The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JALEN BRADLEY, et al., :
: Case No. 2:24-cv-03118
Plaintiffs, :
: Judge Michael H. Watson
v. :
: Magistrate Judge Kimberly A. Jolson
CITY OF COLUMBUS, et al., :
:
Defendants. :
OPINION & ORDER
Before the Court are Plaintiffs’ two Motions to Compel (Docs. 246, 251) and Defendant’s
Motion for Leave to Take Depositions After the Close of Discovery (Doc. 280). For the following
reasons, Plaintiffs’ Motions are DENIED, and Defendants’ Motion (Doc. 280) is GRANTED.
I. BACKGROUND
The Court has summarized the allegations underlying this action. In particular,
On May 6, 2023, [Plaintiffs Jalen and Ja-Dawn Bradley] were walking along High
Street in the Short North neighborhood of Columbus, Ohio. [Doc. 148 ¶ 8]. While
they were walking down the street, a group of armed males began shooting at them,
causing injuries to both. Id. ¶ 9. Jalen was armed with a firearm, and he returned four
shots at the group of males before Plaintiffs ran. Id. As Plaintiffs were running for
cover from the shootout, Officer Harmon was also in the area that evening and
responded to the gunfire. Id. ¶ 10. Despite this lack of information, Officer Harmon
opened fire on Plaintiffs. Id. ¶ 10. Plaintiffs allege that Officer Harmon “fired his
weapon at [Plaintiffs] thirty (30) times or more, including reloading and shooting
eleven (11) more times at a crawling and subdued Jalen Bradley. . . . Officer Harmon
caused Plaintiffs serious injuries—namely, Jalen was hospitalized and paralyzed, and
Ja-Dawn was shot four times and hospitalized. Id. ¶ 16. Because Officer Harmon
continued to roll Jalen back and forth on the ground as he was handcuffed and
unconscious, Plaintiffs contend that he suffered additional injuries, pain, and
suffering. Id. ¶ 16. Plaintiffs allege that Jalen’s gunfire was in self-defense and, at
the time Officer Harmon was shooting at Plaintiffs, neither Plaintiff posed a threat.
Id. ¶¶ 19-20[.]
Following the May 2023 police shooting, the City recommended Officer Harmon for
a medal of valor, delayed its investigation into the incident, and ultimately found that
his conduct did not violate the City’s policies or procedures. Id. ¶¶ 44, 46.
Plaintiffs additionally contend that the City has ignored Officer Harmon’s history of
excessive force. Specifically, Plaintiffs allege that the City has “known for years that
[Officer] Harmon has a propensity for violence, overly aggressive behavior, and
acquiring a number of citizen complaints as well as the misuse of firearms.” Id. ¶ 62.
And the City “has failed to reprimand, punish, discipline, retrain, or dismiss Officer
Harmon.” id. Plaintiffs go on to allege a history of citizen complaints against Officer
Harmon, including (among other things) “[complaints for excessive force regarding
incidents that occurred on: August 6, 2016[, ] and September 17, 2018,” Id. ¶ 33(i);
“[o]ne complaint for discharge of a firearm regarding an incident that occurred on
March 18, 2016,” Id. ¶ 33(iv); and an investigation into an incident where a citizen
reported that Officer Harmon [“]entered her yard, pointed his gun at her dog, and
cursed at the complainant and her children.” Id. ¶ 34(iv).
(Doc. 268 at 1–2).
Early in this case, the Court issued a scheduling order, and the parties engaged in an
arduous discovery period that required many deadline extensions. During this period, the parties
exchanged several rounds of written discovery and conducted depositions, including Defendant
Harmon’s deposition on October 30, 2025. (Docs. 164, 282). Shortly before the close of
discovery, Plaintiffs filed two Motions to Compel, the first concerning a document request for a
psychological evaluation of Harmon and the second concerning one of Harmon’s deposition
answers. (Docs. 246, 251). Because issues raised in the motions implicated issues central to
Defendants’ motions to dismiss pending at the time, the Court held the discovery motions in
abeyance and stayed briefing. (Doc. 256).
In ruling on the motions to dismiss, the Court allowed the following claims to proceed:
“Plaintiffs’ § 1983 individual capacity claim (Count One), assault and battery claim (Count Five),
and IIED claim (Count Six)” against Harmon and “Plaintiffs’ Monell claims based only on (1)
illegal official policy as to the Paragraph 23 Policy, (2) failure to train in self-defense and stand-
your-ground situations, (3) failure to supervise Officer Harmon, and (4) custom of tolerance
(Counts Two, Three, and Four)” against the City of Columbus (the “City”). (Doc. 268 at 26–27).
The Court then reset briefing on the two Motions to Compel. (Doc. 274). Defendants subsequently
filed a Motion to take two depositions after the close of discovery. (Doc. 280). All three discovery
motions are fully briefed and ready for review. (Docs. 246, 251, 280, 283, 284, 287, 292, 293,
294).
