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28 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TIMOTHY A. WHITMORE,

Plaintiff,

v.

PIERCE COUNTY DEPARTMENT OF

COMMUNITY CORRECTIONS et al.,

Defendants.

Case No. C05-5265RBL

ORDER CLOSING DISCOVERY,

RULING ON PENDING MOTIONS,

AND, RE-NOTING DEFENDANT’S

MOTION FOR PARTIAL SUMMARY

JUDGMENT

This Civil Rights action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. § 636(b)(1)(B). Plaintiff paid the full filing fee and is not proceeding in forma

pauperis. Before the court is plaintiff’s motion to compel production of discovery (Dkt. # 189). 

Defendant Brixey has responded, (Dkt. # 193), plaintiff has replied (Dkt # 195). The captions to the

motions are some what misleading as both the original motion and defendant’s response contain

multiple motions. The court will attempt to rule on each sub-motion it has identified in the

pleadings.

PROCEDURAL FACTS

This action challenges Mental Health treatment and conditions of confinement at

the Pierce County Jail. While plaintiff continues to attempt to litigate issues surrounding his

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28 ORDER - 2

probation revocation, those issues are not properly part of this litigation. As early as May 2005, the

court stated that issues surrounding his probation revocation were not and could not be part of a civil

rights action (Dkt. # 22, Report and Recommendation). In February of 2007 the court again

informed plaintiff that issues surrounding his probation revocation could not be part of this action

(Dkt. # 157, page 4). The court specifically informed plaintiff “[t]he issues in this case are

conditions of confinement at the Pierce County Jail and Mental Health treatment at the Pierce

County Jail.” (Dkt. # 157, page 4).

Discovery in this action was to be concluded by February of 2007. Defendants moved for

partial summary judgment in January of 2007, prior to the close of discovery (Dkt. # 113 and 126). 

Plaintiff objected to having to address those motions prior to obtaining discovery related to Mental

Health treatment. The court granted plaintiff a continuance (Dkt. # 157). The discovery plaintiff

placed before the court at that time dealt with mental health medication and conditions in the jail, not

the plaintiff’s probation violations. See (Dkt. # 157).

Twenty days after entering the continuance the court found it necessary to stay this action

(Dkt. # 170). The stay was entered until a discovery issue with Pierce County was addressed. 

Plaintiff was attempting to depose Jail employees and his attempts to serve subpoenas appeared to be

impeded. Pierce County quickly responded to the stay and provided information on how plaintiff

could proceed with his discovery.

Plaintiff now seeks to compel production of documents from the state defendant, as opposed

to the county defendants. The documents relate to the propriety of his probation revocation (Dkt. #

189). In particular he seeks a copy of a letter that was part of his probation violation. There was a

no contact order in place between the plaintiff and another person. The sending of a letter resulted in

probation revocation proceedings.

Plaintiff has already received a copy of the letter but, now argues the margins of the copy he

has already received were not properly copied (Dkt. # 189). In his motion plaintiff again asks for a

copy of the letter which has all the margins readable. Plaintiff also seeks a substantial amount of

statistical data on Community Corrections Officers and when they seek probation revocations. (Dkt.

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28 ORDER - 3

# 189, page 4). See Also, (Dkt. # 184 (Letter to counsel outlining the statistical data including

performance statistics for all Community Corrections Officers working in Pierce County)). Plaintiff

includes a request for sanction under Fed. R. Civ. P. 37 (a)(2)(B) (Dkt. # 189, page 4). 

In response the state defendant moves to quash a subpoena for deposition and moves for a

protective order. The state defendant also seeks to re-note the pending motions for summary

judgment (Dkt # 193).

DISCUSSION

A. Motion to Compel

Discovery in this case was left open only for outstanding discovery such as the depositions of

county employees or persons who might have information relevant to plaintiff’s Mental Health

treatment or the conditions of confinement. Plaintiff had attempted to serve a number of

subpoenas and his attempts did not result in the depositions taking place. In at least one instance,

plaintiff left subpoenas for non parties with defense counsel’s staff. The court did not envision Mr.

Whitmore again attempting to obtain copies of documents or raising any issues connected to his

probation revocation. 

Plaintiff’s attempts to obtain discovery aimed at his probation revocation or how other

Community Corrections Officers have performed their jobs is beyond the scope of this action and the

burden of providing this information far outweighs any nominal relevance the information might

have. As defense counsel noted in her March, 21, 2007 letter, discovery in this case closed February

28, 2007. “The Court did allow for more time to deal with the outstanding deposition subpoenas

you had served. This was the only discovery the Court left pending” (Dkt. # 189, attached

letter)(emphasis in original).

The court has addressed the issue of plaintiff attempting to obtain copies of the letter which

resulted in his probation revocation before (Dkt. # 170). The letter has very little, if any, relevance

to what mental health treatment plaintiff received and the conditions of confinement that plaintiff was

subjected to at the County Jail. Further, how other persons performed the job of Community

Corrections Officer in the Pierce County area is clearly not relevant to this case. Plaintiff’s motion to

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28 ORDER - 4

compel discovery is DENIED. 

B. Sanctions.

Plaintiff’s motion for sanction under Fed. R. Civ. P. 37 (a)(2)(B). Sanctions and expenses

are actually addressed in Fed. R. Civ. P. 37 (a)(4)(A, B, and C). As plaintiff did not prevail in his

motion to compel, sanctions are not appropriate.

