Osagie v. Borough of State College

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SYLVESTER OSAGIE, Representative No. 4:20-CV-02024

of the Estate of Osaze Osagie,

Decedent, (Chief Judge Brann)

Plaintiff,

v.

BOROUGH OF STATE COLLEGE, et

al.,

Defendants.

MEMORANDUM OPINION

FEBRUARY 22, 2022

I. BACKGROUND1

In 2021, Sylvester Osagie (“Osagie”), as representative of the estate of Osaze

Osagie (“Osaze”), filed an amended civil complaint against Defendants raising

several federal and state law claims arising from the fatal shooting of Osaze by State

College Police Department (“SCPD”) Patrol Officer M. Jordan Pieniazek on March

20, 2019.2 Osagie raises claims of: excessive force, in violation of the Fourth and

Fourteenth Amendments (Count One); two counts of state created danger, under 42

U.S.C. § 1983 (Counts Two and Three); two counts of unlawful policies and

practices, under § 1983 (Counts Four and Five); a violation of Title II of the

1 For the purposes of this motion the Court takes as true the allegations contained in the amended

complaint.

Americans with Disabilities Act (Count Six); a violation of the Rehabilitation Act

of 1973 (Count Seven); assault (Count Eight); battery (Count Nine); wrongful death

(Count Ten); and a claim under the Pennsylvania Survival Statute (Count Eleven).3

Osagie alleges that Osaze—who was diagnosed with schizoaffective

disorder—had stopped taking his medication and was in the midst of a mental health

crisis on March 19, 2019, when Osagie called SCPD to help locate Osaze and

provide him with assistance.4 Osagie informed police of Osaze’s mental health

struggles and provided them with recent text messages that indicated Osaze wished

to die and “that there would be trouble with the police.”5 Osagie also completed a

petition and warrant for involuntary mental health evaluation and treatment,

pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act (“Section

302”).6 The Section 302 application clearly indicated that Osaze presented a danger

to himself, but did not indicate that he posed a danger to anyone else.7

SCPD was unsuccessful in locating Osaze that day and, on the morning of

March 20, 2019, SCPD Officer Keith Robb assumed responsibility for the

investigation and, in that capacity, he read the Section 302 warrant, which included

copies of Osaze’s troubling text messages.8 Robb did not, however, share any of the

3 Id.

4 Id. ¶¶ 1-3.

5 Id. ¶¶ 3, 5.

6 Id. ¶ 53.

7 Id. ¶ 54.

materials in the Section 302 application or warrant with any of the SCPD officers

who were actively searching for Osaze.9 In the early afternoon, SCPD learned that

Osaze was likely headed toward his apartment.10

Pieniazek was directed to respond to the situation, despite having no

knowledge regarding Osaze’s mental health history, possible risk of suicide, or any

information regarding the Section 302 petition; accordingly, Pieniazek treated the

call as a routine matter.11 Pieniazek was the first to arrive at Osaze’s apartment,

followed by Robb and SCPD Officer Christopher Hill—two officers who had some

awareness of Osaze’s mental health crisis (collectively “the Officers”).12 Pieniazek

was placed in charge of the situation.13

The Officers made no plans for how to approach Osaze, nor did they choose

to approach Osaze in a manner best suited for approaching an individual

experiencing a mental health crisis—openly, calmly, and without aggression or

surprise.14 To the contrary, the Officers “decided to take Osaze by surprise”15 by

hiding their police vehicles, failing to announce who they were when they knocked

on Osaze’s door, and covering the peephole on the door.16 The Officers also

9 Id. ¶ 59.

10 Id. ¶ 61.

11 Id. ¶ 62-63.

12 Id. ¶ 68.

13 Id. ¶¶ 68-69.

14 Id. ¶¶ 70-72.

15 Id. ¶ 73.

deployed a tactic known as “contact and cover,” wherein one officer—Pieniazek—

approached Osaze’s apartment while the other officers “provide a force presence

nearby to send a message to the suspect that they are willing and able to protect the

contact officer, including with deadly force if necessary.”17

The Officers approached Osaze’s apartment through a small hallway that

provided no means of retreat and was too small to meaningfully deescalate any

situation that arose.18 After Pieniazek knocked on Osaze’s door, Osaze answered but

refused to allow the Officers inside and refused to come outside of his apartment;