II. STANDARD
Federal Rule of Civil Procedure Rule 26 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.” Fed. R. Civ. P. 26(b)(1). And Rule 37 allows for a party seeking
discovery to move for an order to compel that discovery. Fed. R. Civ. P. 37(a)(1). “The proponent
of a motion to compel discovery bears the initial burden of proving that the information sought is
relevant.” Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010) (citation
omitted). “While relevancy is broad, ‘district courts have discretion to limit the scope of discovery
[when] the information sought is overly broad or would prove unduly burdensome to produce.’”
Plain Local Sch. Dist. Bd. of Educ. v. DeWine, 335 F.R.D. 115, 119 (N.D. Ohio 2020) (alteration
in original) (quoting Surles ex rel. Johnson v. Greyhound, Lines, Inc., 474 F.3d 288, 305 (6th Cir.
2007)). At base, “the scope of discovery is within the sound discretion of the trial court.” Stumph
v. Spring View Physician Practices, LLC, No. 3:19-CV-00053-LLK, 2020 WL 68587, at *2 (W.D.
Ky. Jan. 7, 2020) (quotation marks and citations omitted).
III. DISCUSSION
The Court begins with Plaintiffs’ Motions before turning to Defendants’ and the case
schedule.
A. Motion to Compel Psychological Evaluation
On August 12, 2025, Plaintiffs served on Defendant Harmon requests for production of
documents. (Doc. 246-1 at 1–4). Request for Production 13 asks Harmon to “produce all
psychological records and employment records for Columbus police officer Carl Harmon for all
the years he has been or was employed with the City of Columbus Division of Police.” (Id. at 3).
Harmon objected that psychological records “are not relevant to any pending claim or defense or
proportional to the needs of the case, and the request is harassing. In addition, any psychological
records are subject to a physician-patient and/or psychotherapist-patient privilege, which has not
been waived and will be maintained.” (Id.). Plaintiffs were dissatisfied with this objection. (See,
e.g., Doc. 167). In working through the dispute, the City offered to search for Harmon’s
psychological records in their possession and produce anything not already produced. (Doc. 176).
Subsequently, the City produced a one-page fitness to return to duty letter signed by Dr.
John Malinky, Ph.D., that the Columbus Division of Police’s human resources department received
on May 18, 2023. (Doc. 246-5). The letter indicates that Dr. Malinky conducted a “Critical Incident
Stress Debriefing interview and evaluation” for Harmon after the events at issue in Plaintiffs’
complaint. (Id.). He noted six psychological questionnaires he administered. (Id.). He then
provided, “[b]ased on the above information, it is my professional opinion, with a reasonable
degree of psychological accuracy, that Officer Harmon is able to safely perform his job as a police
officer.” (Id.). He also stated “[i]f there are any questions, please feel free to contact me.” (Id.).
The City received no other information or records from Dr. Malinky. (Doc. 253 at ¶ 6). Plaintiffs
now want the Court to compel Harmon to produce the questionnaire responses mentioned in Dr.
Malinky’s letter and the doctor’s notes. (Doc. 246 at 8). They argue the records are relevant to the
claims and defenses asserted in this case and are not privileged. (See generally id.).
As an initial matter, the Court takes a moment to define the contours of Plaintiffs’ ask.
Plaintiffs’ Request for Production 13 was directed at Defendant Harmon only. (Doc. 246-1 at 1).
Plaintiffs did not attach to their Motion a similar request directed at the City. (See generally Doc.
246). Nor does their motion request enforcement of a subpoena directed at Dr. Malinky. (Id.).
Further, the Motion asks the Court specifically to “order Defendant Harmon to produce the
requested psychological records.” (Doc. 246 at 8). For these reasons, to the extent that the parties’
arguments cover reasons why the Court should or should not compel the City or Dr. Malinky to
produce the records sought, those arguments are not proper. Still, the Court considers the parties’
arguments as they pertain to Defendant Harmon.
1. Relevance
To begin, Plaintiffs claim the records underlying Dr. Malinky’s letter are relevant to the
claims and defenses in this case. (Doc. 246 at 3–6). Specifically, they argue the records matter
for their Monell claim against the City; to “any potential use of excessive force” on the part of
Harmon; and to Harmon’s affirmative defense asserted under Ohio Revised Code Chapter 2744.
(Id.; see also Doc. 292 at 1–3). The Court considers the records against each.
a. Monell Claims
As noted above, Plaintiffs’ surviving Monell claims under 42 U.S.C. 1983 against the City
allege an illegal official policy of “ignoring and allowing officers to use deadly and excessive force,
and a ‘condoning an act first then think later’ attitude”; failure to train in self-defense and stand-
your-ground situations; failure to supervise Defendant Harmon; and a custom of tolerance of
excessive force. (See Doc. 268 at 27; see, e.g., Doc. 148 at ¶¶ 23, 32, 33, 34, 37, 58, 62).
Plaintiffs begin by arguing that courts routinely presume relevance of officers’ mental
health records in these types of cases. (Doc. 246 at 3–4). But the Court reads the cases Plaintiffs
cite differently. Take Eze v. Lunsford, No. 2:23-CV-00976-KWR-KRS, 2025 WL 605018, at *2
(D.N.M. Feb. 25, 2025), as the first example. There, relevance was not contested. Similarly, in
Chavez v. City of Farmington, No. CV 15-171 JCH/SCY, 2015 WL 13650097, at *4 (D.N.M. Nov.
