Karen M. Humphreys

On discovery into a police officer's psychological records, Humphreys draws a careful line under Jaffee v. Redmond: PRE-EMPLOYMENT psychological evaluations are NOT privileged (they are hiring evaluations, not treatment, and the officer has no reasonable privacy expectation in information he knew the department would see), and a post-incident report's fitness-for-duty CONCLUSION is discoverable, but the actual treatment/counseling notes in a post-incident report ARE privileged and withheld. Practical lesson: in a Section 1983 excessive-force case before her, expect to obtain an officer's pre-employment evaluation and any fitness-for-duty determination (under a protective order), but not the substance of post-incident counseling.

“Thompson's pre-employment interview with Dr. Davis was in the context of the police department's hiring evaluation, not in the context of treatment. Under the circumstances, the Jaffee psychotherapist-privilege simply does not apply. ... The doctor's recommendation of fitness for duty is not protected by any privilege and shall be disclosed by defendants to plaintiff.”

On appointing counsel for IFP civil plaintiffs, Humphreys applies the Tenth Circuit's Castner factors and weighs the merit of the claims and the plaintiff's capacity to self-represent heavily -- she will review the underlying EEOC/state-agency investigative file to gauge merit, and a financially-eligible, diligent plaintiff can still be denied counsel if his claims look weak and he is articulate and the case is non-complex. She also keeps the analysis clean: a party's criminal history is irrelevant to the appointment-of-counsel question (even if discoverable for credibility). Practical lesson: a renewed motion for counsel that is 'nearly identical' to the first will be denied; a motion to reconsider is 'viewed with disfavor' after two denials.

“Based upon the review of that file, the court finds that plaintiff's claims do not have sufficient merit to warrant the appointment of counsel. Additionally, plaintiff participated meaningfully in the January 20, 2015 scheduling conference and was both responsive and articulate. At this time, plaintiff is found to be capable of presenting this non-complex case without the aid of counsel.”