06-0644 | Omnilex

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06-0644-op
In re Sims
06-0644-op
In re Sims

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: January 16, 2008

Decided: July 18, 2008)
Final brief submitted: February 15, 2008

Docket No. 06-0644-op

IN RE: NATHANIEL SIMS

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NATHANIEL SIMS,

Petitioner,

\- V. -

MIKE J. BLOT, Correctional Officer, FRANCISCO
CARABALLO, Correctional Officer,

Respondents.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

Petition for a writ of mandamus to reverse an order of the
United States District Court for the Southern District of New York,
Loretta A. Preska, Judge, requiring petitioner, who has asserted
claims pursuant to 42 U.S.C. § 1983 for use of excessive force but
is not seeking damages for mental or unusual emotional injury, to
disclose his mental health records to respondents.

Petition granted; order reversed.

ANTONY L. RYAN, New York, New York (Jeffrey B.
Korn, Josef M. Klazen, Cravath, Swaine & Moore,
New York, New York, on the brief), for
Petitioner.

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ROBERT C. WEISZ, Assistant Solicitor General,
New York, New York (Eliot Spitzer, Attorney
General of the State of New York, Michael S.
Belohlavek, Senior Counsel, New York, New York,
on the brief ), for Respondents.

KEARSE, Circuit Judge:

Petitioner Nathaniel Sims, a New York State ( "State")
prisoner who is pursuing an action pursuant to 42 U.S.C. § 1983
against State corrections officers for the alleged use of excessive
force against him on December 20, 1999, seeks a writ of mandamus to
set aside a discovery order of the United States District Court for
the Southern District of New York, Loretta A. Preska, Judge,
requiring disclosure of Sims's privileged psychiatric treatment
records for the period December 20, 1997, through January 20, 2000.
The district court ruled that Sims's deposition testimony as to
communications with mental health professionals waived his privilege
of confidentiality with respect to psychotherapist-patient
communications, and that fairness required that Sims disclose his
psychiatric records to respondents notwithstanding his withdrawal of
any claims for emotional injury damages beyond those ordinarily
associated with a conventional claim for pain and suffering
resulting from an assault and physical injury, and his renunciation
of any reliance on evidence as to, inter alia, his fears of
corrections officers. In his petition for mandamus, Sims argues
principally that the district court erred as a matter of law in
finding (a) that he had waived the privilege, and (b) that there
would be unfairness in denying respondents' access to his mental

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health records. For the reasons that follow, we grant the writ of
mandamus and reverse the order for disclosure.

## I. BACKGROUND

The present petition arises out of an altercation that
occurred on December 20, 1999 (the "December 20 incident") during a
routine strip frisk of Sims, who was then an inmate at New York's
Sing Sing Correctional Facility ("Sing Sing"). Sims contends that
respondents Mike Blot and Francisco Caraballo, Sing Sing corrections
officers, physically assaulted him without provocation or
justification. Respondents contend instead that Sims started the
altercation. The history of the proceedings leading to this
petition -- spanning two actions -- is not in dispute.

## A. The Proceedings in the Original Action

Sims initially filed a § 1983 complaint pro se in the
Southern District of New York ( "SDNY") in February 2000 ( "Pro Se
Complaint" or "original complaint" ), using the SDNY complaint form
for pro se prisoners, against respondents and seven others
(collectively "defendants"), requesting money damages, injunctive
relief, and termination of the defendants' employment. With respect
to Blot and Caraballo, the complaint described the December 20
incident as follows:

I was told to stay facing the wall[, ] hand back my
shirt. This done I was told to hand back my shoes.
This done I was told to remove my pants and hand
them back. When I reached down to take my pants

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off, C.O. M. Blot punched me in the back of my head
and then grabbed me around my chest pinning my arms
at my side and slammed me to the floor. At this
time C.O.s Carabello [sic], White, and McDonough
commensed [sic] to kick, stomp and punch me about my
head, neck, shoulders and back. I yelled out for
Sgt. Hasse to come and intervene to no avail. While
I was struggling to cover up from being either
kicked or punched in a vital area, my feet was
grabbed and held by someone while C.O. M. Blot
placed his knee in my side and kept punching me in
my head. C.O. F. Carabello, [sic] shouted, "You hit
a f --- ing officer, you piece of s --- , we'll kill
you." At this time, C.O. F. Carabello, [sic] pulled
his pocket knife and swung down in a stabbing
motion. I twisted away as best I could but was cut
by his knife anyway.

