# CAPPS v. DIXON

> District Court, D. New Jersey · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10272791

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[D.I. 108 in 19-12002]
[D.I. 92 in 20-1118]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

AUDRA CAPPS and DOUGLAS ROBERT Civil No. 19-12002 (RMB/AMD)
GIBSON, JR.,

Plaintiffs,

v.

JOSEPH DIXON, et al.,

Defendants.
______________________________

TANIKA JOYCE, Civil No. 20-1118 (RMB/AMD)

Plaintiff,

v. MEMORANDUM OPINION AND ORDER

JOSEPH DIXON, et al.,

Defendants.

APPEARANCES:

Louis Charles Shapiro, Esq.
Louis Charles Shapiro, P.A.
1063 East Landis Avenue
Vineland, NJ 08362
Counsel for Plaintiffs

Thomas B. Reynolds, Esq.
Reynolds & Horn, P.C.
116 South Raleigh Avenue
Apartment 9B
Atlantic City, NJ 08401
Counsel for Defendant Dixon
A. Michael Barker, Esq.
Barker, Gelfand & James, P.C.
210 New Road
Suite 12
Linwood, NJ 08221
Counsel for Defendants Orndorf, Farabella, and City of
Millville

DONIO, Magistrate Judge:

This matter comes before the Court by way of motion [D.I.
108] of Plaintiffs Audra Capps and Douglas Robert Gibson, Jr. in
Civil Action No. 19-12002, and by way of identical motion [D.I.
92] of Plaintiff Tanika Joyce in Civil Action No. 20-1118, to
compel the production of fitness for duty reports of Defendants
Joseph Dixon and Bryan Orndorf in unredacted form. The Court has
considered the submissions of the parties and decides this matter
pursuant to Federal Rule of Civil Procedure 78(b). For the reasons
that follow, Plaintiffs’ motions to compel are granted.
The Court sets forth herein only those facts relevant to
the pending motions. In these actions, Plaintiffs generally assert
claims pursuant to 28 U.S.C. § 1983 arising out of their arrests
by officers of the Millville Police Department. Plaintiffs in both
actions allege that Defendant Dixon, a Millville police officer,
used excessive force in the course of arresting Plaintiffs. Capps
v. Dixon, Nos. 19-12002, 20-1118, 2021 WL 2024998, at *4, 8 (D.N.J.
May 21, 2021), reconsideration denied by 2022 WL 123183, at *1
(D.N.J. Jan. 13, 2022). Plaintiffs in the Capps matter further
assert that Defendant Orndorf, also a Millville police officer,
used excessive force in the course of the arrest of Plaintiff Capps
and failed to intervene in Defendant Dixon’s use of force during
the arrest. Id. at *5.1 In addition, Plaintiffs in both cases
assert claims for supervisory liability against the Millville
Chief of Police, Jody Farabella, and allege that “the Millville
Police Department maintained a policy or custom of permitting

officers to use excessive force without consequence” and further
allege that Farabella “knew about Dixon’s history of use of force
complaints for years before Capps’s arrest” but “ultimately failed
to take sufficient corrective measures.” Id. at *6. Further,
Plaintiffs assert claims against the City of Millville pursuant to
Monell v. Dep’t of Social Services, 436 U.S. 658 (1978), based
upon the City’s alleged improper training and supervision of its
police officers. Id. at *2.
In the course of discovery, Plaintiffs requested fitness
for duty reports for Defendants Dixon and Orndorf. Defendants
produced redacted versions of the reports for the 2018 and 2015
evaluations of Defendants Dixon and Orndorf, respectively, but

1 The District Court dismissed Plaintiffs’ claim against Orndorf
for failure to intervene in the arrest of Plaintiff Capps but did
not dismiss Plaintiffs’ claim regarding Orndorf’s use of force
during the arrest. Capps, 2021 WL 2024998, at *5.
Plaintiffs contend that the reports must be produced in unredacted
form. (See Letter from Louis Charles Shapiro, Esq. (hereinafter,
“Pls.’ Letter Br.”) [D.I. 108-1 in Civil No. 19-12002, D.I. 92-1
in Civil No. 20-1118], Oct. 14, 2021, p. 4.)2 Plaintiffs
specifically note that the report concerning Defendant Dixon
stated that Dixon “‘was advised and understood that the contents
of this evaluation would be provided to the Chief of Police.’”
(Id. at p. 5)(quoting Certification of Louis Charles Shapiro, Esq.
(hereinafter, “Shapiro Cert.”), Oct. 14, 2021, Ex. F.)3 Similarly,

