”).
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court at the February 6, 2018 Discovery Hearing. See [#24]. Plaintiff objected to the production
of this information on grounds of the psychotherapist-patient privilege, while Defendant argued
that Plaintiff had waived the privilege by placing his mental condition at issue. Plaintiff,
however, now indicates to the court that he “hereby waives any and all claims of emotional
distress, and likewise waives any and all claims for compensation related to emotional
distress, and agrees not to present any medical records, testimony, or other evidence which
touches on the issue of emotional distress in any way.” [#25 at 2 (emphasis in original)].
Based on this waiver, Plaintiff argues that his mental health records retain the protections of the
psychotherapist-patient privilege and are not relevant to his excessive force claim. [Id. at 4–5].
In light of this waiver, the undersigned ordered Officer Rogers to respond with any
specific authority that permitted him to continue to seek Plaintiff’s mental health records. See
[#27]. Defendant now argues that “[o]nly if Plaintiff broadly waives claims for mental pain and
suffering and claims for loss of enjoyment of life in addition to, in conjunction with, and to the
same degree as the waiver set forth in [Plaintiff’s brief [#25]] will Defendant consider Plaintiff’s
mental health records” protected from disclosure or discovery. [#28 at 2]. Defendant maintains
that, because Plaintiff purportedly seeks an entitlement to damages for “mental pain and
suffering, shame, embarrassment, zero self-confidence, and loss of enjoyment of life,” but has
not waived claims for these damages, the psychotherapist-patient privilege does not protect his
mental health records. [#28 at 6 (brackets and internal quotation marks omitted)]; see also [#29-
1]. Defendant suggests that Plaintiff’s damages for pain and suffering “are so inseparable from
alleged emotional distress” that Plaintiff’s mental condition is still at issue, thereby waiving the
psychotherapist-patient privilege. [Id. at 5].
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While in certain instances a court may find the plaintiff’s mental health records relevant,
given the plaintiff’s alleged emotional distress, “suffering of reputation, humiliation, mental
anguish, and loss of enjoyment of life,” Carbajal v. Warner, No. 10-cv-02862-REB-KLM, 2013
WL 1129429, at *3 (D. Colo. Mar. 18, 2013), this court interprets Plaintiff’s waiver of any and
all claims associated with or relating to emotional distress to include these additional categories
of damages, cf. In re Sims, 534 F.3d 117, 134 (2d Cir. 2008) (concluding that a plaintiff may
forfeit all claims for emotional distress to avoid waiving the psychotherapist-patient privilege).
Plaintiff even clarifies in his Reply Brief that “he agrees to limit his noneconomic damages to the
pain and suffering stemming directly from the broken leg, and necessary medical treatment,
caused by the Defendant’s [actions].” [#31 art 1]. “[M]edical expenses are not the only measure
of compensatory damages, which [may] also account for factors such as the nature and extent of
injury, physical impairment, and pain and suffering.” Therrien v. Target Corp., 617 F.3d 1242,
1258–59 (10th Cir. 2010); accord Artery v. Allstate Ins. Co., 984 P.2d 1187, 1191–92 (Colo.
App. 1999) (defining damages to include pecuniary compensation for an injury suffered, and
explicating that medical expenses and pain and suffering “are damages that may be sought for a
claim of personal injury.”). And, based on Plaintiff’s representations to the court, it does not
appear that Plaintiff seeks damages for mental pain and suffering; indeed, his Complaint refers
only to “other pain and suffering.” [#1 at 6].
Based on the foregoing, this court concludes that the psychotherapist-patient privilege
precludes discovery or disclosure of Mr. McGrath’s mental health records. And, given his
forfeiture of all damages associated with emotional distress, those records are no longer relevant
to the claim at issue and Mr. McGrath has not otherwise waived the psychotherapist-patient
privilege. Should Mr. McGrath try to seek compensation for emotional distress or
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emotional/mental pain and suffering damages at a later date, Defendant is free to seek to compel
such mental health records at that time.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1) Plaintiff Dakota Tyler McGrath’s Motion Pursuant to Federal Rule of Civil
Procedure 36(b) to Permit Admissions to be Withdrawn or Amended [#22] is GRANTED.
Plaintiff’s deemed admissions are WITHDRAWN and Defendant shall ACCEPT Plaintiff’s
Responses filed January 9, 2018 [#22-4]; and
(2) Plaintiff’s objections to production of his mental health records based on the
psychotherapist-patient privilege [#25; #31] are SUSTAINED and Defendant’s request for
production of such documents is OVERRULED.
DATED: March 30, 2018 BY THE COURT:
_________________________
Nina Y. Wang
United States Magistrate Judge
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