Robb and Hill described this initial contact as normal and non-confrontational.19 The

Officers failed to deescalate the situation, however, and when Pieniazek allegedly

saw that Osaze was holding a steak knife, he immediately drew his firearm and

ordered Osaze to drop the knife, while Hill unholstered his taser.20

Osaze “backed into the apartment, saying he wanted to die and that the

officers should kill him” before eventually exiting the apartment with his knife and

approaching the Officers.21 When Osaze was approximately three feet from the

Officers, Hill deployed his taser at Osaze but, nearly simultaneous to that, Pieniazek

discharged his firearm, shooting Osaze three times in the back of his body.22 Osaze

17 Id. ¶ 75.

18 Id. ¶ 76.

19 Id. ¶¶ 79-83.

20 Id. ¶¶ 84-88.

21 Id. ¶¶ 89-90.

died from his wounds.23 A Conduct and Procedures Review Board—composed of

SCPD members—later concluded that the shooting was within SCPD policy.24

Osagie alleges that the fatal shooting of Osaze arose due to SCPD’s policies

and training, along with Pieniazek’s particular lack of suitability to deal with an

individual who is experiencing a mental health crisis. First, Osagie avers that

Pieniazek was “mentally unstable and violent” and “unfit for duty.”25 Specifically,

Pieniazek allegedly struggled with alcohol abuse and engaged in acts of domestic

violence, including one incident in 2018 where he “used a pistol in a threatening

manner while committing acts of domestic violence.”26 SCPD was allegedly notified

of these issues in January 2019, but SCPD Captain Chris Fishel failed to treat the

matter as a formal complaint and instead permitted Pieniazek to check himself into

a rehabilitation facility.27

Fishel received unspecified “troubling information” regarding Pieniazek’s

mental state while in rehab but, in mid-March 2019, Pieniazek left rehab.28 Although

SCPD active-duty officers must be fit for duty, “no one from the SCPD ensured that

Defendant Pieniazek had completed his rehab or took any steps to ensure that it was

safe for him to return to work” before permitting him to return to work on March 18,

23 Id. ¶ 26.

24 Id. ¶¶ 96-97.

25 Id. ¶¶ 12-13.

26 Id. ¶¶ 98-99.

27 Id. ¶ 101.

2019.29 Pieniazek allegedly began drinking heavily and exhibiting concerning

behavior the night before he returned to duty and, three days after returning to duty,

Pieniazek shot and killed Osaze.30 Osagie alleges that SCPD knew that Pieniazek

was in a “vulnerable mental state” that caused “him to be overly sensitive to

subjectively perceived danger” and likely to overreact to perceived threats.31

Osagie further avers that SCPD maintained constitutionally inadequate

policies and practices for encounters with individuals experiencing a mental health

crisis. The Borough of State College (“Borough”) requires all SCPD officers to

undergo Crisis Intervention Training (“CIT”) so that the officers may respond

appropriately to individuals who are suffering from mental health crises.32 However,

the Borough’s implementation of its CIT training was “inept” and created a

“heightened risk” that individuals suffering from a mental health crisis would be

harmed by SCPD officers.33

In that vein, a core tenet of any well-implemented CIT program “is that CIT

training and certification should be limited to a subset of officers within a department

who self-select and volunteer to receive CIT training, and that those officers assume

responsibility for responding to mental health crisis situations.”34 Police departments

