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Tota v. Bentley

February 21, 2008


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court are (a) Chautauqua County defendants' motion to compel plaintiff (proceeding pro se) to answer discovery demands (Docket No. 96*fn1 ) and (b) plaintiff's cross motion to withhold documents from discovery (Docket No. 102) and for a protective Order (Docket No. 103). Responses to defendants' motion were due on or before January 15, 2008, and any reply was due on or before January 22, 2008, and the motion then was deemed submitted (without oral argument) (Docket No. 99). With plaintiff's motions, responses to them were due by February 1, 2008, with reply by February 8, 2008, and all three motions were deemed submitted (without oral argument) on February 8, 2008 (Docket No. 105).


Familiarity with the facts from prior Orders in this case (see, e.g., Docket Nos. 12, 37, 64, 92) is presumed. Plaintiff filed his Complaint on July 31, 2006, alleging that, on August 4, 2003, special weapons and tactics teams from the Jamestown Police Department and Chautauqua County Sheriff's Department used excessive force upon him (see Docket No. 1, Compl.). The original Complaint named as defendants the municipal governments, Jamestown police officer Franzen, Chautauqua County Sheriff's deputy David Bentley, John Doe Jamestown Police Department Special Weapons and Tactics officers, and John Doe Chautauqua County Sheriff's Department Special Weapons and Tactics ("SWAT") officers (id.). Plaintiff alleges that, during the entry of the SWAT teams, he was "permanently" injured with respect to his back, right eye, and right shoulder blade (id. attachment, Statement of Claim ¶¶ 1, 4-6), then, after handcuffed and removed from his house, plaintiff alleged that he was thrown to the ground and kicked and billy clubbed on his head and body and an officer climbed on his back and jumped up and down upon it (id. ¶¶ 13, 14). Plaintiff sought punitive damages against defendants in the initial Complaint (id. at 5) without specifying in the summary of relief sought whether he was claiming damages for medical or other injuries (compare id. at 5 with id. at 3-4, attachment pages 4-8 (claims alleged)). The initial Complaint did not allege any emotional or psychological injuries.

Chautauqua County, Bentley, and county SWAT John Doe officers answered the initial Complaint on September 27, 2006 (Docket No. 3). The City of Jamestown answered on October 30, 2006 (Docket No. 8). The John Doe Jamestown Police Department SWAT officers and named SWAT officer Franzen had not appeared (cf. Docket No. 25, Jamestown Motion to Opt Out of Alternative Dispute Resolution, for defendants Jamestown and "all related City of Jamestown Officers and/or SWAT Officers"). After seeking discovery to identify John Doe defendants (Docket Nos. 9, 28), plaintiff moved for leave to amend the Complaint (Docket No. 78), which was granted (Docket No. 92). Plaintiff filed his Amended Complaint on December 3, 2007 (Docket No. 94). Plaintiff asserts claims against Bentley and eight other named Sheriff's Department officers*fn2 and apparently drops claims against Chautauqua County, the City of Jamestown, and employees of the Jamestown Police Department (including Franzen and the unknown John Doe city officers). According to his Amended Complaint (Docket No. 94), plaintiff seeks compensatory and punitive damages for his physical injuries as the result of the alleged excessive use of force by county SWAT officer Bentley and the other named Chautauqua County Sheriff's Department officers (id. at 5, 1, 6-7). Again, the Amended Complaint does not assert any claim for emotional or psychological injuries.

Present Motions

The Chautauqua County defendants then moved to compel plaintiff to supply medical authorizations and reports (Docket No. 96).

Following the August 3-4, 2003, incident, plaintiff was arraigned and later ordered for temporary psychiatric observation at the Rochester Psychiatric Center (Docket No. 96, Chautauqua County Defs. Atty. Aff. Ex. B, Pl. EBT Tr. at 9-12). When deposed in this action, plaintiff was asked about these stints in the Rochester Psychiatric Center, plaintiff asserted a privilege and refused to answer (id. at 12-14), asserting that he put his physical condition, not his mental condition, at issue in this case (id. at 14). Plaintiff testified that he had no recollection of the day leading up to the August 3-4, 2003, incident (Docket No. 96, Chautauqua County Defs. Atty. Aff. ¶ 7). Plaintiff then declined to testify about his mental state on August 3, 2003, again asserting privilege (id. ¶ 6, Ex. B, Pl. EBT Tr. at 33).

After the deposition, plaintiff filed an "Assertion of Claim of Privilege" (id. ¶ 8; Docket No. 93) in which plaintiff asserted the psychiatrist-patient privilege for communication (his deposition of November 8, 2007) discussing his medication and treatment while confined at the Rochester Psychiatric Center (id. ¶¶ 5, 6). In his motion for a protective order, plaintiff lists a privilege log identifying the four competency reports and a psychiatric evaluation report (Docket No. 103, Privilege Log, at page 17 of 57).

Defendants argue, however, that plaintiff placed his psychiatric condition at issue in suing here, with his psychiatric condition going to his perception and recollection of events of August 2003 (Docket No. 96, Chautauqua County Defs. Atty. Aff. ¶¶ 6, 7). They argue that plaintiff's psychiatric condition is "extremely important in the defense of this matter" (id. ¶ 7). Defendants deny plaintiff has any privilege once he sued in this action (id. ¶ 9). They object to plaintiff's failure to sign medical authorizations and service of plaintiff's complete medical records (id. ¶¶ 10-12, 13, 15).

Plaintiff then filed (without proofs of service) his motions to allow him to withhold documents from discovery (Docket No. 102) and for a protective Order (Docket No. 103). Both motions oppose producing plaintiff's psychological records as irrelevant to his action and state that he has attempted to produce his other medical records and has produced other discovery and denies that sanctions are warranted.


I. Standard

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure ยง 2288, at 655-65 (Civil 2d ed. 1994). "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1). Initial disclosure includes producing "a copy of, or a description by category and ...

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