(Pro Se Complaint Item IV. ) In response to the SDNY complaint
form's instruction to describe any injuries sustained, Sims stated,
"I received a laceration over eye that required five [5] steri-
strips to close; I also had swelling to right shoulder, pain
medication given." (Id. Item V-A.)

In August 2003, after the claims against all of the
defendants other than Blot and Caraballo had been dismissed, either
on summary judgment or by stipulation, Sims's complaint was
dismissed on the ground that he had failed to exhaust his
administrative remedies. In the meantime, there were discovery
proceedings in 2000-2002 leading to the order at issue here.

Defendants scheduled Sims's deposition for December 2000.
Sims asked the district court either to relieve him of the
obligation to give pretrial testimony in the form of a deposition or
to appoint counsel to represent him. The court denied both requests
in an order filed on November 28, 2000, and denied a renewed request
for the appointment of counsel in an order filed on December 11,

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2000\. The court stated that Sims would be allowed to renew his
request for assignment of counsel after submitting a copy of the
transcript of his deposition.

## 1. Sims's Deposition

Defendants proceeded to depose Sims. Assistant Attorney
General ( "AAG") Nicola N. Grey, representing the defendants,
questioned Sims, representing himself.

Q. Can you please describe for me what
happened to you on December 20th, 1999?

A. Yes. I was coming back into the special
housing unit at Sing Sing from the hospital, and
Officers Blot, Carabello [sic], White, and McDonough
were standing around the strip frisk area waiting
for me to come in. When I got in I had a few words
with Officer Blot which basically stem from prior
confrontation I had with him a week earlier. While
I was standing there waiting to get processed back
in the guy from [the Inspector General's office]
came in and I tried to stop him to speak to him, let
him know that I had a feeling that this was about
ready to get a little bit out of hand, and I wanted
him to stick around. He said that he couldn't stop
at that particular moment, but he would come see me
a little later on.

(Deposition of Nathaniel Sims, December 28, 2000 ( "Sims Dep. "),
at 15.) Sims stated that he began removing items of clothing as
instructed by Blot, and

while I was taking my pants off he hit me.

Q. Then what happened after that?

A. Rushed me, grabbed me, bear hug, threw me
to the floor, and the rest of the officers commenced
to helping [sic] him out here. In the process of
that --

Q. What do you mean by helping him out?

A. Helping him to physically assault me. In

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the process of that, Officer Carabello [sic] yelled
out to me: You hit an officer! I'll kill your
effen' behind. Okay. So while they was punching on
me and everything I seen him swing down, I moved my
head and he cut me [with a knife] . . . . Eventually
they put handcuffs and shackles on me and rushed me
down to the ER.

(Id. at 16.)

Sims testified that he was returned to the special housing
unit ( "SHU") on the night of the incident; but on the next day, he
was moved back to the hospital and placed in the psychiatric
satellite unit ( "PSU"). (See id. at 18.) Sims stated that he was
not on PSU status at that time but was kept in the PSU for several
weeks thereafter "for security reasons." (Id. ) The AAG questioned
Sims about his PSU status :

Q. Okay. I want to direct you to your
complaint. It states in your complaint that you
were being returned from PSU, mental health unit,
prior to the incident?

A. Yes.

Q. Did you have PSU status at that time?

A. At that time I did, yes.

Q. So on 12/20/99 prior to --

A. Prior to that.

Q. -- prior to returning to the SHU you had --

A. I was admitted on the PSU.

Q. How long were you in PSU?

A. From the 13th, 12/13 to -- no, 12/13/99.
Pardon me.

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Q. And why were you admitted to the PSU?

A. They thought I was kind [of] bugging. What
happened was I punched the plexiglas and broke it,

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and cut my hand. This is basically what started all
this. Officer Blot and Officer Carabello [sic] had
just beaten up on a crazy inmate and I spoke up.
That's basically what happened. And because of that
it escalated to -- first they was talking about coming
to my cell, and I was like: All right! Fine! We
can do that. And I had a pen, and I had a cup of
liquid detergent and they was saying that I was
threatening to throw it on them, this crazy
nonsense. But that's what started all this. That's
where the week earlier came from where we had the
words .