29 Id. ¶¶ 104, 106.

30 Id. ¶¶ 105, 107.

31 Id. ¶¶ 113-15.

32 Id. ¶ 116.

33 Id. ¶ 119; see id. ¶¶ 126-28.

should not require that all officers undergo CIT training, as many officers simply are

not suited for such training or for responding to mental health crises.35 “CIT is based

on the idea that experienced officers who volunteer are best at responding to mental

illness calls.”36 Osagie asserts that Pieniazek, given his alleged history of alcohol

abuse, spousal abuse, and erratic behavior, was poorly suited to CIT training or to

be a crisis response team member.37

Furthermore, SCPD’s CIT program did not require that officers analyze all

available intelligence before responding to mental health crises, nor did it require

that emergency dispatchers ask appropriate questions or provide critical information

to assist the responding officer, as it standard in effective CIT programs.38 Due to

these deficiencies, Pieniazek was never informed of Osaze’s suicidal text messages,

mental health issues, or any of the circumstances surrounding the Section 302

warrant.39 Osagie alleges that, had the Borough implemented a proper CIT training

program, Osaze’s death would not have occurred.40

Defendants answered the amended complaint by largely denying the

allegations, and the parties commenced discovery.41 Currently pending before the

35 Id. ¶¶ 120, 123.

36 Id. ¶ 124.

37 Id. ¶¶ 121-22.

38 Id. ¶¶ 129-31.

39 Id. ¶ 132.

40 Id. ¶¶ 135-40.

Court is Osagie’s motion to compel discovery related to certain information that

Defendants have refused to disclose.42

Osagie “sought discovery related to Defendant Pieniazek’s alcohol abuse and

domestic violence history, what treatment he received, what the SCPD knew about

these issues, when they knew it, and who within the Department knew.”43

Defendants refused to provide the requested discovery on the grounds that such

information is irrelevant, overly broad, not reasonably tailored to lead to the

discovery of admissible evidence, or is protected by spousal privilege or therapist-

patient privilege.44 Osagie argues that the discovery he seeks is relevant and would

lead to admissible evidence, as it is geared toward gathering evidence of Pieniazek’s

fitness for duty, which is the foundation of several of Osagie’s claims.45 Osagie

further contends that Pieniazek has waived any privilege and the Borough cannot

invoke said privileges.46 Finally, he asserts that information related to Fishel’s

retirement is relevant to his claims.47

Defendants respond that the requested discovery need not be turned over for

several reasons.48 First, they argue that the question of whether Pieniazek’s actions

were reasonable is governed by an objective standard and, accordingly, any

42 Doc. 44.

43 Doc. 46 at 10.

44 Id.

45 Id. at 12-16.

46 Id. at 16-20.

47 Id. at 20-21.

information related to alleged episodes of domestic violence, alcohol abuse, or

substance abuse treatment are irrelevant and would not lead to the discovery of

admissible evidence.49 Second, Defendants contend that providing information

related to Pieniazek’s voluntary substance abuse treatment may discourage other

officers from voluntarily seeking such treatment; such information should therefore,

as a matter of public policy, be protected from disclosure.50

Third, Defendants contest the assertion that they placed Pieniazek’s mental

state at issue, thereby waiving therapist-patient privilege.51 Fourth, Defendants argue

that Pieniazek may assert spousal privilege or therapist-patient privilege for any

communications between himself and his wife, or himself and his therapist.52

Finally, Defendants argue that Osagie is not entitled to any documents related to

Fishel’s retirement, as his retirement is not relevant to Osaze’s death or Pieniazek’s

supervision, and is not calculated to lead to the discovery of admissible evidence.53

Osagie has not filed a reply brief and the time to do so has passed, rendering

this motion ripe for disposition. For the following reasons, Osagie’s motion to

compel discovery will be granted in part and denied in part.

49 Id. at 5-7.

50 Id. at 7-8.

51 Id. at 9.

52 Id. at 9-11.

II. DISCUSSION

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties 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.” Such discovery must take into

account “the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the issues, and whether the

burden or expense of the proposed discovery outweighs its likely benefit.”54 Where

a party receives what he deems to be “evasive or incomplete” answers, he may file

a motion to compel with the district court.55

When such a motion is filed, “[t]he moving party must demonstrate the

relevance of the information sought to a particular claim or defense. The burden then

shifts to the opposing party, who must demonstrate in specific terms why a discovery

request does not fall within the broad scope of discovery or is otherwise privileged

or improper.”56 “Generally, courts afford considerable latitude in discovery in order

to ensure that litigation proceeds with ‘the fullest possible knowledge of the issues

and facts before trial.’”57 As such, the United States Court of Appeals for the Third

54 Fed. R. Civ. P. 26(b)(1).

55 Fed. R. Civ. P. 37(a)(1), (4).

56 Miller v. McGinley, No. 1:20-CV-2270, 2022 WL 212709, at *2 (M.D. Pa. Jan. 24, 2022)

(internal quotation marks omitted).

