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Sampson v. Schenck

United States District Court, Eighth Circuit

May 30, 2013

NICHOLAS SAMPSON, Plaintiff,
v.
INV. EARL SCHENCK, in his official and individual capacities; INV. WILLIAM LAMBERT, in his official and individual capacities; SGT. SANDY WEYERS, in her official and individual capacities; IN V. CHARLES O'CALLAGHAN, in his individual and official capacities; DOES 1-8, in their official and individual capacities; CASS COUNTY SHERIFF'S OFFICE, a Nebraska political subdivision; DAVID KOFOED, in his official and individual capacities; and DOUGLAS COUNTY SHERIFF'S OFFICE, a Nebraska political subdivision, Defendants, MATTHEW LIVERS, Plaintiff,
v.
EARL SCHENCK, Cass County Sheriff's Investigator; WILLIAM LAMBERT, Nebraska State Patrol Investigator; CHARLES O'CALLAGHAN, Nebraska State Patrol Investigator; SANDRA WEYERS, Cass County Sheriff's Sergeant; COUNTY OF CASS, NEBRASKA; DAVID KOFOED, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division; TIM DUNNING, Sheriff of Douglas County; and COUNTY OF DOUGLAS, Nebraska, Defendants.

ORDER

THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on the defendants', William Lambert (Lambert) and Charles O'Callaghan (O'Callaghan), Motion for Protective Order (Filing No. 593 in Sampson v. Schenck, et al., 8:07CV155; Filing No. 467 in Livers v. Schenck, et al., 8:08CV107)[1]. The defendants filed a brief (Filing No. 594) in support of the motion. The plaintiff, Nicholas Sampson (Sampson) filed a brief (Filing No. 621) and index of evidence (Filing No. 622) in opposition. The defendants filed a brief (Filing No. 633) and index of evidence (Filing No. 634) in reply.

Additionally, the defendants filed a Motion to Strike Plaintiff Sampson's Brief in Opposition to Defendants' Motion for Protective Order and Affidavit in Support Thereof (Filing No. 630). The defendants filed a brief (Filing No. 631) and index of evidence (Filing No. 632) in support of the Motion to Strike. Sampson filed a brief (Filing No. 644) and index of evidence (Filing No. 645) in opposition. The defendants filed a brief (Filing No. 652) in reply.

BACKGROUND

This case arises from an investigation into the April 17, 2006, murders of Wayne and Sharmon Stock in Murdock, Nebraska. The plaintiffs, Matthew Livers (Livers) and Sampson, were arrested and jailed awaiting trial for the murders after Livers confessed to the murders and implicated Sampson as an accomplice. Subsequently, after different individuals confessed to the murders, Livers and Sampson were released from jail and charges were dropped without prejudice.

On June 3, 2009, Sampson filed an amended complaint alleging violations of his civil rights arising from the homicide investigation. See Filing No. 232 - Amended Complaint in Sampson. Sampson filed suit seeking monetary damages for violations of his civil rights under the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution. Id. Sampson generally alleges the defendants fabricated evidence to create the appearance of probable cause to justify Sampson's arrest, arrested Sampson without probable cause, and concealed exculpatory evidence. Id. The defendants include certain Nebraska State Patrol (NSP) investigators who led the investigation into the April 17, 2006, murders. Id. ¶ 3. The defendants Lambert and O'Callaghan were NSP investigators. Id.

On April 12, 2013, Sampson served his nineteenth written discovery request upon the Douglas County Sheriff's Office (DCSO) which, in part, requested "any files, including job applications, polygraph reports or other files, on William Lambert."[2] See Filing No. 594 - Brief p. 1. The defendants seek a protective order preventing the disclosure or production of any DCSO files on Lambert, including job applications, a polygraph report, or other files. See Filing No. 593 - Motion for Protective Order p. 1. The defendants represent Lambert applied for employment with DCSO in 1993. See Filing No. 594 - Brief p. 1-2. The defendants contend this information is irrelevant and unlikely to lead to the discovery of relevant information. Id. The defendants represent they conferred with Sampson's counsel but were unable to reach an agreement. Id.

Sampson argues in the event the court denies Sampson's Motion in Limine (Filing No. 522) to exclude Sampson's polygraph evidence, Sampson may need to present evidence at trial impeaching the defendants' claim Sampson's polygraph is reliable. See Filing No. 621 - Response p. 1-2. Sampson argues such evidence would include, according to Sampson's counsel's understanding, Lambert's failed preemployment polygraph. Id.; Filing No. 622-1 - Maren Lynn Chaloupka Aff. ¶ 3. Sampson opposes a protective order that is too broad and argues the defendants have failed to show good cause for a blanket protective order. Id. at 2-5.

In reply, the defendants reiterate Lambert's employment file is irrelevant and argue Sampson submitted a false allegation that Lambert failed his polygraph. See Filing No. 633 - Reply p. 1-5. Additionally, the defendants filed the Motion to Strike Sampson's counsel's representation and unsupported allegation that Lambert failed a pre-employment polygraph. See Filing Nos. 630 - Motion to Strike; 631 - Brief in support of Motion to Strike. The defendants represent, after conferring with Lambert and Deputy Douglas County Attorney Timothy Dolan, Lambert's pre-employment polygraph did not indicate deception. See Filing No. 632-1 - David A. Lopez Aff. ¶¶ 3-4.

In response to the defendants' Motion to Strike, Sampson argues the defendants' Motion to Strike does not comply with Fed.R.Civ.P. 11. See Filing No. 644 - Response to Motion to Strike. Sampson argues the defendants did not serve the motion twenty-one days prior to filing the motion as Rule 11(c)(1)(A) requires. Id. at 4. In reply, the defendants argue the Motion to Strike complies with Fed.R.Civ.P. 11 and the defendants filed the motion after Sampson declined to remove the unsupported assertion Lambert failed a pre-employment polygraph. See Filing No. 652 - Reply to Motion to Strike.

ANALYSIS

A. Motion to Strike

In opposition to the defendants' Motion for Protective Order, Sampson stated he sought Lambert's job files, including any polygraph reports, because Sampson's counsel understands Lambert failed a pre-employment polygraph examination and such information could be used for impeachment. In support of this assertion, Sampson's counsel submitted an affidavit merely stating "it is my understanding that Lambert failed a pre-employment polygraph administered in conjunction with his application for employment by the Douglas County Sheriff's Office." See Filing No. 622-1 - Maren Lynn Chaloupka Aff. ¶ 3. The defendants state Lambert and Deputy Douglas County Attorney Timothy Dolan informed defense counsel that Lambert's pre-employment polygraph examination did not indicate deception. See Filing No. 632-1 - David A. Lopez Aff. ¶¶ 3-4.

Sampson fails to provide any reasonable evidentiary basis to support the assertion that Lambert failed a pre-employment polygraph. Sampson's counsel merely states that it is her "understanding" he failed the polygraph. In fact, the assertion appears to be false in light of Lambert's and Deputy Douglas County Attorney Timothy Dolan's representation that Lambert's pre-employment polygraph did not indicate deception. Therefore, the court will strike ...


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