2 Plaintiffs note that the 2018 report for Defendant Dixon refers
to an August 2012 evaluation and that Defendants are allegedly
unable to locate the report of that prior evaluation. (Pls.’ Letter
Br. at pp. 1-2.) Plaintiffs state that they “reserve the right to
request a spoliation instruction at trial and to seek whatever
other additional relief may be available from the Court for the
absence of that critical document.” (Id. at p. 5.) In the
“Conclusion” section of their briefs, Plaintiffs “suggest that the
Court order the Defendants to make further and more strenuous
efforts to locate that missing Dixon 2012 fitness for duty
report[.]” (Id. at p. 10.) Plaintiffs, however, have not filed a
formal motion seeking relief with respect to the 2012 report.

3 In the briefs filed on the docket, Plaintiffs redacted quotations
from the fitness for duty reports, including the above-quoted
statement by the examiner that the officers understood that the
contents of the evaluations would be provided to the Chief of
Police. This statement by the examiner does not reveal any
sensitive or confidential information about the officers, and the
Court therefore finds no basis for redaction of this sentence in
Plaintiffs’ briefs. Furthermore, Plaintiffs’ motions did not
comply with Local Civil Rule 5.3(c), as only redacted briefs were
filed on the docket, unredacted briefs and the Shapiro
Certification and exhibits were not filed on the docket under
temporary seal, and a motion to seal was not filed. The parties are
directed to meet and confer to determine whether there is a basis
Plaintiffs note that the report concerning Defendant Orndorf
stated that Orndorf “‘was advised and understood that the contents
of [the] evaluation would be provided to the referent and the Chief
of Police.’” (Id. at p. 6)(quoting Shapiro Cert., Ex. H.)
Plaintiffs argue that because Defendants Dixon and Orndorf
participated in these psychological examinations with an
understanding that the evaluations would be disclosed to the Chief
of Police, they had no expectation of confidentiality in their

communications to the examiner and, therefore, the
psychotherapist-patient privilege does not shield the reports from
disclosure. (See id. at pp. 8-9.)
In opposition to the motion, Defendants Farabella,
Orndorf and Millville do not dispute generally the relevance of
the fitness for duty reports to the claims in these cases, but
they argue that only the examiner’s conclusions regarding each
officer’s fitness for duty, and not the reports in their entirety,
are relevant. (Letter from A. Michael Barker, Esq. (hereinafter,
“Defs.’ Opp. Br.”) [D.I. 109 in Civil No. 19-12002, D.I. 93 in
Civil No. 20-1118], Oct. 28, 2021, p. 2.) Defendants Farabella,
Orndorf and Millville assert in this regard that “[a]ll that is

to seal any of the papers submitted in connection with the instant
motions and shall comply with the procedure set forth in Local
Civil Rule 5.3(c) regarding filing such papers on the docket.
relevant is whether or not the psychologist declared the officers
‘fit for duty’” and that “[w]hen the standard for ‘Monell’ is
‘deliberate indifference,’ no Court would criticize a chief of
police for relying on the conclusions reached by a licensed
professional mental health provider.” (Id. at pp. 2-3.) These
defendants further argue that the remainder of each report is not
discoverable because the reports contain information protected by
the psychotherapist-patient privilege. (Id. at p. 3.) In support

of their position, Defendants Farabella, Orndorf and Millville
rely on the decision in Williams v. Miles, No. 18-12973, 2020 WL
3546808, at *1 (D.N.J. June 30, 2020), in which another court found
that fitness for duty reports were not discoverable. (Id.)
Defendants highlight the policy concerns discussed in Williams,
where the court concluded that production of fitness for duty
reports may disincentivize police officers from revealing
sensitive information to an examiner, whereas shielding such
reports from disclosure would encourage officers to speak freely
with an examiner and thereby benefit the community. (Id.) Finally,
Defendants Farabella, Orndorf and Millville acknowledge that “it
is clear the Officers’ understanding was that the sensitive