25, 2015), the Court addressed privilege, not relevance, and noted that an “officer’s privacy interest
in his non-mental health medical records outweighs any slight relevance they might have.” So too
in Rice v. Reliastar Life Ins. Co., No. CIV.A. 11-44-BAJ-CN, 2011 WL 5513181, at *3–5 (M.D.
La. Nov. 10, 2011), where the court considered privilege only and had nothing to say about
relevance. Accordingly, here—where relevance is hotly contested—the Court will not take for
granted that the requested records are relevant.
Plaintiffs also offer cases where courts have analyzed and found psychological records
relevant. See, e.g., Capps v. Dixon, 593 F. Supp. 3d 146, 151 (D.N.J. 2022) (finding psychological
records post-dating a shooting are relevant “because they may demonstrate a pattern by the City
of condoning excessive force by its officers . . . . Furthermore, post-incident evidence may be
relevant insofar as it may contain specific admissions or information concerning the circumstances
surrounding the arrests.”); Est. of Turnbow v. Ogden City, 254 F.R.D. 434, 438 (D. Utah 2008)
(finding an officer’s post-shooting stress interview “may be” relevant to a plaintiff’s claims against
the officer for unspecified reasons); Kamper v. Gray, 182 F.R.D. 597, 599 (E.D. Mo. 1998)
(finding records an employer has in their possession regarding an officer’s involvement in a
shooting were relevant and discoverable but providing no more insight into that finding).
But Defendants have cases on their side, too. Primarily, Defendants note that the records
underlying Dr. Malinky’s letter cannot be relevant because the City never requested or saw them.
(Doc. 283 at 9–11). This Court’s decision in King v. City of Columbus, No. 2:18-CV-1060, 2019
WL 13516345, at *12 (S.D. Ohio Oct. 31, 2019), underpins Defendants’ position. There, a police
officer shot and killed a child. Id. at *1. Like Plaintiffs here, King brought claims for excessive
force against the officer and a municipal liability claim. Id. Those defendants sought a protective
order to, among other things, shield production of documents “relating to any behavior or
psychological issues” concerning the officer. Id. at *11. The Court found that the officer’s mental
health records were “relevant to the allegations against the City of Columbus for maintaining
unconstitutional customs or policies.” Id. at *12. The Court explained, “[I]f the City of Columbus
was in possession of mental health records that show it was placing [the officer] on duty while he
had mental health issues that could impair his objective reasonableness, then such evidence is
relevant to this case.” Id.
Defendants argue that the holding in King implies the converse: records not in the City’s
possession are irrelevant to the question of municipal liability. See also Erbacher v. City of Fort
Collins, No. 23-CV-01341-CNS-NRN, 2025 WL 71664, at *2 (D. Colo. Jan. 10, 2025) (finding
an officer’s mental health therapy records were not relevant to his claims against the city because
his employer “did not have access to them and therefore did not know their contents”); Ashford v.
City of Milwaukee, 304 F.R.D. 547, 552 (E.D. Wis. 2015) (finding psychological testing “never
shared with decision-makers in the police department would not support a Monell claim”). Here,
the undisputed record shows that the City was not and is not in possession of the mental health
questionnaire responses or notes underlying Dr. Malinky’s letter. (Doc. 253 at ¶ 6). In fact, the
City does not, as a matter of course, receive more than a letter from a medical professional stating
whether an officer is able to safely perform their duties after an officer-involved shooting. (Id. at
¶ 5). Therefore, under King, these records are seemingly irrelevant to Plaintiffs’ Monell claims.
Still, Plaintiffs say it matters that Dr. Malinky’s letter told the Columbus Division of Police
to contact him with any questions. (Doc. 246-5). In their view, this was Dr. Malinky’s invitation
“to provide the Police Department with the underlying facts” of Harmon’s evaluation. (Doc. 246
at 7). Further they say the fact that the City “did not pursue such records may be relevant to Monell
liability in and of itself.” (Id. at 5). Concerning Plaintiffs’ interpretation of the letter, their
conclusion that Dr. Malinky would have provided the City the underlying records upon request is
tenuous at best. It is simply too speculative to assume Dr. Malinky would have provided the
questionnaire responses and notes if the City asked based on a common letter sign-off. This is
especially true because the City “does not receive details regarding the officer’s evaluation”
following a critical incident stress debriefing. (Doc. 253 at ¶ 5). At base, no one knows how Dr.
Malinky would have responded.
Plaintiffs’ other argument requires more nuanced consideration. This Court has found
“subsequent incidents” following an officer allegedly violating a person’s rights can be “probative
material of what polices, practices, or accepted customs existed at the time of the incident at issue.”
Abdur-Rahim v. City of Columbus, No. 2:17-CV-601, 2019 WL 1873222, at *2 (S.D. Ohio Apr.
26, 2019). But Plaintiffs do not seek discovery about “subsequent incidents” similar to the events
described in their Second Amended Complaint. Cf. id. (defining the discovery at issue as evidence
of “subsequent similar events” to the underlying allegations: officers pepper spraying protesters).
