United States District Court, N.D. Ohio, Eastern Division
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
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