What they end up doing was moving me and
putting me behind glass. And I felt that there was
no need to be placed behind glass because I hadn't
thrown anything, hadn't threatened to throw
anything, so I broke the glass.

Q. And after you broke the glass what
happened?

A. Well, because I end up cutting myself with
the glass they felt that I was really, really out of
it. They sent me upstairs to PSU to calm down,
basically. And I ended up staying up there for
about a week. I came back that Monday which was
[ December ] 20th. I believe that was the Monday.

Q. Okay. So, prior to getting escorted to SHU
they took you off of PSU status.

A. Right.

(Sims Dep. 24-28.)

One of those sued by Sims in his original complaint was
Lorraine Del Santo, a psychiatric nurse. Asked why he had made her
a defendant, Sims responded that although Del Santo was not present
at the December 20 incident, she had been included because Sims had
told her prior to the incident that he "had been threatened by two
of these officers on a regular basis." (Id. at 30.) The AAG

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questioned Sims about that conversation:

Q. How did you make your complaint to Del
Santo, the nurse?

A. She got to be the mental health therapist
that made rounds at SHU. And being that I see
inmates from MHU [Mental Health Unit], I see them on
a regular basis from a lot of stress and things of
that nature, I explained to her during her rounds
and a few times when I've gone upstairs to PHU [sic]
I explained to her I had to get away from down there
because I stand by ready to lose it. They keep
constantly threatening me, and I'm not going to sit
back and let them do it to me first, so before it
happens I think I have -- need a break. Put me up
here from downstairs, let things calm down. On one
occasion I told her that these guys was threatening
me. Her response was: Well, you must have done
something to them. Okay.

Q. How many times did you complain to her?

A. I complained to her more than five times.
How many exactly, I can't recall. But I know it was
definitely more than five times.

(Sims Dep. 32-33.)

Sims stated that he complained to Del Santo that the
threatened assaults were "stressing [him] out" (id. at 62), but that
nothing was ever done about those complaints. The AAG asked:

Q. Well, what did you expect Del Santo to do?

A. Like I said, that's my therapist, and being
that I constantly complain to her she could go to
the Superintendent and explain to them: Listen, you
know, the guy's one of our patients. You know, he's
down there in your area. Do something about this
before it gets out of hand. You know, she has my
whole folder right there. She knows how I can get.
Why allow it to escalate to that?

Q. Did you ask her to talk to the
superintendent?

A. I asked her to speak to a few people. I
said: Talk to whoever you've got to talk to to get
them to stop bothering me, or get me out of here.

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Q. How could she get you out of there?

A. Like I said, put me -- you know, they doing
the same thing here now, mental health may go to the
deputy of security, or go to the Superintendent.
Listen, it would be beneficial to get Sims out of
here. He's wearing his welcome out, or something.
Anything! She could sit there, you know, like for
his state of mind it would be beneficial to get him
out of here.

Q. So she would have had to put you on PSU
status?

A. No, she wouldn't have to put me on PSU
status, but being my therapist she could make --
basically speak for me.

(Sims Dep. 62-64.)

As to the injuries claimed by Sims, the AAG questioned him
as follows :

Q. Did you receive any injuries?

A. Yeah.

Q. And what injuries did you receive?

A. That laceration for one, swelling of my
back, had to get five sutures to -- steri-strips to
close that up.

(Id. at 52.) After Sims described having the blood washed out of
his eye, from the laceration above it, and stated that he had been
given pain medication for his back, the AAG inquired as to any
further injuries and received a negative response:

Q. And besides these injuries did you receive
any other injuries?

A. No.

(Id. at 53.)

After exploring Sims's filing of a grievance and an

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administrative complaint about the December 20 incident, the AAG
returned to the subject of injury:

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Q. Besides the physical injuries did you
suffer any mental injuries as a result of this
incident?

A. I wouldn't say I suffered mental injuries
as a result of this, but I do think about it
continuously.

Q. Any emotional effects?

A. In fact, I dream about it.

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Q. Any emotional or psychological injuries as
a result of this?