57 Naranjo v. T. Walter, No. 1:20-CV-918, 2021 WL 4226062, at *3 (M.D. Pa. Sept. 16, 2021)

Circuit generally will not overturn an order regarding discovery unless “there has

been an interference with a substantial right . . . or . . . the discovery ruling is seen

to be a gross abuse of discretion resulting in fundamental unfairness in the trial of

the case.”58

The Third Circuit has held that “all relevant material is discoverable unless an

applicable evidentiary privilege is asserted. The presumption that such matter is

discoverable, however, is defeasible.”59 Courts may therefore limit discovery that is

“unreasonably cumulative or duplicative,” that may “be obtained from some other

source that is more convenient, less burdensome, or less expensive,” if “the party

seeking discovery has had ample opportunity to obtain the information by discovery

in the action” or if “the proposed discovery is outside the scope permitted by Rule

26(b)(1).”60

“Discovery need not be perfect, but discovery must be fair.”61 “The responses

sought must comport with the traditional notions of relevancy and must not impose

an undue burden on the responding party.”62 “To determine the scope of discoverable

information under Rule 26(b)(1), the Court looks initially to the pleadings.”63 “In

ascertaining which materials are discoverable and which are not, a district court must

58 Marroquin–Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).

59 Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).

60 Fed. R. Civ. P. 26(b)(2)(C).

61 Westfield Ins. Co. v. Icon Legacy Custom Modular Homes, 321 F.R.D. 107, 111 (M.D. Pa.

2017) (internal quotation marks omitted).

62 Id. (internal quotation marks omitted).

further distinguish between requests that appear reasonably calculated to lead to the

discovery of admissible evidence, and demands that are overly broad and unduly

burdensome.”64

A. Relevance

First, the parties dispute the relevance of the sought-after materials, and

dispute whether the discovery requests are geared toward uncovering admissible

evidence. Defendants primarily contest the relevance of the discovery requests on

the ground that claims of excessive force are governed by an objective standard and,

accordingly, information related to Pieniazek’s state of mind is not relevant.65

Defendants are correct that, in examining claims of excessive force, “[t]he test

of reasonableness under the Fourth Amendment is whether, under the totality of the

circumstances, ‘the officers’ actions are objectively reasonable in light of the facts

and circumstances confronting them, without regard to their underlying intent or

motivations.’”66 As such, the Court agrees with Defendants that Pieniazek’s mental

state, history of substance abuse, or past incidents of domestic abuse are irrelevant

to a claim of excessive force.67

64 Id. (brackets, citations, and internal quotation marks omitted).

65 Doc. 49 at 5-7.

66 Est. of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (quoting Graham v. Connor, 490

U.S. 386, 397 (1989)).

67 See Graham, 490 U.S. at 397 (“An officer’s evil intentions will not make a Fourth Amendment

violation out of an objectively reasonable use of force; nor will an officer’s good intentions

make an objectively unreasonable use of force constitutional”); Escobar v. Montee, 895 F.3d

387, 394 (5th Cir. 2018) (“Because the test is objective, we disregard any contentions relating

to either party’s subjective mental state”); Flythe v. District of Columbia, 4 F. Supp. 3d 222,

This does not mean, however, that such evidence is irrelevant to this case, as

Osagie raises claims beyond excessive force that would require an examination of

Pieniazek’s mental state and history. Specifically, Osagie raises two claims of state

created danger, both of which allege that “the Borough and Defendant Fishel were

aware of Defendant Pieniazek’s mental instability, alcohol abuse, and propensity for

violence” and therefore could reasonably foresee that Pieniazek would respond with

violence in crisis situations.68

With regard to such claims, the Third Circuit has held that, although “the Due

Process Clause [of the United States Constitution] does not impose an affirmative

obligation on the state to protect its citizens . . . [t]he state-created danger theory

operates as an exception to that general rule.”69 To prevail on a state-created-danger-

claim, a plaintiff must

meet a four-part test: (1) the harm ultimately caused to the plaintiff was

foreseeable and fairly direct; (2) the state-actor acted in willful

disregard for the plaintiff’s safety; (3) there was some relationship

between the state and the plaintiff; and (4) the state-actor used his

authority to create an opportunity for danger that otherwise would not

have existed.70

Notably, at least three of these prongs rely to some extent on an examination

of Pieniazek’s alleged history. The first prong necessitates that the finder of fact