Rather, the discovery they seek is better classified as subsequent actions—or inactions—on the
part of the City in the aftermath of the alleged rights violations. As Plaintiffs submit, at least one
court has found this general type of discovery can be relevant to Monell claims. See, e.g., Groark
v. Timek, 989 F. Supp. 2d 378 (D.N.J. 2013) (finding a police department’s internal investigations
of a shooting relevant to a Monell claim). But Plaintiffs do not meet their relevancy burden here.
Plaintiffs’ Motion makes no effort to connect this discovery to any of their specific Monell
theories. As noted, they broadly state that “the fact that the [City] did not pursue such records may
be relevant to Monell liability.” (Doc. 246 at 5). This statement does not sufficiently explain how
the underlying psychological records are relevant to any of the four theories of Monell liability at
issue. (See Doc. 268 at 26–27). Notably, Plaintiffs have not expressly challenged the City’s return-
to-duty policies. So, the connection between Plaintiff’s theories and the requested discovery is not
obvious on its face. And Plaintiffs have offered little explanation. See McPherson v. Kelsey, 125
F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to
mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its
bones.”). Even more, Plaintiffs offer no reason for the City to believe that Dr. Malinky—a non-
City employee—engaged in a pro forma evaluation or that his conclusion was otherwise
unreliable. As it stands, Plaintiffs do not meet their burden.
Plus, even if Plaintiffs had done enough to show relevance, that relevance is immaterial in
the face of the Court’s privilege analysis below.
b. Excessive Force Claim
Next, Plaintiffs argue the records underlying Dr. Malinky’s evaluation are relevant to “any
potential use of excessive force” by Harmon and specifically to “compare his statements at that time
with those provided in” his later statements and deposition. (Doc. 246 at 4). These records,
however, are irrelevant to Plaintiffs’ single excessive force claim alleged against Harmon.
Claims for excessive force under the circumstances presented in the operative complaint
are considered under an “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386,
395–98 (1989). Under this standard “the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397. And “[t]he ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. at 396. Against this backdrop, this Court has found that an
officer’s subjective state of mind or perception at the time of a shooting is not relevant to whether
he acted in an objectively reasonable manner. King, 2019 WL 13516345, at *7. In that case, the
Court found “drug, alcohol, psychological, or psychiatric examinations or tests are irrelevant” to
a Fourth Amendment excessive force claim against an officer. Id.
The same logic applies here. Harmon’s post-incident psychological evaluation cannot
provide insight into whether his actions on May 6, 2023, were objectively reasonable. His intent
or motivation that the records may shed light on are irrelevant to that inquiry. See, e.g., id.; Dorato
v. Smith, 163 F. Supp. 3d 837, 884 (D.N.M. 2015) (“[E]vidence of [an officer’s] psychological
health cannot help us to understand whether his actions were ‘objectively reasonable,’ because his
‘underlying intent or motivation’ is irrelevant.”).
Likewise unpersuasive is Plaintiffs’ argument that because Harmon’s evaluation was
conducted less than two weeks after the shooting, Dr. Malinky’s records are relevant to clarifying
factual information or to probing Harmon’s credibility. (Doc. 246 at 4); cf. also Kamper, 182
F.R.D. at 599. Plaintiffs’ best case considered a situation where the moving party provided
“substantial and credible evidence of medical and psychological ailments relevant to the present
dispute”; where the officer’s employer undoubtedly knew of his mental health diagnoses prior to
a shooting; and where the officer was the only living witness to the same. Dorato, 163 F. Supp.
3d at 844, 889 (“The Court does not intend to make it easy for § 1983 plaintiffs to go fishing
through police officers’ medical and psychological records.”) (cataloguing the extensive list of
supporting evidence). Plaintiffs have not offered the same type of support here, and Harmon was
not the only witness to the May 6 shooting by far.
For these reasons, the Court concludes the records underlying Dr. Malinky’s letter are not
relevant to Plaintiffs’ excessive force claim against Harmon. As before, though, any conceivable
relevance is inconsequential in the face of the records’ protected status.
c. Immunity under Ohio Rev. Code § 2744
Lastly, Plaintiffs contend Dr. Malinky’s notes are relevant to Harmon’s affirmative defense
that he is immune from liability for the three state law claims against him under Ohio Revised
Code Chapter 2744. (Doc. 293). Under that law, an employee of a political subdivision is immune
from civil liability unless an exception applies. Ohio Rev. Code § 2744(6). One exception is when
“[t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or
reckless manner.” Ohio Rev. Code § 2744(6)(b). Relying on Estate of Lewis v. Anderson, 2026
WL 1602020 (Ohio Ct. App. 2026), Plaintiffs argue that Harmon’s psychological records are
relevant to the subjective question of whether he acted “with malicious purpose, in bad faith, or in
a wanton or reckless manner” on May 6. (Doc. 292 at 2).