A. Emotionally, yes.

Q. What are those injuries?

A. I have to sit here, and every time I see a
knife in one of the officer's hands I have to
actually restrain myself from reacting because I
don't know if they'll be allowed to do this again.
And it has an emotional toll on me. As I say, I had
dreams about this. I'm just not used to being on
the receiving end of it. I mean, I've spent almost
twenty years of my life in prison and never been cut
by a prisoner or anyone, and I've got to be cut by
an officer. That doesn't sit too well with me.

Q. Are you receiving any treatment for your
emotional injuries?

A. Not pertaining to this particular incident,
no.

(Sims Dep. 55-56.)

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In September 2001, the court granted summary judgment
dismissing the complaint against Del Santo and two other defendants
to whom, Sims testified, he had complained but who were not present
at the December 20 incident.

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2\. The Motion for Production of Sims's Psychiatric Records

In October 2001, the court granted a renewed request by
Sims for the assignment of counsel; it appointed Jeffrey B. Korn,
Esq., et al. Shortly thereafter, the remaining defendants served on
Sims a demand for production of, inter alia, "[a]ll psychiatric
records of [Sims] since [Sims's] incarceration in 1993."
(Defendants' Request for Documents, dated October 23, 2001, at 2.)
The demand attached a document for Sims's signature to authorize the
State's Office of Mental Health ( "OMH") to release

any and all records or documents of any kind in
[OMH's] possession pertaining to Nathaniel Sims,
including but not limited to all medical,
psychological and psychiatric reports and records,
hospitalization records, doctors' notes, nurses'
notes, correspondence, x-rays, charts and diagrams,
laboratory and pathological reports and tests, and
documents of any kind concerning examination and
analyses, surgical and non-surgical procedures,
diagnosis and prognosis, history and statements,
bills and charges.

(Id., Attachment.)

Sims, through his new attorneys, objected to the document
request on the ground that the records requested were protected by
the psychotherapist-patient privilege. The magistrate judge to whom
the case was assigned for supervision of pretrial proceedings
initially granted defendants' request, ruling as follows:

The Defendants are entitled to production of the
Plaintiff's psychiatric treatment records. Although
courts differ as to whether the assertion of a
"garden variety" emotional distress claim requires a
waiver of the psychiatrist-patient privilege, the
Plaintiff's claim that he has become frightened of
all knives as a result of the Defendants' alleged
misconduct is not, in my judgment, such a "garden
variety" claim.

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Magistrate Judge's Order dated January 2, 2002 ( "First M.J. Order") .
Sims's attorneys promptly moved for reconsideration of the
magistrate judge's order, stating that Sims had not intended to
place his mental or emotional state in issue, and stating, "we
hereby withdraw any claim Mr. Sims may have asserted to recover for
'non-garden variety' emotional distress injuries, including
'Plaintiff's claim that he has become frightened of all knives as a
result of the Defendants' alleged misconduct.'" (Letter from
Jeffrey B. Korn to Magistrate Judge Frank Maas dated January 7, 2002
( "Korn Letter"), at 1 (quoting First M.J. Order). ) The letter
elaborated:

In Jaffee v. Redmond, the Supreme Court held
that "confidential communications between a licensed
psychotherapist and her patients in the course of
diagnosis or treatment are protected from compelled
disclosure under Rule 501 of the Federal Rules of
Evidence". 518 U.S. 1 (1996). This privilege may
be waived only where a party places his mental or
emotional condition "at issue" by relying upon "the
condition as an element of his claim or defense". 3
Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence $ 504.01 (2d ed. 1997). Here,
however, Mr. Sims never intended to place his mental
or emotional state "at issue", and that condition is
not an element of his Section 1983 claim. Indeed,
Defendants' sole basis for asserting otherwise is
Mr. Sims's undefended deposition testimony, elicited
by defense counsel when Mr. Sims was a pro se
litigant. At his deposition, Mr. Sims testified
truthfully -- and unguardedly -- as to the emotional
ramifications of the incident that is the subject of
this action. (See Sims Dep. at 55-56 (attached
hereto as Exhibit 1).) But Mr. Sims did not plead
in his complaint, or testify at his deposition, that
he was seeking to recover for those emotional
injuries -- i.e., he did not put them at issue for
purposes of this litigation. (See Complaint, filed
Feb. 15, 2000 (attached hereto as Exhibit 2); Sims
Dep. at 55-56.)