Officer Eagan’s use of methamphetamines or other drugs around the time of the shooting” was

irrelevant because “any evidence regarding Officer Eagan’s subjective judgment is not

probative on the issue of the objective reasonableness of his actions”).

68 Doc. 15 at 28-29.

69 Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (internal citation omitted).

eventually determine whether the harm to Osaze was reasonably foreseeable, which

requires an assessment of whether the information within Defendants’ possession

should have reasonably led them to believe that Pieniazek posed a risk to the public.

This necessarily includes an assessment of whether Defendants’ history, expertise,

or common sense “equipped them with concrete information about the risk” that was

allegedly created when they authorized Pieniazek to return to active duty.71 In other

words, Osagie must demonstrate “an awareness on the part of the state actors that

rises to [the] level of actual knowledge or an awareness of risk that is sufficiently

concrete to put the actors on notice of the harm.”72

The second prong, whether “the state-actor acted in willful disregard for the

plaintiff’s safety,”73 likewise calls for an examination of Pieniazek’s mental state

and history. The fact finder must ultimately determine whether the Borough and

Fishel’s failure to act differently after considering information regarding Pieniazek’s

history and mental state amounted to “deliberate[] indifferen[ce], establishing a level

of culpability that was conscience-shocking.”74 Finally, the fourth prong also

necessitates an examination of Pieniazek’s history, as such history is necessary to

determine whether the Borough and Fishel’s alleged decision to permit Pieniazek to

71 Phillips, 515 F.3d at 237-38.

72 Id. at 238.

73 Id. at 235.

return to duty “create[d] an opportunity for danger that otherwise would not have

existed.”75

Information related to Pieniazek’s mental state and history of alcohol abuse

or spousal abuse is therefore relevant here, although such evidence is relevant only

to establish that the Borough and Fishel knew of Pieniazek’s mental state and fitness

for duty.76 With this caveat in mind, the Court simply cannot say that the requested

information regarding Pieniazek is not geared toward obtaining admissible evidence

in this matter. Consequently, the Court concludes that the requested discovery

related to Pieniazek is both relevant and reasonably geared toward uncovering

admissible evidence.

Defendants nevertheless argue that they should not be required to turn over

the requested discovery on policy grounds. Specifically, Defendants believe that,

should they be required to turn over information related to Pieniazek’s voluntary

therapy or substance abuse treatment, other police officers will be discouraged from

similarly seeking voluntary help.77

The Court is not unsympathetic to Defendants’ concerns, and to the potential

consequences that may arise from discovery of materials related to voluntary mental

75 Id. at 235.

76 Some—perhaps much—of this evidence may well not be admissible at trial, but such evidence

remains discoverable.

health or substance abuse treatment by police officers.78 Nevertheless, the Federal

Rules of Civil Procedure are clear as to the contours of discovery, and as to what

information falls outside of those Rules, and in this case such information is

discoverable. The Court is mindful of the admonishment that “courts ‘do not sit as

councils of revision, empowered to rewrite legislation in accord with their own

conceptions of prudent public policy.’”79 The duty to provide exceptions to the

discovery rules based on considerations of public policy falls to the legislative

branch of this Government, not the judicial branch.

To that end, as Defendants note, Congress recently enacted the Confidentiality

Opportunities for Peer Support Counseling Act—effective November 18, 2021—

that provides for confidential peer support counseling services for federal law

enforcement officers.80 However, as Defendants acknowledge, that law was in not

effect at the time that Pieniazek allegedly sought treatment.81 Moreover, that law

applies only to federal law enforcement officers,82 and there is no evidence that

78 Osagie disputes the contention that Pieniazek voluntarily sought treatment, rather than being

forced to seek treatment to keep his job. Doc. 46 at 15. Because the Court concludes that the

information Osagie seeks is discoverable regardless of the policy concerns raised by

Defendants, there is no need to resolve the question of whether Pieniazek’s treatment was truly

voluntary.