psychological report would be revealed” to the Chief of Police,
but they argue that “[s]imply because the report was provided to
the Millville Chief of Police does not mean any other person is
entitled to any and all personal issues related to the police
officer.” (Id. at p. 4.) Defendant Dixon joined in the position
taken by Defendants Farabella, Orndorf and Millville in opposition
to Plaintiffs’ motions. (Letter from Thomas B. Reynolds, Esq. [D.I.
112 in Civil Action No. 19-12002, D.I. 96 in Civil Action No. 20-
1118], Nov. 1, 2021, p. 1.)
Federal Rule of Civil Procedure 26 sets forth the
framework for the scope of discovery. “Parties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case[.]” FED.
R. CIV. P. 26(b)(1). However, Rule 26 imposes limitations on the
scope of discovery. A “party seeking to protect the confidentiality
of such information may argue . . . that the information is
protected by an evidentiary privilege. Any material covered by a
properly asserted privilege would necessarily be protected from
discovery[.]” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
“[T]he party resisting discovery has the burden of clarifying,
explaining and supporting its objections.” State Nat’l Ins. Co. v.
Cty. of Camden, No. 08-5128, 2011 WL 13079217, at *3 (D.N.J. Apr.
28, 2011) (internal quotations omitted).

The Court first addresses the relevance of the fitness
for duty reports. Defendants “agree such examinations are
potentially relevant to the ‘Monell’ claims against the City” to
show that the City required its officers to undergo a fitness for
duty examination as part of its hiring process and that the
officers were declared fit for duty by the examiner. (Defs.’ Opp.
Br. at p. 2.) As noted above, however, Defendants argue that the
only relevant section of each report is the examiner’s conclusion,
because the Chief of Police would have relied only on the
conclusion reached by the examiner and would not have “challenge[d]
the conclusions of a licensed mental health professional.” (Id. at

pp. 2, 4.) Defendants note that other police departments in New
Jersey receive only a “pass” or “fail” recommendation regarding an
officer’s fitness for duty, not the examiner’s entire report, which
Defendants argue “highlights just how irrelevant the details of
the reports are.” (Id. at p. 4.)
Under 42 U.S.C. § 1983, a municipality can be liable
“when the alleged constitutional transgression implements or
executes a policy, regulation or decision officially adopted by
the governing body or informally adopted by custom.” Beck v. City
of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)(citing Monell v.
New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). “‘Policy
is made when a ‘decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action’ issues an
official proclamation, policy, or edict.’” Id. (quoting Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). “A
course of conduct is considered to be a ‘custom’ when, though not
authorized by law, ‘such practices of state officials [are] so
permanent and well-settled’ as to virtually constitute law.” Id.
(quoting Andrews, 895 F.2d at 1480). “Claims that a supervisor
failed to train or supervise . . . are generally considered a
subcategory of policy or practice liability.” Martin v. City of
Reading, 118 F. Supp. 3d 751, 773 (E.D. Pa. 2015)(internal
quotations omitted); see also City of Canton v. Harris, 489 U.S.

378, 389 (1989)(“Only where a municipality’s failure to train its
employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a
shortcoming be properly thought of as a city ‘policy or custom’
that is actionable under § 1983.”).
Here, Plaintiffs have alleged that Chief Farabella “knew
about Dixon’s history of use of force complaints for years” prior
to Plaintiffs’ arrests, and that Farabella “ultimately failed to
take sufficient corrective measures[,]” which allegations the
District Court has found are sufficient to state a claim for
supervisory liability under § 1983. See Capps, 2021 WL 2024998, at
*6, 8. Similarly, the District Court has concluded that Plaintiffs
sufficiently stated Monell claims against the City of Millville in

light of Plaintiffs’ allegations that “Farabella either knew or
should have known that Dixon received use of force complaints at
a rate far higher than other officers in the department, and that
whatever measures he took to correct this issue [were]
insufficient.” Id. at *7, 8. Given the nature of these claims,
evidence concerning whether Chief Farabella knew or was advised of
the defendant officers’ propensity for violence when making
arrests is relevant discovery. Such evidence includes the
psychological evaluations of the defendant officers prior to the
arrests of Plaintiffs Capps and Joyce, which may show whether