In Lewis, a police officer shot and killed a man in his home while executing an outstanding
arrest warrant. 2026 WL 1602020, at *1–2. The man’s estate brought several state law claims
against the officer including civil battery, the intentional infliction of emotional distress, and the
deprivation of state constitutional and statutory rights. Id. at *2. The officer moved for summary
judgment, arguing his use of deadly force was objectively reasonable and, as a result, he was
entitled to immunity under Chapter 2744. Id. The trial court found a genuine issue of material
fact on that issue and denied the motion. Id. On appeal, the officer argued the trial court erred
because it failed to apply the Fourth Amendment’s objective-reasonableness standard in evaluating
his use of deadly force and he was entitled to the state immunity as a matter of law. Id. at *4.
However, the appellate court found that consideration of the objective-reasonableness standard,
though a “useful threshold inquiry,” is not a “mandatory ‘first step’ in a state law statutory
immunity analysis involving an officer’s use of force during an arrest.” Id. at *4–5. This was
because the immunity applies broadly to political-subdivision employees, not only law
enforcement officers. Id. at *5. Instead, the court found that the central inquiry when considering
an officer’s immunity following the use of force during an arrest is “whether the officer reasonably
and genuinely perceived the suspect as posing a threat of serious harm to the officer or others.”
Id. at *6. The court then went on to note that if a jury could conclude that the officer’s “perceptions
of a threat were caused by his own actions or inactions,” the jury could find that the officer’s
actions or inactions rose to the level of recklessness described in Chapter 2744(6)(b). Id.
Plaintiffs submit that the state court’s rejection of the objective-reasonableness threshold
issue and the comment about a jury’s consideration of officer’s perceptions together show the
Court must engage in a subjective analysis when considering Chapter 2744 immunity. But Lewis
is not the home-run Plaintiffs believe it is.
First, the Lewis court was not called to answer the question of relevance of psychological
records to Chapter 2744 immunity. This fact alone limits Lewis’ applicability to the circumstances
presented in Plaintiffs’ Motion. Especially when the Lewis court did not expressly endorse a
subjective Chapter 2744 analysis.
More importantly, the Lewis parties did not allege federal claims or federal qualified
immunity defenses. Id. at *2. This matters. When an officer defendant, as here, alleges both
federal qualified immunity for excessive force claims and state-law immunity for state law claims,
courts “review the state-law immunity defense through the lens of federal qualified immunity
analysis” if the immunities rest on the same questions of material fact. Raimey v. City of Niles, 77
F.4th 441, 451 (6th Cir. 2023) (considering state law claims of assault and battery); cf. Cooper v.
City of Columbus, No. 22-3251, 2023 WL 1434055, at *9 (6th Cir. Feb. 1, 2023) (“[I]n the context
of a police officer’s use of deadly force, the analysis coincides: ‘[I]f an officer has probable cause
to believe that a person poses an immediate threat of serious injury, the officer’s use of deadly
force against that person is not reckless.’” (citation omitted)). In other words, “[t]he officers’ state-
law statutory-immunity defense . . . ‘stands or falls with their federal qualified immunity defense.’”
Wright v. City of Euclid, 962 F.3d 852, 878 (6th Cir. 2020).
As a result, “where an officer acts reasonably under the Fourth Amendment, his conduct
cannot have been reckless under Ohio law.” King v. City of Columbus, No. 23-3818, 2024 WL
3738581, at *5 (6th Cir. Aug. 9, 2024); cf. Pollard v. City of Columbus, 780 F.3d 395, 404 (6th
Cir. 2015) (“If the officers were objectively reasonable in shooting Bynum, it logically follows
that they could not have been reckless in shooting Bynum.”); Cantrell v. Scioto Cnty., No. 25-
3817, 2026 WL 2019514, at *5 (6th Cir. July 13, 2026) (“[B]ecause the standard for statutory
immunity under Ohio law ‘overlaps’ with the federal standard for qualified immunity under federal
law, Officer Boggs is likewise entitled to immunity from Jessie’s state-law claim.”). And more
specifically, a “finding that an officer acted unreasonably is a necessary prerequisite to finding that
his conduct was” at least reckless under Ohio law. King, 2024 WL 3738581, at *5 (citing Jordan
v. Howard, No. 29190, 2021 WL 5275974, at *13 (Ohio Ct. App. Nov. 12, 2021) (noting it would
be “factually and logically inconsistent” to conclude an officer was reckless in causing a decedent’s
death if the officers’ use of deadly force was reasonable)).
In the end, because Plaintiffs’ excessive force claim and Harmon’s qualified immunity
defense turn on whether Harmon’s actions on May 6 were objectively reasonable, so does
Harmon’s state immunity defense. See Lewis, 2026 WL 1602020, at *5 (“[I]f an officer’s use of
force is objectively reasonable under the circumstances, then it cannot satisfy the heightened
culpability necessary to establish recklessness or wantonness, much less bad faith or malicious
conduct.”); Wright, 962 F.3d at 878. Therefore, any subjective information Plaintiffs could glean
from Dr. Malinky’s psychological evaluation notes is not relevant to Harmon’s asserted defenses.
In sum, Plaintiffs have not met their relevancy burden. But beyond relevance, the records
are out of Plaintiffs’ reach for another reason: they are protected by the psychotherapist-patient
privilege.
