The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court are Defendant Ada County's Motion to Dismiss (Docket No. 9); Plaintiff's Motion to Strike the Affidavit of Rene Nelson (Docket No. 12); Plaintiff's Motion to Expedite Discovery (Docket No. 13); Plaintiff's Motion for relief pursuant to Rule 56(f) (Docket No. 16); and Defendant's Motion for Protective Order regarding Plaintiff's Motion to Conduct Expedited Discovery (Docket No. 22).
All parties have consented to proceed before a United States Magistrate Judge. (Docket No. 24.) Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, these matters will be decided on the record before this Court without oral argument. Dist. Idaho Loc. Civ. R. 7.1.
Plaintiff Mark Wicklund ("Wicklund") filed a complaint on December 22, 2009, against Defendant Ada County and as yet unnamed individual employees of the Ada County Prosecuting Attorney's Office. (Compl. ¶ 1--3, Docket No. 1.) In the two count Complaint, Wicklund seeks relief under 42 U.S.C. § 1983, alleging that Defendants violated his Fifth and Fourteenth Amendment rights to substantive due process, and were negligent, because they destroyed and removed "properly filed documents" in his pending criminal case. The general allegations follow:
8. In June 2009, Plaintiff, through counsel, filed a Motion for Early Release from Probation. Accompanying the Motion were two affidavits. Both affidavits were filed at the time the motion was filed.
9. Upon information and belief, individuals from the Ada County Prosecuting Attorney's Office removed the accompanying affidavits from the court file and removed the entry of those documents from the register of action.
10. The district judge assigned to this case denied the motion without hearing, based, at least in part, on the absence of the accompanying affidavits.
11. The removal and destruction of these filings constitutes a denial of the Plaintiff's right to due process under the law. (Compl. ¶ 8--11, Docket No. 1.)
Wicklund alleges that Defendants deprived him of his due process rights by "tampering with a court file, removing filings and removing evidence of the removal of those filings," which actions "guaranteed denial of the Plaintiff's motion" for early release from probation. (Compl. ¶ 15--16, Docket No. 1.) Wicklund's second cause of action alleges that Defendants "breached their duty" of due care by removing items from the court file when they "knew, or should have known, that doing so would deprive the Plaintiff of his due process rights." (Compl. ¶ 21, Docket No. 1.)
On February 5, 2010, Ada County filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 12(d), submitting with its motion the Affidavit of Rene Nelson, Associate Director of the Clerks Division of the Ada County Clerk of the Court, with attached certified copies of records from the court case file for criminal case number CR-FE-2001-0000496, State of Idaho v. Mark Wicklund. (Docket No. 9.)*fn1
Ms. Nelson asserts that she supervises the court clerks of Ada County and ensures accurate records are entered and maintained for the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada. She stated that she "examined the Register of Actions and the documents contained in the court case file for criminal case number CR-FE-2001-0000496, State of Idaho v. Mark Wicklund." Attached to her affidavit as Exhibit A is a certified copy of the Register of Actions. According to the case file Ms. Nelson examined, Wicklund was charged in 2001 with soliciting sex acts from a child. Thereafter, Wicklund was placed on probation, and later charged with violating probation. On August 8, 2008, according to the certified copy of the order attached to Ms. Nelson's affidavit, the Honorable Thomas F. Neville issued an order reinstating, amending, and extending Wicklund's probation through November 13, 2011. Wicklund acknowledged the order by signing a copy of it on April 28, 2009. (Aff. of Nelson Exs. B, C, Docket No. 9-2.)*fn2
The next document attached to Ms. Nelson's affidavit is a certified copy of Wicklund's Motion for Early Release from Probation, filed on June 10, 2009, by Wicklund's attorneys, Dennis M. Charney and Jacob D. Deaton, of the firm Charney and Associates, PLLC. (Aff. of Nelson Ex. D, Docket No. 9-2.) In the motion, Wicklund requested early release from probation. The motion states: "attached to this motion is one page from the offender history maintained by the department of probation and parole. . . . a statement from Chip Morgan, the polygrapher involved in Mr. Wicklund's probation as well as a statement from Dave Ferguson, a treatment specialist for SANE." (Id.)
Ms. Nelson avers in her affidavit that on June 10, 2009, the Ada County Clerk received a six-page facsimile transmission from telephone number 938-9504, which is the phone number for the law firm Charney and Associates, PLLC. The facsimile stamp at the top of Exhibit D indicates that the facsimile transmission was six pages, that all six pages were received, and it came from "remote CSID 9389504," the facsimile telephone number for Charney and Associates according to the document header. However, pages three through six consisted of three pages of offender history, and one page of the Judgment of Conviction entered by Judge Neville on November 13, 2001. (Id.) Judge Neville's handwritten order dated July 9, 2009, denied the motion without a hearing and states: "while no statements from Chip Morgan or Dave Ferguson were attached, the basis for the motion asks the Court to 're-hash' old issues, but in any event is an unpersuasive grounds even if it were true." (Id.) Ms. Nelson states that the Motion for Early Release From Probation and other documents received in the transmission "appear in the Register of Actions in compliance with the policy of the Ada County Clerk." (Id., Aff. of Nelson ¶ 9.)