Farabella was on notice of these officers’ alleged propensity for
violence. See, e.g., Ashford v. City of Milwaukee, 304 F.R.D. 547,
551 (E.D. Wis. 2015) (“Documents indicating that the City allowed
officers with certain psychological problems to remain on the
street are arguably relevant to the plaintiffs’ Monell claims and
are therefore within the scope of discovery.”); Siegfried v. City
of Easton, 146 F.R.D. 98, 99-100 (E.D. Pa. 1992) (psychological
records of defendant officer conducted when officer interviewed
for employment were “highly relevant and may provide compelling
evidence concerning the city’s knowledge of [the defendant
officer’s] propensity toward violence”). In addition, relevant
discovery also may include psychological records that post-date

the incident at issue because they may demonstrate a pattern by
the City of condoning excessive force by its officers. See Beck,
89 F.3d at 972 (where plaintiff argued that defendant officer
exhibited a pattern of violent and inappropriate behavior and
presented evidence of excessive use of force, including civilian
complaint of incident that occurred after plaintiff’s incident,
Third Circuit noted that such evidence “may have evidentiary value
for a jury’s consideration whether the City and policymakers had
a pattern of tacitly approving the use of excessive force”); see
also Groark v. Timek, 989 F. Supp. 2d 378, 397–98 (D.N.J.
2013)(“Subsequent incidents . . . may be relevant to show a

continuous pattern that supports a finding of an accepted custom
or policy.”). Furthermore, post-incident evidence may be relevant
insofar as it may contain specific admissions or information
concerning the circumstances surrounding the arrests. See Henry v.
Hess, No. 11-2707, 2012 WL 4856486, at *2 (S.D.N.Y. Oct. 12,
2012)(fitness for duty psychological records were discoverable
because they contained information conveyed by officer concerning
circumstances of alleged excessive force).
The Court finds that the fitness for duty reports at
issue here are relevant to the claims in these cases. The 2015
report for Defendant Orndorf, which pre-dated the 2018 arrest of
Plaintiff Capps by several years and was provided to the Chief of
Police, is relevant in the Capps matter to whether Chief Farabella

had notice of Orndorf’s propensity for violence. The 2018 report
for Defendant Dixon, which post-dated the 2018 arrests of
Plaintiffs Capps and Joyce, is relevant in both cases insofar as
it may demonstrate the City’s pattern of condoning excessive force
by Millville police officers. Furthermore, in light of the temporal
proximity of Dixon’s fitness for duty evaluation to the incidents
at issue here,4 the Court also finds the report relevant to
Plaintiffs’ claims because it may contain factual information and
admissions concerning the circumstances of Dixon’s arrests of
Plaintiffs.

Indeed, Defendants do not dispute generally the
relevance of either report to the claims in these cases; they seek
only to limit disclosure to the conclusions of the examiner rather
than the reports in their entirety. The Court rejects Defendants’
argument. Defendants admit that Chief Farabella received the
fitness for duty reports, which shed light not only on the
conclusions of the examiner regarding the officers’ fitness for
duty but also provided Farabella with the facts upon which the

4 The exact date of Dixon’s evaluation is unclear from the record.
The fitness for duty report is dated August 6, 2018 and states
that the evaluation of Dixon occurred on March 10, 2018. (Shapiro
Cert., Ex. F.) Defense counsel has asserted that the evaluation
occurred at some point after April 14, 2018, as set forth in a
letter dated October 1, 2021.(See Pls.’ Letter Br. at p. 4; Shapiro
Cert., Ex. E at p. 2.) In light of Defendants’ letter which asserts
that the evaluation occurred after April 14, 2018, and given that
the evaluation occurred prior to the issuance of the examiner’s
report on August 6, 2018, it is clear that the evaluation occurred
within a few months of the arrests of Plaintiff Capps in February
2018 and Plaintiff Joyce in March 2018.
examiner’s conclusions were based. As such, the reports in their
entirety were available to the Chief of Police to inform any
decision to allow Defendants Dixon and Orndorf to remain employed
as Millville police officers. The Court therefore concludes that
the reports in their entirety, and not just the examiner’s
conclusions, constitute relevant discovery.
The Court next addresses Defendants’ assertion that the
psychotherapist-patient privilege protects the requested material