In order to clarify the issue, we hereby

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withdraw any claim Mr. Sims may have asserted
regarding "non-garden variety" emotional distress
injuries. Mr. Sims will not offer any evidence or
make any argument at trial about those injuries, and
will not seek any recovery for them. In light of
this representation, there is no longer any basis
for a finding of waiver.

(Korn Letter at 1 (emphasis in original) .)

After reviewing this request and the response from defense
counsel, the magistrate judge reversed his previous ruling, stating:

To the extent that Mr. Sims intends to testify
generally that he was upset as a result of an
assault, I consider his claim "garden variety" and
not one which would warrant the broad disclosure
sought by the defendants. If, on the other hand, he
will seek to recover damages for some generalized
fear that he had prior to the assault, the
psychiatric records must be disclosed. Finally, the
defendants do not need the psychiatric records to
establish whether Mr. Sims was sent to the PSU for
"security reasons." If that were the case, some
evidence of it surely would exist outside his
psychiatric file.

Magistrate Judge's Order dated January 10, 2002 ( "Revised M.J.
Order") (emphasis in original) .

## 3. The Order That Sims's Psychiatric Records Be Disclosed

On February 4, 2002, all of the remaining defendants
except Blot and Caraballo were dismissed from the action by
stipulation. Blot and Caraballo appealed the Revised M.J. Order to
the district judge, who requested further submissions as to the
effect of Sims's attorneys' claim-withdrawal representations on the
issue of waiver. In response, Sims's attorneys wrote:

[W]e do not intend to offer:

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· fact or expert testimony about a psychological
disorder;

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· evidence concerning conversations between Mr.
Sims and psychiatric personnel;

· evidence concerning Mr. Sims's housing in the
psychiatric satellite unit;

· evidence that Mr. Sims made a fear of the
Defendants known to mental health officials;

. evidence that Mr. Sims was placed behind
plexiglass, punched the plexiglass and as a
result was admitted to the psychiatric
satellite unit;

· evidence that Mr. Sims was transferred to the
psychiatric satellite unit after the incident
or that he was transferred there for security
rather than psychiatric reasons; or

· evidence that Mr. Sims's mental health status
affects his behavior.

In light of those clarifications, it is clear
that Mr. Sims does not seek to make his mental
condition an issue at trial. Stated simply, Mr.
Sims does not assert any claim or defense involving
his mental condition, nor does he intend to offer
any evidence concerning that condition. Rather, it
is Defendants that seek to make Mr. Sims's mental
health status an issue in this litigation in an
attempt to obtain evidence to impeach his
credibility at trial. However, as demonstrated in
our letters dated January 22 and 25, 2002, that is
insufficient to pierce Mr. Sims's psychiatrist-
patient privilege. See Jaffee v. Redmond, 518 U.S.
1, 17 (1996).

(Letter from Jeffrey B. Korn and Antony L. Ryan to District Judge
Loretta A. Preska dated February 11, 2002 ( "Korn/Ryan Letter"),
at 1.)

In an order dated February 15, 2002, the district judge
reversed the magistrate judge's January 10 denial of defendants'
request for production of Sims's psychiatric records. As set forth
more fully in Part II.B.2. below, the district judge ruled that
Sims's deposition testimony constituted a waiver of his

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psychotherapist-patient privilege, and that

[ Sims ] may not unring the bell. "Once he waives his
privilege . . . , a witness may not withdraw his
waiver to prevent matters which he has already gone
into from being explored in greater detail."

District Court Order dated February 15, 2002 ("2002 Disclosure
Order"), at 1 (quoting United States ex rel. Carthan v. Sheriff, 330
F.2d 100, 102 (2d Cir.), cert. denied, 379 U.S. 929 (1964)). The
district judge found that Sims had "testified freely as to
communications with mental health professionals and as to the
supposed circumstances of his placement in the PSU"; that he did so
"in an effort to support his claim and otherwise gain advantage in
this litigation"; and that "fairness requires that" Blot and
Caraballo "have access to plaintiff's mental health records for the
period from two years before the incident at issue through the
present" because otherwise Blot and Caraballo would be
"disadvantaged both specifically in their inability to, for example,
prove . . . that [Sims] was not [sic] placed in the PSU for
psychiatric reasons and generally in not being able to test [ Sims's]
credibility." 2002 Disclosure Order at 2.