2. The Psychotherapist-Patient Privilege
Even if the psychological records are relevant, Plaintiffs still have a high hurdle to
overcome. As noted above, in response to Request for Production 13, Harmon objected on the
grounds that the psychotherapist-patient privilege protects his records from disclosure. (Doc. 246-
1; see also Doc. 283 at 11–14). Plaintiffs counter that the privilege never attached because
Defendant Harmon was aware his conversations with Dr. Malinky would be shared with his
employer. (Doc. 246 at 6–8; Doc. 292 at 3–5).
The psychotherapist-patient privilege generally applies to “confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or treatment.” Jaffee
v. Redmond, 518 U.S. 1, 15 (1996); see also In re Zuniga, 714 F.2d 632, 639 (6th Cir. 1983). The
importance of this privilege cannot be overstated. As the Supreme Court has recognized, the
privilege facilitates “the provision of appropriate treatment for individuals suffering the effects of a
mental or emotional problem.” Jaffee, 518 U.S. at 11 (“The mental health of our citizenry, no less
than its physical health, is a public good of transcendent importance.”). In Jaffee, the Court went on
to caution: “If the privilege were rejected, confidential conversations between psychotherapists and
their patients would surely be chilled, particularly when it is obvious that the circumstances that give
rise to the need for treatment will probably result in litigation.” Id. at 11–12.
Relevant here, and specific to the context of discovery of police fitness for duty reports,
courts have concluded “that where an officer has an expectation of confidentiality in a psychological
examination, the privilege shields the psychological records from disclosure.” Capps, 593 F. Supp.
3d at 154 (collecting cases); Hibbs v. Marcum, No. 3:16-CV-146-TBR-LLK, 2018 WL 953347, at
*4 (W.D. Ky. Feb. 20, 2018) (noting an officer’s testimony that he expected communications made
during psychotherapy to be private and confidential); Mitchell v. City of Warren, No. 09-CV-11480,
2012 WL 1405856, at *2 (E.D. Mich. Apr. 23, 2012) (finding the privilege applied where an
employer received a report saying whether an officer was fit for duty but there was no indication
that the officer was aware his communications with the psychotherapist would be disclosed to third
parties); see also Scott v. Edinburg, 101 F. Supp. 2d 1017, 1020 (N.D. Ill. 2000) (noting the
“threshold requirement for the existence of the psychotherapist patient privilege is that there be an
expectation by the patient that the communications with the psychotherapist will remain with the
psychotherapist and will not be disclosed to others”). That said, courts have found the privilege
“does not apply when the party asserting the privilege has no reasonable expectation of
confidentiality regarding counseling sessions he received.” Capps, 593 F. Supp. 3d at 153.
Here, Harmon had a reasonable expectation of confidentiality concerning his
communications with Dr. Malinky. As discussed in detail above, after an officer engages in a critical
incident stress debriefing with a non-City-employee medical professional like Dr. Malinky, the City
“receives only a letter from the medical professional.” (Doc. 253 at ¶ 5 (emphasis added)). In other
words, the healthcare provider does not give the City underlying notes, questionnaire responses, or
medical records. The letter reflects solely whether the officer is “able to safely perform their duties
as a police officer,” without disclosing “any details regarding the officer’s evaluation.” (Id.). Given
this is the normal course, there is no reason that Harmon—or a reasonable person in his position—
would believe that his underlying psychological records or his communications with Dr. Malinky
would be shared with the City, or anyone else. (See Doc. 283 at 14).
Despite the City’s policy, Plaintiffs counter that Defendant Harmon was “well aware” his
conversation with Dr. Malinky was not privileged. They cite to Defendant Harmon’s testimony that
he told an assistant chief at the Columbus City Police Department he was “frustrated with how long
it took to be interviewed by a psychologist so I could go back to work.” (Doc. 282-1 at 88–89).
Plaintiffs say the testimony shows Harmon “was aware of the process of the required Critical
Incident Stress Debriefing with a psychologist, and that such conversations would be disclosed to
his employer.” (Doc. 246 at 7). Their interpretation of the deposition testimony is inapposite.
Harmon’s awareness that a psychologist’s sign off was required for him to return to work in no way
demonstrates that he believed his communications with the psychologist would be shared with the
City. If anything, Harmon’s comment shows that he knew only that he needed to meet with Dr
Malinky—not that the City would also evaluate his records before he could return to work. And to
the extent Plaintiffs additionally assert Dr. Malinky’s invitation for questions demonstrates a lack of
confidentiality, the Court already rejected that interpretation. The Court concludes that the
psychotherapist-patient privilege applies to the records underlying Dr. Malinky’s letter.
