-KLS Dudgeon v. Cunningham et al, No. 3:2010cv05372 - Document 39 (W.D. Wash. 2010)
Court Description: ORDER denying 33 Motion to Compel signed by Magistrate Judge Karen L Strombom.(MET) cc: Plaintiff
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-KLS Dudgeon v. Cunningham et al Doc. 39 1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 3 4 CECIL DUDGEON, No. C10-5372 RBL/KLS 5 Plaintiff, 6 7 8 v. ORDER DENYING MOTION TO COMPEL PRODUCTION KELLY CUNNINGHAM, CAREY STURGEON, MELISSA SOHLSTROM, and JOSEPH MITROVICH, 9 Defendants. 10 Plaintiff Cecil Dudgeon is civilly committed as a sexually violent predator to the Special 11 12 Commitment Center (SCC) pursuant to Wash. Rev. Code 71.09. Mr. Dudgeon filed this action 13 claiming that Defendants Kelly Cunningham, Carey Sturgeon, Melissa Green (formerly 14 Sohlstrom), and Joseph Mitrovitch violated his civil rights when they denied him access to a 15 16 calendar containing family photographs. ECF No. 1. Presently before the court is Plaintiff’s Motion to Compel Production of Discovery. ECF No. 33. The court has carefully reviewed the 17 18 19 20 motion and supporting declaration, Defendants’ Response and supporting declaration (ECF Nos. 35 and 36), and Plaintiff’s Reply (ECF No. 38). For the reasons stated below, the court finds that the motion should be denied. 21 22 23 STATEMENT OF FACTS A. Plaintiff’s Allegations In his complaint, Mr. Dudgeon alleges that on February 2, 2010, he received an “8 ½ by 24 11-inch booklet style calendar prepared and sent to him by a member of his immediate family.” 25 26 ECF No. 1, p. 5. The calendar contained a calendar for each month of the year 2010, with a ORDER - 1 Dockets.Justia.com 1 collage of computer generated photographs of family members on the facing pages. Id. The 2 same type of calendar had been prepared and sent to Mr. Dudgeon in prior years and he had been 3 permitted to keep the calendar without any pre-approval by SCC staff. Id. Mr. Dudgeon alleges 4 that he was denied approval to keep the 2010 calendar based on his “offense history,” which 5 consisted of sexual improprieties with females who were not fully sexually developed.” Id., p. 7. 6 7 Mr. Dudgeon claims that these allegations as to his offense history are untrue and unfounded and 8 that the calendar in question contained no sexually explicit images nor were any of the 9 photographic images in violation of SCC policy. Id., p. 7. Mr. Dudgeon claims that the false 10 allegations will be used for “unwarranted governmental interference in the delivery of [his] mail 11 in the future.” Id., p. 9. 12 B. SCC Mail Policy and Denial of Calendar1 13 It is SCC policy to review photos that come into the institution to ensure they are not 14 15 detrimental to the treatment environment. ECF No. 13, ¶ 2. Pursuant to SCC Policy 208, 16 Sexually Explicit, Violent and Related Material, SCC prohibits a resident from possessing or 17 viewing representations of persons identified as being in the resident’s victim range/profile(s) 18 and images of past victims. ECF No. 13, ¶ 3. It is the professional judgment of SCC officials 19 20 that it is counter therapeutic for individuals in a total confinement facility for sexually violent predators to possess pictures or media that depict their victim range or profile because these 21 22 23 materials may be used for masturbation purposes and reinforce their deviant sexual interests. Id., ¶ 4. This is especially problematic for residents like Mr. Dudgeon, who are not addressing and 24 25 26 1 A more detailed recitation of the facts and evidence may be found in the court’s report and recommendation relating to Mr. Dudgeon’s motion for preliminary injunction. ECF No. 19. Presented here are the facts and evidence relevant to Mr. Dudgeon’s discovery requests. ORDER - 2 1 attempting to manage their deviant sexual interests by participating in treatment. Id.; ECF No. 2 12, ¶ 9. 3 4 If mail sent to a resident contains photographs, the mail is held to allow the resident’s Clinical Director or the Program Area Manager to decide whether the item is appropriate for the 5 resident to possess. ECF No. 14, ¶ 5. In this case, Mr. Dudgeon’s Program Area Manager 6 7 Melissa Green, and Joseph Mitrovitch, the Psychology Associate assigned to Mr. Dudgeon, 8 reviewed the photographs, Mr. Dudgeon’s offense history, Mr. Dudgeon’s New Admission 9 Profile (NAP) and most recent Annual Review (AR), and Mr. Dudgeon’s offense history. Dkts. 10 11 and 12. The NAP is compiled by a clinical staff member (i.e., a psychologist or psychology 11 associate) when a resident is initially transferred to the SCC. The NAP contains basic 12 information about a new resident such as their date of birth and county where the State filed the 13 civil commitment petition. It also includes a short narrative of the resident’s sex offender 14 15 history, prior diagnoses, and any prior treatment. Dkt. 13, ¶ 5. The AR is a document generated 16 on an annual basis by a psychologist from SCC’s Forensic Services Unit, and contains among 17 other things, the resident’s diagnosis, a discussion on their progress in treatment if applicable, 18 their behavior at the institution over the past year, and an opinion as to whether the resident still 19 20 meets the statutory criteria as an Sexually Violent Predator (SVP). ECF No. 13, ¶ 6. The calendar included photographs of young girls and young women of the age 21 22 23 consistent with the victims identified in Mr. Dudgeon’s NAP and AR. ECF No. 11, ¶ 9; ECF No. 12, p 9. Based on Mr. Dudgeon’s offense history, Ms. Green and Mr. Mitrovitch determined 24 that the photos violated SCC policy because they were representations of persons identified as 25 being in Mr. Dudgeon’s victim range and profile. Id. Mr. Mitrovitch was also concerned 26 because Mr. Dudgeon does not participate in sex offender treatment and therefore it was ORDER - 3 1 unknown if the photos would be a trigger for Mr. Dudgeon, or how he would use them. ECF No. 2 12, ¶ 10. 3 C. 4 Discovery Requests at Issue Mr. Dudgeon seeks to compel Defendant Carey Sturgeon’s answers to the following 5 interrogatories: 6 7 8 9 INTERROGATORY No. 5: How many individuals do you have on your full time staff who are licensed to practice psychology in the State of Washington? INTERROGATORY No. 6: Of those individuals referred to in Interrogatory No. 5, how many are Board Certified in the diagnosis and treatment of sexual disorders? 10 11 12 13 14 15 16 INTERROGATORY No. 7: Do those individuals on your staff who meet the criteria listed in Interrogatories No. 5 and No. 6 conduct all the sexual deviancy treatment programs and activities being conducted at the SCC? INTERROGATORY No. 9: During all the treatment activities or evaluation processes, individual or group, being conducted at the SCC by other than a licensed psychologist, is there a licensed psychologist in the immediate vicinity supervising the non-licensed individual conducting the activity and/or does a licensed psychologist subsequently review the conclusions and recommendations of the individual conducting each activity? 17 See ECF No. 35, Exh. 1. To each of the above interrogatories, defendants responded: 18 19 “Objection-relevancy. The information requested is not relevant to the subject matter of the case 20 and is not reasonably calculated to lead to the discovery of admissible evidence.” ECF No. 36, 21 pp. 1-2. Mr. Dudgeon has been provided with copies of the curricula vitae of Defendants 22 Melissa Green and Joseph Mitrovich. Id., p. 2. Defendants did not further respond or 23 provide any supporting documents to the interrogatories in question. Id. 24 25 26 ORDER - 4 STANDARD OF REVIEW 1 2 3 4 5 Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may obtain discovery of relevant information. Relevant information is defined as information that is Areasonably calculated to lead to the discovery of admissible evidence.@ Fed. R. Civ. P. 26(b)(1). The Court may deny relevant discovery, however, if the Aburden or expense of the proposed 6 7 discovery outweighs its likely benefit.@ Fed. R. Civ. P. 26(b)(2)(iii). DISCUSSION 8 9 Mr. Dudgeon argues that he has a substantial need for evidence relating to the 10 qualifications of SCC clinical staff members “whose decisions have directly impacted” him and 11 the matters at issue in this lawsuit. ECF NO. 33, p. 2. He also argues that “serious questions 12 have arisen regarding the qualifications of Defendants “and other SCC clinical staff” with whom 13 Defendants have “undoubtedly conferred and been influenced by and relied upon.” Id. 14 15 Defendants respond that Mr. Dudgeon seeks information about non-parties and about 16 activities that have no relevance to the claims asserted in this case. In reply, Mr. Dudgeon states 17 that Defendants Green and Mitrovich denied him possession of the photo calendar based on their 18 “professional judgment,” and therefore, he is entitled to discover what qualifications they possess 19 20 to make such judgments. ECF No. 38, pp. 3-4. Defendants concede that the Defendants’ qualifications are relevant to Mr. Dudgeon’s claims. The record reflects that Mr. Dudgeon has 21 22 23 24 been provided with copies of Ms. Green’s and Mr. Mitrovich’s curricula vitae and that they answered discovery propounded to them by Mr. Dudgeon related to their qualifications. ECF No. 36, p. 1. 25 26 ORDER - 5 1 As to the qualifications of other SCC clinical staff, Mr. Dudgeon has provided no 2 explanation as to why the information he seeks is relevant to his claims or is reasonably 3 calculated to lead to the discovery of admissible evidence. 4 For example, in Interrogatory No. 5, Mr. Dudgeon asks “[h]ow many individuals do you 5 have on your full time staff who are licensed to practice psychology in the State of Washington?” 6 7 ECF No. 35, Exh. 1, p. 5. The qualifications of clinical staff employees is not relevant to 8 whether Defendants Green and Mitrovich exercised professional judgment in determining 9 whether it was appropriate for Mr. Dudgeon to possess the photo calendar. 10 11 12 In Interrogatory No. 6, Mr. Dudgeon asks, “Of those individuals referred to in Interrogatory No. 5, how many are Board Certified in the diagnosis and treatment of sexual disorders?” ECF No. 35, Exh. 1, p. 5. As noted above, there is nothing to indicate that the 13 qualifications of SCC clinical staff who were not involved in the decision to withhold Mr. 14 15 16 Dudgeon’s calendar are in any way relevant to Mr. Dudgeon’s claims. In Interrogatory No. 7, Mr. Dudgeon asks, “Do those individuals on your staff who 17 meet the criteria listed in Interrogatories No. 5 and No. 6 conduct all the sexual deviancy 18 treatment programs and activities being conducted at the SCC?” ECF No. 35, Exh. 1, p. 5. 19 20 Exhibit 1, at 5. Defendants argue that the identity of the persons who conduct the sexual deviancy treatment programs at SCC and their qualifications are not relevant to Mr. Dudgeon’s 21 22 23 claims, particularly because Mr. Dudgeon declines to consent to treatment and does not participate in any sexual deviancy treatment programs at SCC. ECF No. 35, p. 4 (citing ECF No. 24 20, p. 9 and ECF No. 20, pp. 18-24). Thus, Defendants argue that it strains reason to suggest that 25 the identity and qualifications of the individuals who conduct treatment are somehow relevant to 26 ORDER - 6 1 whether the named defendants violated Mr. Dudgeon’s First Amendment rights relating to a 2 photo calendar received by him in the mail. 3 4 Mr. Dudgeon argues that he seeks information relating to the qualifications of SCC clinical staff members whose decisions have directly impacted him. ECF No. 33, p. 2. Plaintiff 5 maintains that the information he seeks is relevant because there “is a great deal of interface with 6 7 SCC clinical and other staff members involving exchanges of and feed-back on professional 8 opinions and concepts, problems and resolution approaches, individual treatment and activity 9 decisions,” and that such “interchange with fellow professional contemporaries,” necessarily 10 “mold[ed] Defendants’ thinking and decision process.” ECF No. 38, p. 4. Mr. Dudgeon also 11 believes that all who treat individual residents at the SCC who are sex offenders should be 12 licensed to practice psychology, be board certified or at least have a certificate of qualification. 13 Id. 14 15 The “interchange” on which Plaintiff relies is purely speculative and conclusory. He has 16 not shown how any SCC staff member other than the named Defendants were involved in the 17 decision to deny Mr. Dudgeon possession of the photo calendar. Moreover, as noted above, 18 those Defendants that were involved have produced information relating to their qualifications. 19 20 Mr. Dudgeon also argues that “[s]erious questions have arisen regarding the qualifications of those individuals, named as Defendants in the civil rights lawsuit mentioned 21 22 23 above, as well as other SCC clinical staff members with whom Defendants have undoubtedly conferred and been influenced by and relied upon.” ECF No. 33-1. Mr. Dudgeon provides no 24 evidence in support of this claim. Even if other SCC clinical staff are unqualified, Mr. 25 Dudgeon’s claim that this would impact the Defendants’ decision to deny Mr. Dudgeon 26 possession of the photo calendar is merely speculative. The evidence reflects that Mr. ORDER - 7 1 Dudgeon’s Program Area Manager Melissa Green, and Joseph Mitrovitch, the Psychology 2 Associate assigned to Mr. Dudgeon, reviewed the photo calendar, Mr. Dudgeon’s offense 3 history, NAP, AR, and offense history, and that they based their decision to deny him possession 4 of the photo calendar based on that review. 5 The information requested in Interrogatory No. 9 is similarly not relevant to Mr. 6 7 Dudgeon’s claims in this case. In Interrogatory No. 9, Mr. Dudgeon asks, “During all the 8 treatment activities or evaluation processes, individual or group, being conducted at the SCC by 9 other than a licensed psychologist, is there a licensed psychologist in the immediate vicinity 10 supervising the nonlicensed individual conducting the activity and/or does a licensed 11 psychologist subsequently review the conclusions and recommendations of the individual 12 conducting each activity?” ECF No. 35, Exh. 1, p. 6. Mr. Dudgeon’s claims are not related to 13 “all treatment activities or evaluation processes, individual or group,” but are related to the denial 14 15 of possession of a photo calendar he received in the mail. In addition, Mr. Dudgeon is not in a 16 specific treatment program, and he does not allege that any other clinical staff members were 17 involved in denying him possession of the photo calendar. 18 19 20 Pursuant to Federal Rule of Civil Procedure 26(b)(1), parties may obtain discovery of relevant information. Relevant information is defined as information that is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Plaintiff’s 21 22 23 request for information relating to the qualifications of other SCC clinical staff is not relevant to his claims in this case, i.e., that Defendants violated his rights when they denied him possession 24 of the photo calendar, as the information sought does not tend to make that fact more or less 25 likely true. The record reflects that Defendants have responded to Mr. Dudgeon’s requests for 26 production, interrogatories, and admissions relating to their qualifications. ECF No. 36, p. 2. ORDER - 8 1 According, it is ORDERED: 2 (1) 3 4 Plaintiff’s motion to compel Defendant Sturgeon to answer Interrogatory Nos. 5, 6, 7, and 9 (ECF No. 33) is DENIED. (2) The Clerk shall send a copy of this Order to Plaintiff and counsel for Defendants. 5 6 7 DATED this 6th day of December, 2010. A 8 9 Karen L. Strombom United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 9
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