## 4. The Dismissal for Lack of Exhaustion

Sims filed a petition in this Court for a writ of
mandamus, seeking reversal of the 2002 Disclosure Order. Before
that petition could be heard, Blot and Caraballo moved in the
district court for summary judgment dismissing Sims's action on the

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ground that he had failed to exhaust his administrative remedies as
required by 42 U.S.C. § 1997e (a). We held Sims's mandamus petition
in abeyance pending resolution of the motion to dismiss his action,
and that petition eventually became moot.

In August 2003, the district court dismissed the action,
without prejudice to renewal after proper exhaustion of all
available administrative remedies.

## B. The Present Action

In 2004, Sims filed the present § 1983 action, represented
by his appointed counsel, against Blot and Caraballo based on the
same allegations as in the original action. Sims's complaint, as
amended in May 2005 following complete exhaustion of his
administrative remedies ( "Amended Complaint" ), alleges that Blot and
Caraballo used excessive force against Sims in violation of his
rights under the Eighth Amendment, by assaulting him "without
provocation" (Amended Complaint 1 14), "intentionally and without
justification" (id. 1 57). The Amended Complaint alleges that, as
a result of respondents' cruel and unusual punishment, Sims
"suffered serious and painful physical injuries, which required
emergency medical attention." (Id. 1 58.)

Blot and Caraballo asked the district court to renew the
2002 Disclosure Order, entered in the original action, requiring
Sims to disclose his mental health records. Blot and Caraballo
maintained that Sims's complaint and deposition testimony waived his
psychotherapist-patient privilege. They contended that

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the application of the privilege will deny
defendants information vital to their defense.
Specifically, defendants contend that [Sims], who
has been under the care of the Office of Mental
Health for years, did not ever express any fear of
the defendants, but rather suffers from a mental
illness which may affect his perception.
Significantly, [Sims's] medical records reveal that
in the past he has been suicidal and threatening,
and has engaged in self-harm.

(Letter from AAG Rebecca Ann Durden to District Judge Loretta A.
Preska dated June 23, 2005, at 2 (emphases added).) Blot and
Caraballo also argued that disclosure should be ordered on the
grounds that "the mental health records" were needed to allow
defendants to rebut Sims's testimony that he was returned to the PSU
"because he was told that officers could not keep him safe from the
defendants" (id. at 3), and that "[t]o the extent that [ Sims]
intends to argue at trial that he was not the aggressor, defendants
should be permitted to provide the jury with evidence as to his
state of mind at the time of, before and after the incident" (id. at
5). In response, Sims reiterated his prior representation that he
would not offer any evidence at trial with respect to his mental
state.

Respondents' motion for renewal of the 2002 Disclosure
Order was argued at an unrecorded conference with the district judge
on October 28, 2005. Both sides' briefs on appeal provide (without
contradiction from the other side) some insight into what transpired
at that conference. By the time of the conference, respondents had
taken the deposition of an expert forensic pathologist who had been
retained by Sims -- apparently the only expert he retained -- to give an
opinion as to Sims's physical condition before and immediately after

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the altercation.

[A]t the October 28, 2005 oral argument, Respondents
argued for a waiver based on Sims's pleadings and
testimony, as well as the testimony of his expert
that Sims's "memory of pain" and emotional state at
the time affect the expert's opinion that Sims was
unlikely (but not unable) to have started the
altercation.

(Respondents' brief on appeal at 4 (emphasis in original) . ) The
district judge indicated that she would grant respondents' motion,
stating that Sims "had placed his psychiatric history at issue by
relying on evidence that he suffered from a pre-existing physical
condition to support his claim that he was attacked by Officer
Blot." (Sims brief on appeal at 15 (emphasis in original) . ) The
court explained that Sims had forfeited his psychotherapist-patient
privilege by claiming that the attack on him was unprovoked, since
Sims's "psychiatric records might show that he had masochistic or
suicidal tendencies undermining his claim." (Id.)

In a brief order dated February 2006, without issuing a
new written explanation, the district court granted respondents'
motion for renewal of the 2002 Disclosure Order, stating as follows:

IT IS HEREBY ORDERED that the New York State
Office of Mental Health release to Rebecca Ann
Durden, Assistant Attorney General, or her
designated representative, . . . the complete mental
health record for Nathaniel Sims . . . for the
period December 20, 1997 to and including January
20, 2000.