from disclosure. Evidentiary privileges are governed by Federal
Rule of Evidence 501, which provides that “[t]he common law — as
interpreted by United States courts in the light of reason and
experience — governs a claim of privilege” unless otherwise
provided in “the United States Constitution; a federal statute; or
rules prescribed by the Supreme Court.” FED. R. EVID. 501. Rule 501
further provides that “in a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the rule
of decision.” Id. When a case involves both federal and state law
claims in the same action, federal privilege law applies to all
claims. Pearson, 211 F.3d at 66 (“[F]or the resolution of the
present discovery dispute, which concerns material relevant to

both federal and state claims, Rule 501 directs us to apply federal
privilege law.”). As Plaintiffs bring claims pursuant to both 42
U.S.C. § 1983 and state law in the instant cases, the Court will
apply federal privilege law in deciding the privilege issue.
The United States Supreme Court recognized the federal
psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S.
1, 15 (1996), holding that “confidential communications between a
licensed psychotherapist and her [or his] patients in the course
of diagnosis or treatment are protected from compelled disclosure
under Rule 501 of the Federal Rules of Evidence.” While

acknowledging the “fundamental maxim that the public . . . has a
right to” every person’s evidence, the Supreme Court in Jaffee
found that “significant public and private interests support[ed]
recognition of the privilege[.]” Id. at 9, 11 (internal quotations
omitted). Specifically, the Supreme Court stated that the
privilege serves the private interest of fostering effective
psychiatric treatment, noting:
Effective psychotherapy . . . depends upon an
atmosphere of confidence and trust in which
the patient is willing to make a frank and
complete disclosure of facts, emotions,
memories, and fears. Because of the sensitive
nature of the problems for which individuals
consult psychotherapists, disclosure of
confidential communications made during
counseling sessions may cause embarrassment or
disgrace. For this reason, the mere
possibility of disclosure may impede
development of the confidential relationship
necessary for successful treatment.
Id. at 10. The Supreme Court in Jaffee further found that the
privilege “serves the public interest by facilitating the
provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem” as “[t]he mental health
of our citizenry, no less than its physical health, is a public
good of transcendent importance.” Id. at 11.
Under Jaffee, “confidentiality is the foundation upon
which the psychotherapist-patient privilege rests.” Barrett v.
Vojtas, 182 F.R.D. 177, 179 (W.D. Pa. 1998). The privilege attaches

to communications between a therapist and patient in which a
patient has a “reasonable expectation” that the communications
will remain confidential. James v. Harris Cty., 237 F.R.D. 606,
611-12 (S.D. Tex. 2006). By contrast, the privilege does not attach
when a patient has no expectation of confidentiality in
communications to a therapist, because the purpose of the privilege
is to foster effective counseling and “[c]onfidentiality is the
foundation for effective counseling[.].” Barrett, 182 F.R.D. at
181. Accordingly, in considering whether the psychotherapist-
patient privilege applies to communications between a patient and
a therapist, courts generally consider as a “determinative factor”

whether the communication was made with a reasonable expectation
of confidentiality. James, 237 F.R.D. at 611-12.
This Court previously addressed the application of the
psychotherapist-patient privilege in Ward v. Barnes, No. 05-1850,
2007 WL 9782878, at *3 (D.N.J. Sept. 28, 2007), concluding that
the privilege does not apply when the party asserting the privilege
has no reasonable expectation of confidentiality regarding
counseling sessions he received. In Ward, the defendant sought to
quash subpoenas for records issued by the plaintiffs to the
defendant’s medical providers on the basis that such records were
protected by the psychotherapist-patient privilege. Ward, 2007 WL