The next document that Ada County received was a seven-page facsimile transmission entitled Motion to Reconsider submitted on July 17, 2009, again from telephone number 938-9504. According to the facsimile stamp at the top of the document, all seven pages were received. (Id. Ex. E.) In the motion to reconsider, Wicklund, through his attorney Dennis Charney, requested reconsideration of the court's prior order denying his request to amend the terms of his probation. The motion states also that "[a]ttached to this motion to reconsider are the documents that were supposed to be considered by the court. It is respectfully requested that the court review these documents and reconsider its prior order." (Id.) Attached to the two page motion is a two page letter from Dave Ferguson to Dennis Charney, and a three page statement from Chip Morgan. On July 22, 2009, Judge Neville handwrote an order on page two of the motion, denying Wicklund's motion without a hearing. Ms. Nelson states that the Motion for Reconsideration and other documents received in the facsimile transmission "appear in the Register of Actions in compliance with the policy of the Ada County Clerk." (Id., Aff. of Nelson ¶ 12.) Ms. Nelson states also, and the Register of Actions confirms, that no notice of appeal of the two orders was ever filed by Wicklund. (See Id., Ex. A.)
In response to Ada County's motion to dismiss, Wicklund filed a motion to strike the Affidavit of Rene Nelson on February 27, 2010, contending that it included inadmissible testimony because it was not based upon Ms. Nelson's personal knowledge, lacked foundation, and dealt with matters to which she was not competent to testify. (Docket No. 12.) In addition, on March 1, 2010, Wicklund filed a responsive brief to the motion to dismiss, addressing the arguments advanced by Ada County in favor of dismissal. (Docket No. 20.) Ada County filed a reply brief on March 18, 2010, and while Ada County argued it was unnecessary, submitted an amended affidavit of Rene Nelson to address the issues Wicklund raised in the Motion to Strike. (Docket No. 18.) Wicklund objected to Ada County's filing of the amended affidavit.
Although Wicklund submitted a responsive brief to the Motion to Dismiss, Wicklund had previously filed two related motions seeking to conduct discovery and/or stay the proceedings until discovery could be conducted so that he could adequately prepare a responsive brief. On February 27, 2010, Wicklund filed a Motion to Expedite Discovery in which he argued discovery was necessary for him to rebut the factual basis for Ada County's Motion to Dismiss. (Docket No. 13.) Wicklund asserted that "good cause" existed to conduct discovery prior to the Rule 26(f) conference because "all of the documents and witnesses necessary to establish a genuine issue of material fact are in the Defendant's control." (Mem. at 2, Docket No. 13.)
On March 1, 2010, Wicklund advanced the same argument in his Motion for Relief Pursuant to Rule 56(f). (Docket No. 16.) Wicklund's attorney submitted an affidavit stating he had tried to conduct initial discovery but had not received a response from Ada County. (Docket No. 16-1.) Wicklund claims "[d]iscovery is vital in this case because I have been unable to discover any witness not in Defendant's employ with personal knowledge of the facts of this case," and such a witness is "necessary" to prepare an affidavit in opposition to Ada County's Motion to Dismiss. In response to Wicklund's motions, Ada County filed a Motion for Protective Order on March 23, 2010, arguing that discovery was unnecessary because the matter could be decided based upon legal grounds and any information necessary to rebut Ms. Nelson's affidavit was within the exclusive control of Mr. Wicklund himself. (Response at 2, Docket No. 21.)
Based upon the above, the Court finds it appropriate to discuss the discovery related motions first; next address the motion to strike; and finally, address the motion to dismiss.
A. Plaintiff's Motion to Expedite Discovery (Docket No. 13); Plaintiff's Motion For Relief Pursuant to Rule 56(f) (Docket No. 16); and Defendant's Motion for Protective Order regarding Plaintiff's Motion to Conduct Expedited Discovery (Docket No. 22)
Wicklund's two motions to conduct discovery ask for the same relief. In his first motion, Wicklund contends that he should be permitted to conduct discovery because Ada County filed its motion to dismiss prior to the Rule 26(d) conference, and without discovery, Wicklund is unable to respond. Rule 26(d) prohibits parties from seeking discovery before the parties have conferred under Rule 26(f). Wicklund argues that good cause exists to permit discovery because the documents and witnesses necessary to establish a genuine issue of material fact are in Ada County's control. (Mot. at 2, Docket No. 13.)
In his Rule 56(f) motion, Wicklund requests a continuance of the proceedings on the motion to dismiss until discovery has been completed, again on the grounds that all witnesses with personal knowledge are in Ada County's employ. (Aff. of Deaton ¶ 4, Docket No. 16-1.) Ada County responded to both motions with a motion for protective order seeking to prevent any discovery, on the grounds that Ada County employees would be entitled to absolute immunity and/or qualified immunity; the facts as stated in the Complaint do not establish the deprivation of a constitutionally protected right; the Complaint does not allege that any custom or policy was violated sufficient to establish liability on the part of Ada County; and Wicklund could have come forward with his own evidence, but did not do so.
