UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NICHOLAS KINCADE, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-234-PPS-JEM

)

THOMAS DAVIDSON and )

CITY OF LAFAYETTE, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on an oral Motion to Compel brought by Defendant City of

Lafayette and an oral Motion for Protective Order brought by Plaintiff Nicholas Kincade at a

telephonic motion hearing on April 21, 2015, along with briefing filed by Defendant Lafayette [DE

39] on April 22, 2015, and by Plaintiff [DE 40] on April 27, 2015.

BACKGROUND

This case involves claims that Defendants violated the Americans with Disabilities Act and 

Plaintiff’s constitutional rights during an October 1, 2013, interaction between Plaintiff and

Defendants resulting in injuries to Plaintiff and his wheelchair. The instant dispute arises out of

Plaintiff’s invocation of the Fifth Amendment in response to certain questions asked of him by

Defendants at his deposition. Plaintiff apparently told several people that he had been “jumped” in

the days preceding October 1, 2013: a private school security officer to whom Plaintiff spoke on

October 1, 2013, immediately preceding the incident at issue in the case; the intake officer who

completed a jail medical questionnaire after Plaintiff’s October 1, 2013, arrest; and an officer

completing an internal investigation into potential police misconduct related to the October 1, 2013,

incident. 
 Defendant Lafayette seeks to compel answers from Plaintiff about his reports of this prior

attack, arguing that if it occurred, it might have contributed to Plaintiff’s injuries or the damage to

his wheelchair, and that if it did not occur, prior inconsistent statements about his injuries would be

relevant to his credibility. Plaintiff invoked his Fifth Amendment right against self-incrimination

during his initial deposition and now seeks a protective order to preclude him from having to answer

the proposed questions about his reports of being “jumped.”

ANALYSIS

The Fifth Amendment privilege is “[n]ot limited to the criminal context” but “protects the

individual from being compelled ‘to answer official questions put to him in any . . . proceeding, civil

or criminal, formal or informal, where the answers might incriminate him in future criminal

proceedings.’” LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir. 1995) (quoting

Baxter v. Palmigiano, 425 U.S. 308, 316 (1976)) (other citations omitted). In order “[t]o be

privileged by the Fifth Amendment to refuse to answer a question, the answer one would give if one

did answer it (and answer it truthfully) must have some tendency to subject the person being asked

the question to criminal liability.” In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651,

663-64 (7th Cir. 2002) (citing United States v. Apfelbaum, 445 U.S. 115, 128 (1980)) (other citations

omitted). The possibility of prosecution need not rise to the level that the Court deems it to be

“likely;” it need only be more than “a fanciful possibility of prosecution.” Resnover v. Pearson, 965

F.2d 1453, 1462 (7th Cir. 1992) (“We cannot agree that a witness’ constitutional privilege against

self-incrimination depends upon a judge’s prediction of the likelihood of prosecution. As we made

clear in Folding Carton, ‘[I]t is only when there is but a fanciful possibility of prosecution that a

claim of Fifth Amendment privilege is not well taken.’”) (quoting In re Folding Carton Antitrust

Litigation, 609 F.2d 867, 871 (7th Cir.1979)). 

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In this case, Plaintiff argues that answering Defendants’ questions about comments he made

about being “jumped” might lead to prosecution for violating Indiana’s false informing statute, which

provides, in relevant part, that “[a] person who: (1) gives a false report of the commission of a crime

or gives false information in the official investigation of the commission of a crime, knowing the

report or information to be false . . . commits false informing, a Class B misdemeanor.” Ind. Code

§ 35-44.1-2-3(d)(1). Defendant Lafayette argues that it is unlikely that someone would face

prosecution for making a false statement about an incident unrelated to the crime being officially

investigated. It also argues that if Plaintiff made a false statement about being jumped, it would not

be false reporting within the meaning of the statute because Plaintiff was not making an official

report. However, Defendant Lafayette’s assertions that its attorney does not know of anyone being

prosecuted in a scenario like this one and that it is unlikely that Plaintiff would be prosecuted for

violating Indiana’s false informing statute are not sufficient to make the possibility of prosecution

merely “fanciful.” Accordingly, it appears that Plaintiff does have Fifth Amendment grounds for

refusing to answer some of the questions put to him. 

Defendant Lafayette provides five specific questions it wishes to have Plaintiff answer. 

Without knowing the content of Plaintiff’s truthful answer, the Court refrains from specifically

ordering him to answer any particular questions. The Court does note that the Fifth Amendment is

clearly implicated by any question invoking a response about illegal drug possession. It may also

be appropriate for Plaintiff to refuse, on Fifth Amendment grounds, to provide an answer to any

questions about statements that might be false reports of a crime. On the other hand, it appears that

some of the questions posed by Defendant Lafayette may seek information about other topics raised

during particular conversations in which the potentially false reports were also mentioned, and, to the

extent that the questions and answers relate to other statements or actions of Plaintiff and would not

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be incriminating, Plaintiff’s refusal to answer them on Fifth Amendment grounds would be

inappropriate. The Court is appreciative of Defendants’ desire to obtain information about injuries

to Plaintiff or damage to his wheelchair that may have occurred in the few days prior to October 1,

2013, but it appears to the Court that Defendants should be able to elicit that information without

reference to any potential false statements. 

To the extent that Defendant is seeking sanctions, including a stay of the case, that is

unwarranted at this stage of the case. However, invocation of the Fifth Amendment privilege is not

without consequences, and a stay or other sanctions may be appropriate. Plaintiff is reminded that

“a plaintiff[] who initiates a civil action but refuses to present evidence, cannot then prevail on the

merits with regard to those issues on which he bears the burden of proof.” Doe v. Bd. of Educ. of Oak

Parks River Forest High Sch. Dist. 200, No. 94 C 6449, 1995 WL 234563, at *3 (N.D. Ill. Apr. 18,

1995) (prohibiting plaintiff from “present[ing] evidence which bears directly upon those areas in

which he invoked constitutional protection” and reminding him that “[a]ll appropriate inferences

adverse to the plaintiff may be drawn because of the invocation of the privilege in this civil action”)

(quoting Hiley v. United States, 807 F.2d 623, 628 (7th Cir.1986)). 

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS in part Defendant City of Lafayette’s

Motion to Compel and GRANTS in part Plaintiff Kincade’s Motion for Protective Order, to the

extent described above.

SO ORDERED this 28th day of April, 2015. 

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

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