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King v. Harwood

United States District Court, W.D. Kentucky, Louisville Division

September 30, 2019

TODD HARWOOD, Defendant.



         This matter is before the Court on Defendant Todd Harwood’s Objections to United States Magistrate Judge Colin H. Lindsay’s Report and Recommendation. [R. 109] For the reasons laid out below, the Court will adopt the Magistrate Judge’s Report and Recommendation and overrule Defendant’s objections.

         I. Background Facts

         Magistrate Judge Lindsay’s Report and Recommendation ably sets out the full factual background of this case. Briefly, the issue at hand centers around the cause of two bullet holes discovered by Kentucky State Police (“KSP”) in 2006 during an investigation led by Defendant Todd Harwood (“Harwood”), then a KSP detective, and the relevance of those bullet holes to Plaintiff Susan King’s (“King)” claims against Harwood.

         Defendant Harwood was investigating Plaintiff King for the murder of Kyle Breeden. Breeden was found dead in the Kentucky River on November 5, 1998. [R. 109 p. 1] He died from two non-exiting .22 caliber magnum gunshot wounds to the head. [Id.] During the initial 1999 investigation KSP attempted, but was unable, to get a search warrant for King’s home based on information that there were bullet holes in her floor. [R. 1 p 7; R. 79 p. 2; R. 109 pp. 1–2] A few weeks later, King allowed Sergeant Carey Duncan to see her floor, at which time Duncan observed two bullet holes. [R. 109 p. 2] King explained to Duncan that she had fired them to scare away another individual who had been making sexual advances at her. [Id.] Sergeant Duncan stated in his deposition that he did not remember if he saw any bullet holes other than the two he was shown, but hoped that he would have included such an important finding in his report. [Id.] However, Sergeant Duncan also testified that there may have been a rug on the floor at the time, and he did not conduct a full search of the floor since he was there by King’s invitation, and she did not let him get on his hands and knees to look at the entirety of the floor. [Id. pp. 2–3]

         Seven years later, in May of 2006, Detective Harwood was assigned the now-cold case. [Id. p. 3] After Harwood obtained search warrants for King’s home (more on this later), KSP discovered there were in fact four bullet holes in King’s floor, not just the two Sergeant Duncan had seen in 1999. [Id.] KSP recovered a .22 caliber bullet from the floor, but it did not match bullets found in Breeden’s head. [Id.] The bullet in Breeden’s skull was a .22 caliber magnum bullet with a copper jacket, while the bullet found in King’s kitchen floor was a .22 caliber bullet with a copper wash. [Id.] One of the bullet holes tested positive for male DNA. [Id.] The KSP forensic lab also conducted a presumptive blood test which tested positive, although it could not be matched to Breeden. [Id.] However, it is unknown whether the bullet hole from which blood and DNA was recovered was from one of the two bullet holes that Sergeant Duncan saw in 1999. [Id.]

         In 2007, King was indicted for murdering Breeden and tampering with physical evidence. [Id.] After entering an Alford plea to manslaughter and tampering with physical evidence, King was incarcerated until she was ultimately exonerated in 2014, when new evidence showed that another person had confessed to Breeden’s murder. [R. 1 p. 19; R. 109 p. 4]

         King filed a Verified Complaint against numerous defendants, including Harwood, under 42 U.S.C. § 1983 and other state law causes of action. [R. 109 p. 4] The district court granted a hybrid motion to dismiss/motion for summary judgment, which was partially reversed by the Sixth Circuit. King’s remaining claims are those against Harwood for malicious prosecution under § 1983, and her state law claims against Harwood for intentional, reckless, or negligent infliction of emotional distress, civil conspiracy, and negligence/gross negligence/recklessness. See King v. Harwood, 852 F.3d 568, 591–92 (6th Cir. 2017). King has proceeded on those claims. [R. 109 p. 4]

         On May 30, 2018, the parties sat for King’s deposition. [Id.] The questions turned to the two additional bullet holes KSP discovered in King’s floor during Harwood’s 2006 investigation. [Id.] Harwood’s counsel asked King, “[h]ow did the bullet holes that were discovered in the later investigation get there?” [Id.] King refused to answer, stating it “had nothing to do with this case, ” and her counsel objected based on relevance. [Id. pp. 4–5] The parties discussed the matter at length, but agreed to continue the deposition without King answering the question. [Id. p. 5]