Rule 26(d) permits discovery prior to the Rule 26(f) conference when authorized by court order. When evaluating a request for expedited discovery, courts have applied the "good cause" standard. Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). "Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." Semitool, Inc., 208 F.R.D. at 276. The discovery sought, however, must be relevant, and there must be good cause to provide immediate access to the discovery sought rather than postponing its ultimate production during the course of the proceedings. Id.
Rule 56(f) allows a party opposing a motion for summary judgment*fn3 who, for legitimate reasons, cannot by affidavit or other means present facts essential to justify opposition to an opposing party's motion under Rule 56(e). Similar to the good cause standard enumerated for Rule 26(d), Rule 56(f) requires "(a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists." Sultana Resources, LLC v. Trio Gold Co., No. CV-06-625-BLW, 2007 WL 2993849, at *1 (D. Idaho Oct. 11, 2007) (quoting Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004)). The party submitting the motion bears the burden of showing sufficient facts establishing that the evidence sought exists and that the evidence would prevent summary judgment. Sultana, 2007 WL 2993849 at *1. "Mere hope that further evidence will develop prior to trial is insufficient." Id.
It is generally accepted in the Ninth Circuit that, where a summary judgment motion is filed early in the litigation and a party has not had a realistic opportunity to pursue discovery relating to its theory of the case, the court should freely grant a Rule 56(f) motion. Mangum v. Action Collection Serv., Inc., No. CV-05-507-BLW, 2006 WL 2224067, at *1 (D. Idaho Aug. 2, 2006). Nevertheless, if the party seeking discovery cannot demonstrate that the discovery will address the issue to be decided, it is appropriate to deny the Rule 56(f) motion. See U.S. v. 5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1363 (9th Cir. 1986) ("A Rule 56(f) request must demonstrate 'how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.'"); Jackson v. Cintas Corp., 425 F.3d 1313, 1318 (11th Cir. 2005) (upholding the denial of a Rule 56(f) motion when the employee made no showing how the discovery would have any impact on the enforceability of the arbitration clause). A district court does not abuse its discretion by denying a Rule 56(f) motion where the proposed discovery would be futile. Burlington Northern & Santa Fe Ry. Co. v. The Assiniboine, 323 F.3d 767, 773 (9th Cir. 2003).
In this case, Wicklund has made an inadequate showing of good cause under Rule 26(d), and no showing under Rule 56(f) as to the specific information he seeks. Wicklund does not identify what information he seeks; explain how the identified information would be relevant; or the basis for any belief that the identified information actually exists. In both motions, Wicklund simply states "information" in general is "necessary" without any further details. Nor does Wicklund demonstrate that the discovery sought will address the legal issues to be decided. Ada County contends that, even if Wicklund's allegations are true, as a matter of law, the Complaint fails to state a cause of action. Thus, it is difficult to understand how discovery would be relevant to decide the legal issues, because the Court is being asked to assume the facts stated in the Complaint are true.
Moreover, for a very simple reason, the requested discovery would be futile. Ada County submitted the affidavit of Ms. Nelson with certified copies of actual pleadings submitted in State v. Wicklund, Ada County criminal case number CR-FE-2001-0000496. Wicklund did not offer any evidence that Ada County incorrectly identified the criminal matter that Wicklund described in his Complaint, and from which he alleges documents were taken from the record. The Register of Actions, along with certified copies of actual pleadings, establish that on June 10, 2009, Wicklund's counsel filed by facsimile a six page document entitled "Motion for Early Release From Probation" containing three pages of offender history and one page of Judge Neville's Judgment of Conviction dated November 15, 2001. Then, on July 17, 2009, the certified copy of the Motion to Reconsider establishes that Wicklund's counsel filed a seven page document with a letter from Dave Ferguson and a statement from Chip Morgan, the very documents Wicklund apparently alleges were taken from the file. Wicklund did not refute these statements by Ms. Nelson.
It is beyond comprehension what evidence Wicklund needs other than evidence in his or his attorneys' possession to refute the above allegations. First, Wicklund possesses knowledge whether the records Ada County identified are indeed the correct records described in the Complaint and which Wicklund contends were removed from the court's file or otherwise tampered with. Yet Wicklund does not refute that the documents Ms. Nelson identified were in fact the documents his attorney submitted to the Fourth District Court in and for the District of Idaho, County of Ada, in State v. Wicklund, Ada County criminal case number CR-FE-2001-0000496. Second, according to the certified copies of the pleadings submitted in State v. Wicklund, the certificate of mailing appended to the pleadings as well as the attorney information above the captions, establishes that Wicklund's current counsel was a member of the firm Charney and Associates, and was presumably representing Wicklund at the time the documents allegedly were removed from the court file after their submission. Wicklund's attorney would be privy to the information he faxed to the court. Therefore, Wicklund's attorney possesses or has access to the documents filed via facsimile without submitting discovery to Ada County's employees. The attorney's own records would establish what was filed via facsimile, and could then ...