Nice v. City of Akron

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion of non-parties, Matthew Meyer (“Meyer”) and the Cuyahoga County Prosecutor's Office (“CCPO”) (collectively “movants”), to quash the subpoenas issued by plaintiff, James Nice (“Nice”). (Doc. No. 29 [Mot.].) Movants also seek a protective order precluding them from submitting to a deposition or producing documents. Nice opposed the motion. (Doc. No. 31 [Opp'n].) On August 1, 2019, the Court requested that the parties provide supplemental briefing to determine whether Nice's Section 1983 claim is cognizable under Heck v. Humphrey, 512, U.S. 477, S.Ct. 2364, 129 L.Ed.2d 383 (2006). Both the Heck analysis and the motion to quash have been briefed and are ripe for a decision.

         I. Background

         The facts surrounding this action have been set forth in various Memorandum Opinions, familiarity with which is presumed. To properly frame the pending motion, however, a brief factual overview is necessary. Nice originally filed a complaint on July 10, 2018 against the City of Akron (the “City), Mayor Daniel Horrigan (“Horrigan”), and Police Chief Kenneth Ball (“Ball”) (collectively “defendants”) (Doc No. 1); the complaint was amended on December 27, 2018. (Doc No. 16 [“FAC”].) The FAC sets forth one federal claim under 42 USC § 1983 and five claims under Ohio law; all claims stem from defendants' alleged retaliation. Nice asserts that Horrigan, as newly-elected mayor, spearheaded a coordinated attack aimed at “see[ing] that [Nice] was removed as police chief.” (FAC ¶¶ 17, 22.) The attack was predicated on Nice's critical statements about then-President Barack Obama and Nice's refusal to fill the police department's ranks with individuals loyal to Horrigan. (Id. ¶¶ 19, 23.)

         The defendants ultimately forced Nice to resign and initiated an allegedly “bogus criminal investigation” into him. (Id. ¶¶ 27, 39.) To avoid the appearance of a conflict of interest, Nice's prosecution was transferred to the CCPO (Id. at ¶ 39.) “Then-Assistant Prosecuting Attorney in the [CCPO], Matthew Meyer, served as special prosecutor on the case.” (Mot. at 189.) On February 13, 2018, Nice pleaded guilty “to a single count of Attempted Unlawful Use of Property LEADS ... a first-degree misdemeanor.” (Id.)

         Nice filed the instant lawsuit on July 10, 2018 at 9:41 a.m. (FAC ¶ 44.) Less than four hours later, Meyer filed a motion to vacate Nice's guilty plea, asking the state court to “restore the case to the court's active docket, and schedule the case for trial.” (Mot. at 190, FAC ¶ 46.) Nice asserts that Meyer's motion evidences an additional abuse of the criminal process and “was intended to punish him ... for filing the instant lawsuit.” (FAC ¶ 47.) In his sixth cause of action for “Civil Conspiracy under Ohio Law, ” Nice asserts that defendants “made an agreement with the [CCPO] to maliciously retaliate against [him] for filing the instant lawsuit” and pursuant to this agreement the CCPO “attempted to vacate [Nice's] plea in order to pursue retaliatory charges against him.” (Id. ¶¶ 80, 81.)

         In furtherance of his civil conspiracy claim, Nice served a subpoena ad testificandum upon Meyer and a subpoena duces tecum upon the CCPO. (See Doc. Nos. 29-1 and 29-2.) In response, movants filed the instant motion to quash the subpoenas and for a protective order. Nice opposed the motion. (Doc. No. 31.) For the following reasons, the motion is granted in part and denied in part.

         II. Law and Analysis

         A. Heck v. Humphrey

         The Court has reviewed the parties' supplemental Heck briefing and finds that dismissal of Nice's § 1983 claim is not appropriate at this time. Section 1983 allows a plaintiff to bring a private cause of action against a person who, under color of law, deprived him or her of a Constitutional right. 42 U.S.C. § 1983. But a plaintiff may not bring a § 1983 claim to challenge the validity of an underlying criminal judgment. Heck, 512 U.S. at 486. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487.

         In Heck, the plaintiffs § 1983 claim was based solely on an unlawful investigation leading to his arrest. Heck, 512 U.S. at 479. Nice claims that the defendants deprived him of his First and Fourteenth Amendment rights by initiating a “bogus criminal investigation” against him and coercing him to resign. (FAC at ¶¶ 24, 27, 64, 65.) It is well settled that “a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (collecting cases). Because Nice's § 1983 claim is based, in part, on alleged retaliation resulting in his coerced resignation-and because defendants have failed to address the sufficiency of the forced resignation portion of Nice's § 1983 claim-Heck does not require dismissal at this stage.

         B. Motion to Quash: Standard of Review

         Movants seek to quash the subpoenas on two grounds: (1) the pendency of Meyer's motion to vacate Nice's plea^[1] (Mot. at 189-91) and (2) the records and information sought are privileged. (Mot. at 191-94.) Movants' first concern is easily alleviated, as it is moot. On July 25, 2019, the state court denied Meyer's motion to vacate Nice's plea and this Court has taken judicial notice of the denial. (See Doc. No. 37 at 279 n. 3). As such, movants' motion turns on whether the requested testimony and documents are privileged.

         Rule 45(d)(3) provides, in relevant part, a court must quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies....” Fed.R.Civ.P. 45(d)(3)(A)(iii). “A nonparty seeking to quash a subpoena bears the burden of demonstrating that the discovery sought should not be permitted.” F.T.C. v. Trudeau, No. 5:12MC35, 2012 WL 5463829, at *2 (N.D. Ohio Nov. 8, 2012) (quoting In re Smirman,267 F.R.D. 221, 223 (E.D. Mich. 2010); CH Holding Co. v. Miller Parking Co., No. 12-CV-10629, 2013 WL 4516382, at *2 (E.D. Mich. Aug. 26, 2013) (“The party seeking to quash a subpoena bears a heavy burden of proof.”). “If the documents sought by the subpoena are relevant and are sought for good cause, then the subpoena should be enforced unless the documents are privileged or the subpoenas are unreasonable, oppressive, annoying, or embarrassing.” Cleveland ...