         The parties then had a telephonic status conference with Magistrate Judge Lindsay to discuss the dispute. [Id.] The Magistrate Judge gave what he describes as “preliminary guidance” that he believed the cause was relevant but did not foreclose King from filing for a protective order. [Id.] After discussing the matter with counsel, King decided not to file a motion. Instead, the parties filed a joint status report on October 26, 2018, agreeing that King would sit for a second deposition [Id.] On November 21, 2018, however, the day before King’s scheduled deposition, plans changed. [Id.] King’s counsel contacted Harwood’s counsel stating that King would assert her Fifth Amendment privilege during the deposition in response to questions about the cause of the two additional bullet holes first discovered in 2006. [Id.] King’s counsel indicated that King had planned on sitting for the deposition until that day, when counsel “learned additional facts that were not previously known, which changed his determination.” [Id. p. 6] Harwood choose to have the deposition anyway, and King asserted her Fifth Amendment privilege in response to questions about the cause of the two additional bullet holes. [Id.] In a second telephonic status conference with Magistrate Judge Lindsay, Defendant Harwood sought, and was granted, leave to file the instant motion.

         II. Standard of Review

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the Magistrate Judge’s Report and Recommendation or else waive his rights to appeal. Non-dispositive matters are reviewed under a “limited” standard of review: the district court “must . . . modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993); Fed.R.Civ.P. 72(a). Dispositive matters, however, are reviewed de novo if properly objected to. Fed.R.Civ.P. 72(b)(3). In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997)). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the magistrate’s efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

         Defendant Harwood made a timely objection to the Report and Recommendation [R. 111] For several reasons, the Court will review the Report and Recommendation applying a de novo standard of review. Harwood titled the instant motion as a “motion to dismiss, ” but the motion sought dismissal as a Rule 37(b) sanction for King’s refusal to produce discovery on the source of the two bullet holes in question. [R. 76] This Court referred the matter to Magistrate Judge Lindsay for a Report and Recommendation. [R. 83] The Magistrate Judge recommended denying Harwood’s request to dismiss the case as a discovery sanction pursuant to Rule 37(b). [R. 111] Magistrate Judge Lindsay also elected to treat Defendant’s Motion to Dismiss as a motion to compel, given the parties’ extensive briefing on whether or not King should have to answer the disputed questions. [R. 109 p. 9] He then found that the information Harwood sought through discovery was irrelevant to the claims and defenses of this action, meaning that Harwood did not meet the standard to show sanctions were warranted under Rule 37 in the Fifth Amendment context, and the Court therefore did not need to consider alternative sanctions. [Id. p. 14] Harwood now objects to Magistrate Judge Lindsay’s recommendation that his Motion to Dismiss be denied [R. 111 pp. 1; 6], and since Magistrate Judge Lindsay treated his Motion to Dismiss as a motion to compel under Rule 37, he objects to the denial of that motion as well. [R. 111 p. 1–2]

         The focus of Harwood’s objection is really that the Magistrate Judge erred in finding that the information he sought, the cause of two bullet holes in King’s floor, was irrelevant. [R. 111 pp. 1–2] Typically, a Magistrate Judge’s order denying discovery would be a non-dispositive order warranting a deferential review under the “clearly erroneous or contrary to law” standard. Fed.R.Civ.P. 72(a). However, Harwood’s motion sought disposition of the case, albeit as a discovery sanction. Further, despite barely developing the argument in his objection, Harwood “maintains” both that the sanctions were indeed appropriate, and that the case should still be dismissed. [Id. p. 1 n.1; 6] Thus, in an abundance of caution, the Court referred the matter for a Report and Recommendation, and has conducted a de novo review of those matters that are the subject of specific written objection. In any event, the standard of review does not make a difference in this case: having conducted a de novo review of the Magistrate Judge’s Report and Recommendation and Defendant’s ...

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