C. Defendant Brixey’s Motion to Quash the Subpoena for Deposition of a DOC Official.

Defendant Brixey states:

A party may obtain discovery only regarding matters “relevant to the claim or

defense of any party. . . .” Fed. R. Civ. P. 26(b)(1). The Court may limit discovery if

the discovery sought “is obtainable from some other source that is more convenient,

less burdensome, or less expensive”. Fed. R. Civ. P. 26(b)(2). The court may order

that requested discovery not be had, or may be had only in a specified manner,

including limiting the type of discovery allowed. Fed. R. Civ. P. 26(c).

Furthermore, the Plaintiff has not been able to produce any means for

recording this deposition beyond his proposal to digitally record the deposition on his

own recorder. He has stated that he would have a notary public available for a limited

time. Docket Nos. 178 & 173. Defendant Brixey would not agree to this method of

recording because the Plaintiff would maintain care and control of this recording and,

as it is in digital format, could be easily manipulated. The Plaintiff has not been able to

propose any other method for recording the deposition. The Plaintiff has also failed to

provide any sort of witness fee or travel cost as required for a subpoena.

As the Court previously noted in its order dated February 22, 2007, “the issue

in this case is the adequacy of mental health treatment provided at the Pierce County

Jail, not the propriety of plaintiff’s parole revocation”. Any information regarding any

other DOC employee is irrelevant to the lawsuit filed by the Plaintiff. The Plaintiff

attempts to argue that he needs to compare other DOC employee’s work to

Defendant Brixey’s. This doesn’t make the information relevant. The Plaintiff cannot

show that the information he is seeking is remotely relevant to the lawsuit.

Defendant’s counsel has requested that he pare these questions down to questions to

only those regarding Defendant Brixey, but he has refused to do so. Docket No. 184,

Letter from Amanda M. Migchelbrink to Mr. Whitmore dated March 2, 2007; See

also Exhibit 1, Declaration of Amanda M. Migchelbrink. Defendant respectfully

requests that the Court quash the depositions because the depositions will not

produce evidence relevant to this lawsuit and the Plaintiff has failed to provide

sufficient methods for recording the deposition. 

(Dkt. # 193, pages 3 and 4).

In reply to defendant Brixey’s pleadings and motions plaintiff makes clear he is still

attempting to litigate the propriety of his probation revocation. Plaintiff is attempting to obtain a full

copy of the letter. He states:

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28 ORDER - 5

 . . . 1. Defendant Brixey is unable or unwilling to produce the whole delusional love

letter and its whole envelope; 2. The delusional love letter contained conditional

release instructions; and, 3. Defendant Brixey knew this at the time she filed her

application with the court to have my probation revoked. This information is

requested for any collateral habeas corpus claim the Good Court might be willing to

entertain with this action or for any future habeas corpus claim that might be

considered.

(Dkt. # 195, page 1 and 2)(emphasis added). The court does not entertain discovery on cases or

issues that are not before the court. To do so would violate the actual case and controversy

requirement. The letter that resulted in plaintiff’s probation revocation is not germane to this action.

With regard to the performance statistics of other Community Corrections Officers plaintiff

argues:

Rebuttal: The DOC Records are Relevant: The “reasonably calculated to lead to

discovery of admissible evidence” argument that state counsel invokes is strongly

mitigated by the arguments shown in Dkt. 184 pgs. 8-9 and Dkt. 187 pgs. 3-4. Even

so, this discovery has tremendous probative value in demonstrating several things: 1.

Defendant Brixey acted maliciously. 2. This malice was part of an improper ambient

professional and social environment enjoyed by Pierce County jail keepers and

medical personnel. 3. This customarily derogative environment in perceiving both

inmates and their medical needs created disaffection that lead to carelessness and

deliberate neglect. Therefore, it is calculated to lead to admissible evidence.

Furthermore, state counsel has provided misleading information and has not provided

the appropriate facts for determining how easily and conveniently this evidence can be

produced.

(Dkt. # 195, Page 3).

The inquiry into causation in a Civil Rights Action is individualized and focuses on the duties

and responsibilities of each individual defendant whose acts and omissions are alleged to have caused

a constitutional violation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Plaintiff has failed to

place any evidence before the court to show how defendant Brixey could be liable for any actions of

the Pierce County Jail staff. Ms. Brixey is an employee of the Washington State Department of

Corrections. Plaintiff’s argument is not well taken. Plaintiff goes on to argue defendant Brixey does

not enjoy immunity. He defines immunity from liability, as not including immunity from discovery

(Dkt. # 195, page 4). Plaintiff is in error. The Supreme Court has held:

...[W]e conclude today that bare allegations of malice should not suffice to subject

government officials either to the costs of trial or to the burdens of broad-reaching

discovery. We therefore hold that government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their

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28 ORDER - 6

conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.

 

Harlow v Fitzgerald, 457 U.S. 800, 817-818 (1982). Defendant Brixey’s motion to quash the

subpoena is GRANTED.

D. Defendant Brixey’s Motion for a Protective Order.

In the alternative, if the subpoena is not quashed, defendant Brixey asks the court to enter a

protective order. As the subpoena has been quashed, this issue appears moot.

E. Re-noting Summary Judgment Motions.

Defendant’s summary judgment motions, (Dkt., # 113 and 126), were re-noted for April 6,

2007. The case was later stayed so the court could consider discovery issues. Both motions, (Dkt. #

113 and 126), will be re-noted for May 25, 2007. Any response plaintiff wishes to make to the two

motions should be made in one document of no longer that 24 pages and must be filed on or before

May 18, 2007. Any reply must be filed on or before May 25, 2007.

The clerk is directed to send a copy of this order to plaintiff, and counsel for defendants. The

clerk is directed to remove docket number 189 from the court’s calendar and re-note Docket

numbers 113 and 126 for May 25, 2007.

DATED this 27 day of April, 2007.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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