Still, it is possible for a patient to waive the psychological privilege “if the psychotherapist-
patient records are disclosed to a third party.” Green v. Taylor, No. 1:03-cv-1804, 2005 WL
8167545, at *2 (N.D. Ohio May 4, 2005) (citation omitted); see Phelps v. Coy, 194 F.R.D. 606, 608
(S.D. Ohio 2000) (denying a motion for a protective order where communications between the
defendant and a psychologist were disclosed to the defendant’s employer). Several courts have
addressed the situation this Court now faces. Specific to psychological evaluations of police officers
following shootings, the privilege is not waived “if the only information provided to the police is
whether the officer passed or failed the exam.” Green, 2005 WL 8167545, at *2 (finding the
privilege maintained where the plaintiff “provided no evidence that information from a
psychological evaluation was shared with the police department”); see also Mitchell, 2012 WL
1405856, at *2 (finding privilege where a police department received a letter providing the
officer’s fitness for duty but not the psychological evaluation reports); Caver v. City of Trenton,
192 F.R.D. 154, 162 (D.N.J. 2000) (finding notable that a police department was given only a pass
or fail recommendation of fitness for duty). The uncontroverted record shows the City received only
a letter finding Harmon fit for duty, without additional information or explanation. (Doc. 253 at ¶ 6).
Because the underlying records or communications were never disclosed, the psychotherapist-
patient privilege remains intact.
One final point. The Court emphasizes the considerations relevant to the psychotherapist-
patient privilege outlined in Jaffee. Specific to officer evaluations following uses of force, police
departments have “a 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 v.
Miles, No. CV1812973BRMZNQ, 2020 WL 3546808, at *4 (D.N.J. June 30, 2020). Ordering
production of evaluation records meant to be confidential and not otherwise disclosed “would serve
to disincentivize an officer from revealing sensitive information to a psychotherapist for fear that it
might later become the subject of litigation.” Id. While this Court must consider assertions of
privilege on a case-by-case basis, the circumstances presented in this case and the significant policy
interests underpinning the psychotherapist-patient privilege align.
In sum, the Court concludes that Plaintiffs have not met their burden to show any records,
notes, or questionnaire responses underlying Dr. Malinky’s fitness for duty letter as to Harmon are
relevant to the claims or defenses asserted in this case. And even if they could make that showing,
the records are protected by the psychotherapist-patient privilege. Consequently, the Court DENIES
Plaintiffs’ Motion (Doc. 246).
B. Motion to Compel Deposition Answer
Relatedly, Plaintiffs filed a Motion to Compel about Harmon’s deposition. (Doc. 251).
Harmon’s deposition was held on October 30, 2025. (Doc. 164, 282). At the deposition, Plaintiffs’
counsel asked Harmon if he saw a psychologist or psychiatrist after the shooting. (Doc. 282-1 at
62). Harmon responded that he saw Dr. Malinky once. (Id.). Then, Plaintiffs’ counsel asked if
he had ever been diagnosed with a mental health condition. (Id. (“Now, have you ever been
diagnosed with a mental health condition?”)). Harmon’s counsel objected on privilege grounds
and instructed her client not to answer. (Id.). Taking his counsel’s advice, Defendant Harmon did
not answer. (Id. at 62–63). Plaintiffs now ask the Court to compel Defendant Harmon to answer
the question. (Doc. 251 at 7; see also Doc. 293). Defendants resist based on relevance,
overbreadth, and the psychotherapist-patient privilege. (Doc. 284; see also Doc. 294).
1. Relevance and Overbreadth
Similar to their other motion, Plaintiffs assert that whether Harmon has “ever been
diagnosed with a mental health condition” is relevant in several ways. Like before, Plaintiffs argue
relevance as to their excessive force claim against Harmon, Harmon’s state immunity defense, and
their Monell claim against the City. (Doc. 251 at 5–6; Doc. 292 at 2; see also Doc. 293).
To begin, Plaintiffs’ relevancy arguments pertaining to their excessive force claim and
Harmon’s immunity defense are substantially similar to those addressed above. (Compare Doc.
246 at 3–4 with Doc. 251 at 4–7; see also Doc. 292 at 2–3 (presenting the same argument for both
motions as to the immunity defense)). The Court’s analysis applies here as well. That is to say,
the deposition answer is irrelevant to an objectively reasonable inquiry. See, e.g., King, 2019 WL
13516345, at *7; Dorato, 163 F. Supp. 3d at 884; Raimey, 77 F.4th at 451; Wright, 962 F.3d at
878; King, 2024 WL 3738581, at *5.
Plaintiffs’ relevancy submission as to their Monell claim is slightly different from before,
but no more successful. They specifically argue that whether Harmon has been diagnosed with a
mental health condition is relevant to “(a) the likelihood of prior misconduct (pattern or history);
(b) whether the department knew or should have known about risk; (c) potential municipal liability
under Monell.” (Doc. 251 at 5–6 (also alleging the information is relevant to the City’s knowledge
of Harmons “propensity toward violence”)). As noted above, this Court has found that
psychological testing could be relevant to a Monell claim if an officer’s employer was aware of
those records. King, 2019 WL 13516345, at *8 (“If the City of Columbus put Officer Mason on
duty knowing he had issues with perception . . . that had an [e]ffect on his objective reasonableness,
then such evidence would be relevant . . . And if the City of Columbus had a policy of putting him
on the street knowing he was more likely to act in an objectively unreasonable manner, then the
City could be potentially held liable under Monell for deliberate indifference.”)). This logic
applies to a mental health diagnosis as well.