9782878, at *1. The defendant argued that he had an expectation of
confidentiality with respect to records from a counseling session
or evaluation from one provider because the provider’s website
stated that the therapy program was confidential. Id. The
plaintiffs argued that the privilege did not apply because the
records “were generated to satisfy a specific requirement of [the
defendant’s] employer in order for [the defendant] to keep his
job.” Id. The plaintiffs further argued that the defendant had no
expectation of confidentiality in the records because the
defendant testified at his deposition that he believed the
information from the provider was communicated to his employer to

monitor his progress. Id. This Court in Ward noted that the
psychotherapist-patient privilege “does not protect psychological
records from disclosure . . . when there is no reasonable
expectation of confidentiality.” Id. at *2 (citing Siegfried, 146
F.R.D. at 101; Scott v. Edinburg, 101 F. Supp. 2d 1017, 1020, 1022-
23 (N.D. Ill. 2000)). The Court further concluded that the
defendant failed to demonstrate that the records were protected by
the psychotherapist-patient privilege in light of the defendant’s
testimony that he believed the provider communicated with his
employer about the defendant’s counseling, as such testimony
undermined the defendant’s argument that he had a reasonable

expectation of confidentiality regarding the counseling session.
Id. at *3.
The psychotherapist-patient privilege has been addressed
in the context of discovery of police fitness for duty reports,
and courts that have considered the application of the privilege
in this context have similarly concluded that where an officer has
an expectation of confidentiality in a psychological examination,
the privilege shields the psychological records from disclosure.
For example, in Caver v. City of Trenton, 192 F.R.D. 154 (D.N.J.
2000), the plaintiff police officers alleged that they received
disparate treatment on the basis of race and sought production of
fitness for duty psychological records of a defendant police

officer and four non-party officers, arguing that the
psychological records would demonstrate disparate treatment
received by plaintiffs and those other officers that were referred
for fitness for duty exams. Caver, 192 F.R.D. at 155-56. Noting
that the defendant officer “was told and reassured that the
psychological records and reports would be kept strictly
confidential, and would not be disclosed to the City of Trenton
personnel[,]” the court in Caver found that the defendant “clearly
had an expectation of confidentiality” and concluded that the
defendant’s psychological records were protected by the
psychotherapist-patient privilege. Id. at 162; see also Barrios-
Barrios v. Clipps, No. 10-837, 2011 WL 4550205, at *3 (E.D. La.

Sept. 29, 2011) (finding that defendant police officer’s
psychological report was protected from disclosure by the
psychotherapist-patient privilege because “the evidence
establishe[d] that the one-page psychologist’s report . . . was
intended to be confidential and was actually maintained as
confidential by the Civil Service Department, with none of the
information contained in it having been disclosed to the Police
Department or to [the defendant] himself” and the defendant “had
a reasonable expectation of confidentiality in the report”); Green
v. Taylor, No. 03-1804, 2005 WL 8167545, at *2 (N.D. Ohio May 4,
2005)(plaintiff was not entitled to discovery of psychological

evaluations, noting that “where a police officer undergoes a
psychological evaluation following a fatal shooting, the
psychotherapist-patient privilege is not waived if the only
information provided to the police is whether the officer passed
or failed the exam” and plaintiff “provided no evidence that
information from a psychological evaluation was shared with the
police department in a manner sufficient to waive the privilege”);
Williams v. District of Columbia, No. 96-0200, 1997 WL 224921, at
*2 (D.D.C. Apr. 25, 1997)(where it was represented that
psychiatrist reported back to police department, but did not
disclose any confidential communications and rather gave a “Yes or

No” recommendation regarding whether an officer should return to
active duty, psychiatric records of officer were private and were
protected by psychotherapist-patient privilege).
When an expectation of confidentiality is lacking,
however, courts have concluded that the psychotherapist-patient
privilege does not attach to fitness for duty reports. See, e.g.,
Ashford, 304 F.R.D. at 552 (where plaintiffs asserted claims based
upon alleged unlawful strip searches by Milwaukee police officers,
court found it “doubtful that there would be any confidential
communications between an officer and a psychologist or other
professional who tests or examines an officer for the purpose of
determining whether he is fit for duty[,]” noting that results of

test would likely be “shared with the City, and therefore the
officer will not expect his statements to the examiner to remain
confidential”); Barrett, 182 F.R.D. at 178, 181 (where police
officer alleged to have used excessive force was ordered by city
to attend counseling sessions with a psychiatrist and a
psychologist, court found that conversations and notes taken
during such counseling sessions were not protected by
psychotherapist-patient privilege because “[a] police officer who
is ordered to therapy, knowing that the therapist will report back
to his or her superior, would have no expectation that his or her
conversation was confidential”); Siegfried, 146 F.R.D. at 101 (in