79 Pellegrino v. U.S. Transp. Sec. Admin., Div. of Dep’t of Homeland Sec., 937 F.3d 164, 200 (3d

Cir. 2019) (Krause, J., dissenting) (quoting United States v. Rutherford, 442 U.S. 544, 555

(1979)).

80 See 34 U.S.C. § 50901.

81 Doc. 49 at 7-8.

Pieniazek, as an SCPD officer, qualifies as a federal law enforcement officer.83 Nor

would it appear that the treatment Pieniazek obtained would qualify as a peer support

counseling program.84

Thus, Congress has taken steps to permit confidential mental health treatment

that would be shielded—to some extent—from the rules of discovery. This

legislation does not, however, apply here, nor has the Pennsylvania General

Assembly enacted similar measures that may apply to Pieniazek. In the absence of

such action, the Court concludes that the information Osagie seeks remains

discoverable, notwithstanding any public policy considerations that may militate in

favor of maintaining confidentiality as to at least some of those records.85

Finally, the Court finds that—notwithstanding Osagie’s arguments to the

contrary—any evidence related to Fishel’s retirement is not relevant to this case.

Osagie asserts that Fishel was involved in the decision to permit Pieniazek to return

to duty, participated in the committee review of Pieniazek’s conduct, and personally

wrote the report reviewing Pieniazek’s conduct that day.86 This may make relevant

83 See 18 U.S.C. § 115(c)(1) (defining federal law enforcement officer as “any officer, agent, or

employee of the United States authorized by law or by a Government agency to engage in or

supervise the prevention, detection, investigation, or prosecution of any violation of Federal

criminal law”); 34 U.S.C. § 50901(a)(2) (referencing 18 U.S.C. § 115(c)(1) for definition of

federal law enforcement officer).

84 See 34 U.S.C. § 50901(a)(4) (“The term ‘peer support counseling program’ means a program

provided by a law enforcement agency that provides counseling services from a peer support

specialist to a law enforcement officer of the agency”).

85 However, as discussed below, some of the records may be shielded by client-therapist

confidentiality.

any information related to Fishel’s knowledge of Pieniazek’s conduct and history

prior to the shooting, and perhaps raises questions as to Fishel’s conduct in the

investigation of the fatal shooting of Osaze. However, there is no information—or

even allegation—that would connect Fishel’s retirement to the shooting or its

investigation. Absent such a connection, Fishel’s retirement remains entirely

disconnected from the decision to permit Pieniazek to return to duty or the

subsequent investigation of Pieniazek’s conduct on March 20, 2019. Because this

information is not “relevant to any party’s claim,” it is not discoverable,87 and

Osagie’s motion to compel will be denied as to this requested evidence.

B. Privilege

Finally, Defendants claim that much of the requested discovery is protected

by spousal privilege and therapist-patient privilege. As to spousal privilege, it is well

established that an individual may not be compelled to divulge communications

between himself and his spouse, although his spouse may choose to divulge such

communications in certain circumstances.88 It is equally well established, however,

87 Fed. R. Civ. P. 26(b)(1).

88 See Trammel v. United States, 445 U.S. 40, 43-53 (1980) (discussing history of spousal

privilege and concluding that “that the witness-spouse alone has a privilege to refuse to testify

adversely; the witness may be neither compelled to testify nor foreclosed from testifying”);

United States v. Breton, 740 F.3d 1, 9-10 (1st Cir. 2014) (“The common law recognizes two

related but distinct marital privileges: (1) the spousal testimony privilege, which allows one

spouse to refuse to testify adversely against the other in criminal or related proceedings; and

(2) the marital communications privilege, which permits a defendant to refuse to testify, and

allows a defendant to bar his spouse or former spouse from testifying, as to any confidential

that the privilege does not apply to testimony “concerning a spouse’s conduct,”89

“where a third party is present during a communication between spouses,”90 if the

communications are made with the “intention that the information conveyed be

transmitted to a third person,”91 or if an otherwise privileged communication is

“voluntar[ily] disclos[ed] by [the individual invoking the privilege] to a third

person.”92 Similarly, with regard to mental health treatment, “confidential

communications between a licensed psychotherapist and her patients in the course

of diagnosis or treatment are protected from compelled disclosure,”93 although

therapist-patient “privilege is waived when records are submitted to a third party.”94

Here, the parties do not appear to genuinely dispute the contours of these

privilege doctrines, and it is beyond peradventure that Pieniazek may invoke

privilege for any confidential communications between he and his former wife that

were made during their marriage, or between he and his therapist. However,

Pieniazek would have waived confidentiality to the extent that he has voluntarily

shared those communications with any third party—including State College

89 United States v. Hill, 967 F.2d 902, 912 n.13 (3d Cir. 1992).

90 Id.

91 Pereira v. United States, 347 U.S. 1, 6 (1954).

92 Wolfle v. United States, 291 U.S. 7, 14 (1934). See also United States v. Burks, 470 F.2d 432,

436 (D.C. Cir. 1972) (“a communication otherwise privileged loses its privileged character on

coming into the hands of a third party”).

93 Jaffee v. Redmond, 518 U.S. 1, 15 (1996).

94 Smart v. Cal. Highway Patrol, No. 217CV01075TLNJDP, 2021 WL 1549698, at *2 (E.D. Cal.

Apr. 20, 2021). See United States v. Murra, 879 F.3d 669, 681 (5th Cir. 2018) (privilege may

be waived if “any portion of those confidential communications was revealed . . . to any third

Borough. Thus, the Borough may not invoke the privilege as to any information

within its control that Pieniazek voluntarily shared with it.95 Nor may Pieniazek

invoke the privilege for any communications that he himself revealed to a third party.

Despite the existence of this privilege, Osagie contends that Pieniazek has

waived any claim of therapist-patient privilege by putting his mental health at issue

when he responded to allegations that he “was not fit for duty,” and asserting that a

treating professional assured Pieniazek and the Borough that Pieniazek was fit for

duty.96 Defendants argue that Pieniazek did not place his mental health at issue by

simply responding to the allegations put forth in Osagie’s amended complaint.97

Numerous courts have concluded that an individual may waive therapist-

patient confidentiality by placing their mental health at issue in a case, under the

theory that “allowing a plaintiff to hide behind a claim of privilege when that

condition is placed directly at issue in a case would simply be contrary to the most

basic sense of fairness and justice.”98 However, these courts appear to have

universally applied the waiver rule only in circumstances where a plaintiff has

95 Moreover, as Osagie correctly points out, the privileges are Pieniazek’s to assert, not the

Borough’s. Doc. 46 at 17.

96 Id. at 18-19.

97 Doc. 49 at 9.

98 Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997) (ellipsis and internal

affirmatively placed his or her mental health at issue in the case—typically by

bringing claims that involve their mental health.99

The Court has been unable to locate any cases where waiver has been found

when a defendant merely responds to allegations contained in a complaint. To the

contrary, at least one other court has determined that a defendant does not waive

therapist-patient privilege simply “by defending [a] § 1983 excessive force case

brought against him.”100 This Court agrees that a defendant does not waive privilege

simply by responding to allegations contained in a complaint; it would be

incongruous to conclude that a defendant waives therapist-patient privilege by

responding to factual allegations contained in a complaint, particularly since a failure

to so respond would result in those allegations being deemed admitted.101

99 See, e.g., id. at 131 (concluding “Plaintiff alleges that her mental condition necessitated anti-

depressant medication that made it difficult to wake up in the morning. Plaintiff may not now

claim that records reflecting her need for this medication and whether it had the side effects

she alleges to be privileged. These records are at issue in this litigation, thus Plaintiff must

authorize their release as well”); Katz v. Nat’l Bd. of Med. Examiners, No. 3:15-CV-01187,

2016 WL 2744823, at *4 (M.D. Pa. May 10, 2016) (holding that any “privilege that might have

existed has been waived by Katz’s placement of his physical and mental condition at issue in

this case” through the filing of Americans with Disabilities Act claim and intentional infliction

of emotional distress claim); Adams v. Ardcor, 196 F.R.D. 339, 344 (E.D. Wis. 2000) (finding

waiver where “plaintiff intends to the use the testimony of his treating psychotherapist to

advance his claims of emotional distress”); Topol v. Trustees of Univ. of Pa., 160 F.R.D. 476,

477 (E.D. Pa. 1995) (“Plaintiff has placed her mental state in issue by alleging that her sexual

relationship with Woodfield caused her to become ‘depressed, anxious, and fearful’ and by

seeking damages for mental and emotional suffering”); Premack v. J.C.J. Ogar, Inc., 148

F.R.D. 140, 145 (E.D. Pa. 1993) (finding “plaintiffs waived the privilege by putting their

mental condition directly at issue” by alleging that accident caused psychological problems

that forever impacted their quality of life).

100 Kelley v. O’Malley, No. 2:17-CV-01599-NBF, 2021 WL 1578179, at *4 (W.D. Pa. Apr. 22,

2021).

101 See Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating to the amount of

In an analogous situation, the Third Circuit has previously examined when a

litigant may impliedly waive attorney-client privilege.102 The Third Circuit noted

that authority supported “the proposition that a party can waive the attorney client

privilege by asserting claims or defenses that put his or her attorney’s advice in issue

in the litigation” by, for example, filing a malpractice claim against his attorney, or

by “asserting reliance on the advice of counsel as an affirmative defense.”103 In such

circumstances, “the client has made the decision and taken the affirmative step in

the litigation to place the advice of the attorney in issue . . . [and thereby] has opened

to examination facts relating to that advice.”104 The Third Circuit emphasized that:

Advice is not in issue merely because it is relevant, and does not

necessarily become in issue merely because the attorney’s advice might

affect the client’s state of mind in a relevant manner. The advice of

counsel is placed in issue where the client asserts a claim or defense,

and attempts to prove that claim or defense by disclosing or describing

an attorney client communication.105

The Court concludes that these are sound contours to apply to therapist-patient

privilege. Applying that rule to this case, here, Pieniazek has not asserted a claim or

defense simply by contesting that he had serious mental health issues that allegedly

should have prevented him from being an active-duty police officer. In so contesting

Osagie’s allegations, Pieniazek has not disclosed or described communications with

his therapist in an attempt to “assert[] a claim or defense . . . [or] to prove that claim

102 Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994).

103 Id. at 363.

104 Id.

or defense.”106 Importantly, the only claims levied against Pieniazek are claims of

excessive force and related state law claims, and his mental health is not relevant to

those claims. By responding to allegations of mental health issues, Pieniazek

therefore was not presenting a defense or trying to prove a defense. Accordingly,

Pieniazek has not waived therapist-patient privilege.107

III. CONCLUSION

For the foregoing reasons, the Court concludes that, while some of the

requested discovery may be protected by privilege or irrelevant, much of it is

discoverable. Consequently, Osagie’s motion to compel discovery will be granted in

part and denied in part.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

106 Id.

107 There is one limited point upon which Pieniazek may arguably have waived privilege. In

response to Osagie’s amended complaint, Defendants assert that “Pieniazek’s personal,

treating professional assured [] Pieniazek and the Borough that [] Pieniazek was fully fit to

perform his functions as an officer with no restrictions or limitations.” Doc. 33 ¶¶ 100-07. This

language does raise Pieniazek’s mental health treatment as a defense, since it counters any

notion that Defendants knew, or should have known, that Pieniazek was not fit to be an active-

duty police officer. This defense, however, would only be applicable to the Borough and

Fishel, and would be no defense in the allegations against Pieniazek. It is therefore not clear

that Pieniazek waived therapist-patient privilege in this answer, and the remaining defendants

may not waive a defense on Pieniazek’s behalf. The Court need not, however, address this

question. Since it is clear that Pieniazek’s treating professional communicated information to