But Plaintiffs have not met their burden to demonstrate relevancy here, where there is no
more than conjecture that the City had access to Harmon’s mental health diagnoses. While
Plaintiffs submit that Defendant Harmon’s psychological records “should have been compiled
when he underwent an evaluation following the incident on May 6, 2023, if he hadn’t had one
when interviewing for the position with the police department,” this is speculation. (See also Doc.
253 at ¶ 6). Significantly, at the time they filed this Motion, Plaintiffs had access to Harmon’s
personnel and disciplinary files from discovery. (See Doc. 284 at 10). Yet Plaintiffs offer nothing
suggesting records detailing Harmon’s mental health diagnoses were ever created, compiled, then
provided to the City. It is thus not as obvious as Plaintiffs assert. (Doc. 253 at ¶ 6). Additionally,
to the extent that Plaintiffs submit that the information is broadly relevant to “potential municipal
liability under Monell,” this assertion is fatally unspecific as the Court has already discussed.
Further, as Defendants argue (Doc. 284 at 4–5), Plaintiffs’ question, as asked, seeking any
and all of Harmon’s mental health conditions—no matter when he was diagnosed or whether the
City ever saw the diagnosis—is overbroad on its face.1 Cf. Hibbs, 2018 WL 953347, at *5 (finding
a request for pre-employment psychiatric evaluations overly broad because “it [was] not limited
to pre-employment psychiatric evaluations performed in connection with his employment with law
enforcement or at the request of a law enforcement type of employer” and because it was
“unlimited in scope”).
For these reasons, the Court concludes Plaintiffs have not met their burden to show the
deposition answer is relevant to the claims and defenses asserted in this case and the question is
overbroad on its face. Moreover, as before, this information is also protected by the
psychotherapist-patient privilege.
2. The Psychotherapist-Patient Privilege
Like their first Motion, Plaintiffs argue that the psychotherapist-patient privilege does not
apply to Harmon’s mental health conditions.2 (Doc. 251 at 8–9). They assert Harmon did not have
a reasonable expectation of privacy as to any records diagnosing him with a mental health condition
since any “testing was done to obtain, maintain, or continue employment as a police officer.” (Id.).
1 Plaintiffs now say they only want to know of “any mental health condition(s) or diagnosis for Defendant Harmon
previous to May 6, 2023.” (Doc. 251 at 7). The Court’s findings apply equally to this amended ask.
2 Plaintiffs spend a portion of their Motion arguing against an invocation of physician-patient privilege. (Doc. 251 at
8). Defendants’ response does not justify Harmon’s objection under the physician-patient privilege. (Doc. 284 at 11–
13).
They further state “[a]ll of that information is not privileged as it is presumed and known that it
would be seen and reviewed by” the City. (Id. at 9).
Up front, the Court is puzzled by Plaintiffs’ assertion that it is “presumed and known” that
Harmon’s historical mental health diagnoses would be known to the City. They do not offer support
for this assumption. There is simply nothing in the record before the Court indicating Harmon’s
supposed diagnoses were shared with his employer or that his employer required them to allow
Harmon to “obtain, maintain, or continue employment as a police officer.” Again, Plaintiffs have
access to Harmon’s personnel and disciplinary files. If the files reveal such information, Plaintiffs
have not shared it with the Court. And it is unchallenged that the City did not receive any historical
mental health records or diagnoses with Dr. Malinky’s fitness to return to duty letter. (Doc. 253 at
¶ 6).
Against this backdrop, and for the same reasons as explained above, Harmon has a reasonable
expectation of confidentiality in his mental health diagnoses, and he did not waive the privilege. His
answer to the deposition question is, therefore, protected by the psychotherapist-patient privilege.
***
The Court again concludes Plaintiffs have not met their relevancy burden, the question asked
is overbroad, and the information sought is protected by the psychotherapist-patient privilege. For
these reasons, Plaintiffs’ second Motion to Compel (Doc. 251) is DENIED.
C. Motion for Leave to Take Depositions After Close of Discovery.
Next, Defendants move for leave to issue and serve deposition subpoenas after the close of
discovery on two witnesses, Jayona Ford and Jonez Martin. (Doc. 280). Plaintiffs do not object to
the request. (Doc. 287). And in fact, the parties have collaborated on the timing and method of the
depositions. (Doc. 291). For good cause shown, the Motion (Doc. 280) is GRANTED. These
depositions may proceed.
D. Case Schedule
Finally, the Court considers next steps in this litigation. As it stands, discovery is closed,
except for the depositions noted above. (Doc. 249). Because there are no more discovery motions
requiring the Court’s attention, the dispositive motions deadline may be reset. The Court SETS the
parties’ dispositive motions deadline to October 30, 2026. Response and reply deadlines shall
follow the Local Rules. The parties are WARNED the Court will not extend these deadlines further.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motions to Compel (Docs. 246, 251) are both
DENIED. Defendants’ Motion for Leave (Doc. 280) is GRANTED. Dispositive motions are due
on or before October 30, 2026.
IT IS SO ORDERED.
Date: September 10, 2026 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE