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Settle v. Stepp

United States District Court, S.D. West Virginia, Charleston Division

August 30, 2019

JOSHUA M. SETTLE, Plaintiff,
v.
NATHAN SCOTT STEPP, Individually and as a member of the West Virginia State Police, Defendant.

          ORDER

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE.

         This is an excessive force action brought pursuant to 42 U.S.C. § 1983 and West Virginia state law. (ECF No. 1.) Plaintiff Joshua M. Settle (“Plaintiff”) alleges that Defendant Nathan Scott Stepp (“Defendant”), a West Virginia state trooper, beat him with a baton upon detaining him and attempted to cover it up. (Id.) Before this Court are Plaintiff’s motion to compel (ECF No. 32) and Defendant’s motions for protective order (ECF Nos. 30, 51). For the reasons explained more fully herein, Plaintiff’s motion to compel (ECF No. 32) is DENIED AS MOOT. Defendant’s motions for protective order (ECF Nos. 30, 51) are GRANTED IN PART and DENIED IN PART.[1]

         A. Plaintiff’s Motion to Compel (ECF No. 32)

         Plaintiff seeks an order compelling Defendant to respond to six discovery requests from his First Set of Interrogatories, Requests for Production, and Requests for Admissions. (ECF No. 32 at 2–3.) Defendant responds that he has produced the requested documents and supplemented his responses to the other requests. (ECF No. 38 at 4.) Therefore, Defendant argues, the motion to compel is now moot. (Id.)

         Plaintiff did not file a reply; however, the undersigned contacted the parties to inquire about the status of the requests. Plaintiff represented that he would withdraw the motion to compel but has not yet done so. As such, the motion to compel (ECF No. 32) is DENIED AS MOOT.

         B. Defendant’s Motion for Protective Order (ECF No. 30)

         Defendant seeks an order prohibiting his employer, the West Virginia State Police (“WVSP”), from responding to a subpoena issued to it by Plaintiff on February 25, 2019. (ECF No. 31 at 2; see ECF No. 27.) The subpoena requests various documents in the possession of WVSP’s Professional Standards Section that relate to Defendant. (ECF No. 27-2.) Defendant argues that the subpoena requests irrelevant information that has no bearing on the claims and defenses in this action. (ECF No. 31 at 5–13.) Of note, WVSP has not filed any objection to producing the information Plaintiff seeks.

         Plaintiff responds that the public has a legal right to the information requested in the subpoena and that documentation of excessive force incidents involving the defendant officer are always discoverable in a § 1983 case. (ECF No. 35 at 6–9.) Defendant replies that Plaintiff is already in possession of the requested documents related to the incident alleged in the complaint and that other allegations of excessive force against Defendant are not relevant because Plaintiff has not made claims against Defendant’s employer. (ECF No. 40 at 1–3.)[2]

         To the extent the subpoena requests information from WVSP that reflects prior excessive force incidents similar to the beating alleged in the complaint, that information is relevant to Plaintiff’s claims. At the very least, the existence of other similar incidents involving Defendant could suggest that the use of force against Plaintiff was intentional. However, because Plaintiff has made no claims against Defendant in his official capacity or against WVSP, the relevance of some of the information requested by the subpoena is tangential at best. Accordingly, Defendant’s motion for protective order (ECF No. 30) is GRANTED IN PART and DENIED IN PART. Plaintiff is entitled only to information related to prior excessive force incidents involving allegations that Defendant beat a detained suspect.

         C. Defendant’s Section Motion for Protective Order (ECF No. 51)

         Defendant also seeks an order prohibiting WVSP from responding to a subpoena issued to it by Plaintiff on April 12, 2019. (ECF No. 53 at 2–3; see ECF No. 46.) The subpoena includes ten requests for certain internal documents, recordings, and related communications. (ECF No. 46-2.) Defendant again argues that the requested information is not relevant to any claims or defenses in this case because Plaintiff has not brought any claims against WVSP. (ECF No. 53 at 6–7.) Of note, as with Defendant’s first motion for protective order, WVSP has not filed an objection to producing the requested information.

         1. Requests #1, #2, and #3

         These requests seek copies of EPA-1, EPA-2, and EPA-3 forms referring to Defendant and related documents and communications. (ECF No. 46-2 at 1.) The parties represent that these documents are essentially performance reviews. (ECF No. 53 at 8; ECF No. 55 at 6.) Defendant suggests that these documents may be contained within his personnel file, which has been produced to Plaintiff. (ECF No. 53 at 7 n.3.) However, he argues that the requested information is “generally not relevant, overly broad in scope, and not reasonably calculated to lead to the discovery of admissible evidence.” (Id. at 9.)

         Plaintiff responds that the information is relevant “not only to determine how the unlawful beating of Plaintiff affected Defendant’s employment position at the WVSP (if at all), but also to determine what these records reveal about Defendant’s similar and well-documented history of abuse and violence while on duty.” (ECF No. 55 at 6.) Defendant replies that “[w]hether Defendant’s job position, description, or expectation changed following this or any other ...


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