excessive force case, court compelled disclosure of psychological
records of defendant police officer upon finding that the
psychological evaluation of the officer was not confidential,
noting that “when an applicant consults with this psychologist, he
understands that the psychologist will be reporting back to the
police department” and that “[c]onfidentiality between
psychologist and patient is not expected in this situation”).
In opposition to the present motion, Defendants rely on
Williams v. Miles, No. 18-12973, 2020 WL 3546808, at *1 (D.N.J.
June 30, 2020), an excessive force case in which a court found
that the psychological records of a defendant police officer were
protected from disclosure by the psychotherapist-patient
privilege. (See Defs.’ Opp. Br. at pp. 3-4.) Like the above-cited
cases, the lynchpin of the Williams court’s analysis was that the

officer had an expectation of confidentiality in a fitness for
duty exam. Although in Williams there was actual disclosure of the
officer’s psychological records to the police department, the
officer believed that the documents were to be kept confidential
and that disclosure of the report was limited to only a pass/fail
recommendation. Williams, 2020 WL 3546808, at *4. Thus, despite
disclosure to the police department, the court in Williams found
that the psychological records were protected by the
psychotherapist-patient privilege because the defendant officer
had a bona fide expectation of privacy based on the representation

that “his evaluation . . . would remain confidential and would not
be disclosed.” Id.
In the cases presently before the Court, unlike the case
in Williams, the defendant police officers did not have an
expectation of confidentiality with respect to their fitness for
duty evaluations. The examiner’s reports here expressly indicated
that the officers were “advised and understood” that the
evaluations would be provided to the Chief of Police. (See Pls.’
Letter Br. at pp. 5-6.) Indeed, Defendants acknowledge the
officers’ “understanding . . . that the sensitive psychological
report would be revealed” to the Chief. (Defs.’ Opp. Br. at p. 4.)

Accordingly, because the reports were not generated with an
expectation of confidentiality, the cases before the Court are
aligned with the cases that have concluded that the
psychotherapist-patient privilege does not attach to
communications between an officer and a therapist when the officer
had no reasonable expectation of confidentiality in such
communications.
Defendants argue, without citation to any authority,
that because the reports were disclosed only to the Chief of Police
and were not generally disseminated, there was no waiver of the
psychotherapist-patient privilege. (Defs.’ Opp. Br. at p. 4.)

However, the inquiry is not whether disclosure to the Chief of
Police effected a waiver of the privilege, because the privilege
did not attach to the communications in the first instance given
the officers’ knowledge that the reports would be disclosed. This
Court rejects any argument that the privilege should attach because
the officers believed that the content of their evaluations would
only be disclosed to the Chief of Police, as the purpose of the
privilege cannot be served in the absence of a complete
confidential relationship. Indeed, numerous courts have rejected
the same argument raised by Defendants here. See, e.g., Smith v.
City of Plano, No. 01-7111, 2002 WL 1483902, at *2 (N.D. Ill. July
9, 2002)(where officer argued that he did not waive privilege

because he believed information would only be shown to Chief of
Police, court noted that “it is the very fact that he knew the
information would be shown to the Chief that breaks the
privilege”); Barrett, 182 F.R.D. at 181 (“A police officer who is
ordered to therapy, knowing that the therapist will report back to
his or her superior, would have no expectation that his or her
conversation was confidential.”); Siegfried, 146 F.R.D. at 101
(when applicant understands that psychologist will be reporting
back to police department, “[c]onfidentiality between psychologist
and patient is not expected in this situation” and “[i]f a patient
makes a communication expecting it to be disclosed to a third party

who is not involved in the patient’s treatment, the psychologist-
patient privilege does not apply”)(citation omitted).
The Court also rejects Defendants’ argument that the
policy interests articulated in Williams support a finding of non-
disclosure of the fitness for duty reports in these cases. In
Williams, the court cited “significant public policy concerns”
that supported non-disclosure of the defendant officer’s
psychological records, including a “chilling effect on the
evaluative system of police officers who may be suffering from a
psychological condition” and the police department’s “strong
policy interest in maintaining the confidentiality of its
evaluative process, and permitting its officers the opportunity to

obtain unfettered assistance through free communication with
healthcare providers, who in turn ensure officers are fit for
duty.” Williams, 2020 WL 3546808, at *4. These policy concerns,
however, rested on the police department’s policy that the
communications between the police officer and the therapist were
provided in a confidential setting and that the police department
would only receive a “pass” or “fail” recommendation. See id. In
Williams, the court noted that its decision “should not be
construed as prohibitive to disclosure of records in every case”
and that “analyses relating to a confidential relationship must be
examined on a case-specific basis.” Id. at *5. Here, there was no

confidential relationship between the police officers and the
examiner given that the officers were “advised and understood”
that their conversations would be disclosed to the Chief of Police.
(See Pl.’s Letter Br. at pp. 5-6.) Defendants thus fail to
demonstrate that the policy concerns set forth in Williams support
non-disclosure of the psychological records under the
circumstances in the present cases.
Consequently, the Court finds that the psychotherapist-
patient privilege cannot shield from disclosure the defendant
police officers’ fitness for duty reports because these officers
did not have the requisite expectation of confidentiality in their
fitness for duty exams. In so ruling, the Court notes that fitness

for duty reports do not fit squarely under the rubric of
psychotherapist-patient privilege material. As the court in
Ashford explained, “because the tests are being performed for some
reason other than treatment of the officer, such as to determine
whether the officer is fit for duty, the tests are unlikely to
depend [on] an ‘atmosphere of trust and confidence’ in which the
officer ‘makes a frank and complete disclosure of facts, emotions,
memories, and fears’” and the officer may even “have an incentive
to lie in order to produce a favorable result[.]” Ashford, 304
F.R.D. at 552 (quoting Jaffee, 518 U.S. at 10). Another court
likewise concluded that requiring production of fitness for duty

reports does not “detract from the purposes underlying the
privilege as set forth in Jaffee” because such reports are
“categorically different from a psychological evaluation for
purposes of medical diagnosis and treatment.” Barmore v. City of
Rockford, No. 09-50236, 2012 WL 1660651, at *3 (N.D. Ill. May 11,
2012). The court in Barmore explained, “[i]n the latter, an officer
is a patient desiring to get well” whereas “[i]n the former, he is
an employee hoping to keep his job.” Id. “[T]he motivations and
expectations of the officer in providing information will vary
with the nature of the particular evaluation.” Id. Nonetheless,
the Court need not determine at this time whether fitness for duty
reports categorically do not qualify for protection by the

psychotherapist-patient privilege. Even assuming the
psychotherapist-privilege may attach to fitness for duty reports,
Defendants here have failed to demonstrate that the defendant
officers had an expectation of confidentiality in the evaluations
at issue. Accordingly, the Court shall grant Plaintiffs’ motions
to compel and require Defendants to produce the fitness for duty
reports of Defendants Dixon and Orndorf in unredacted form.
CONSEQUENTLY, for the reasons set forth above and for
good cause shown:
IT IS on this 24th day of March 2022,
ORDERED that Plaintiffs’ motions [D.I. 108 in Civil No.

19-12002, D.I. 92 in Civil No. 20-1118] to compel shall be, and
are hereby, GRANTED; and it is further
ORDERED that Defendants shall produce the fitness for
duty reports in unredacted format within ten (10) days of the date
of this Order; and it is further
ORDERED that the parties are directed to comply with
Local Civil Rule 5.3 concerning sealing of material submitted in
connection with Plaintiffs’ motions; and it is further
ORDERED that by April 19, 2022 Plaintiffs shall file on
the docket all papers submitted in connection with the instant
motions that have not already been filed on the docket, including
unredacted briefs and the Shapiro Certification and exhibits

thereto. Plaintiffs may file such documents under temporary seal,
provided that a motion to seal is filed with respect to any
temporarily sealed material in accordance with Local Civil Rule
5.3(c).
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE

cc: Hon. Renée Marie Bumb

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272791. Public record. Not legal advice.