District Court Order dated February 1, 2006 ( "February 2006
Disclosure Order"). The present petition for mandamus followed.

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In his petition for mandamus, Sims contends that the
district court erred in ruling that he has waived his
psychotherapist-patient privilege; he argues that he has not put his
mental health in issue by alleging that corrections officers
attacked him physically or by responding to questions in a
deposition at which he was unable to be represented by counsel.
Respondents contend (1) that the petition should be dismissed
because the February 2006 Disclosure Order is an ordinary discovery
order that does not involve "any recurring issue" (respondents'
brief on appeal at 6) and hence is not reviewable by mandamus, and
(2) that, in any event, the ruling that Sims has waived his
privilege is correct because Sims put his mental state in issue by
(a) alleging in his complaint that respondents assaulted him without
provocation, (b) testifying at his deposition in a manner that,
explicitly or implicitly, implicated his mental state at the time of
the altercation and claimed emotional damage, and (c) retaining an
expert to testify that it is unlikely that Sims would have been the
aggressor in the altercation. Respondents also argue that any
person seeking damages for injuries that include, or might include,
pain and suffering waives the psychotherapist-patient privilege.
For the reasons that follow, we conclude that mandamus is
appropriate and that the disclosure order should be reversed.

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## A. Availability of Mandamus Review

The principles governing the availability of mandamus as
an avenue for review of orders relating to pretrial discovery are

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well established.

Although mandamus is generally unavailable as a
means of reviewing district court discovery orders,
the writ is appropriate to review discovery orders
that involve privilege where (i) the petition raises
an issue of importance and of first impression; (ii)
the petitioner's privilege will be lost if review
must await final judgment; and (iii) immediate
resolution will avoid the development of discovery
practices or doctrine undermining the privilege.

In re Long Island Lighting Co., 129 F.3d 268, 270 (2d Cir. 1997)
( "LILCO" ) ; see, e.g., In re County of Erie, 473 F. 3d 413, 416-17 (2d
Cir. 2007). The first of these factors, although usually absent
where the contention is merely that there was an "incorrect
application of a well-developed principle, " LILCO, 129 F.3d at 271
(discussing In re W.R. Grace & Co., 984 F.2d 587, 589 (2d Cir.
1993) ), is present when the case instead involves "the extension of
an established principle to an entirely new context," LILCO, 129
F.3d at 271 (discussing In re von Bulow, 828 F.2d 94, 97 (2d Cir.
1987)).

The second factor -- loss of the petitioner's privilege if
review must await final judgment -- is normally present when the
privilege is meant to protect the confidentiality of a communication
(as contrasted, for example, with the privilege against self-
incrimination), for "a remedy after final judgment cannot unsay the
confidential information that has been revealed
In re von
Bulow, 828 F.2d at 99; see, e.g., LILCO, 129 F.3d at 271. The third
factor -- the need to prevent the development of discovery practices
that will undermine the privilege -- is present where there is
"potentially broad applicability and influence of the privilege

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ruling under attack," LILCO, 129 F.3d at 271, thereby creating
uncertainty as to whether a privileged communication will be
protected. "An uncertain privilege -- or one which purports to be
certain, but results in widely varying applications by the courts --
is little better than no privilege." In re von Bulow, 828 F.2d at
100.

Sims's petition presents all of these factors. First,
this Court has yet to address the issue of waiver or forfeiture in
the context of the psychotherapist-patient privilege; nor have we
addressed the degree to which a court should hold a pro se litigant,
who is reluctantly proceeding without counsel, to have irretrievably
waived that privilege in responding to questions at a deposition.
Second, respondents do not dispute, and there is no question, that
Sims's privilege of confidentiality will have been lost if review
must await a final judgment, prior to which his communications to
his psychotherapists are disclosed.

Finally, Sims's petition raises the novel and far-reaching
question of whether a plaintiff's claim for injuries that include
only the garden-variety emotional injury that would ordinarily
result from a physical assault, constitutes a forfeiture of his
psychotherapist-patient privilege. See Koch v. Cox, 489 F.3d 384,
390 (D.C. Cir. 2007) (distinguishing "garden variety" emotional
distress from "any specific psychiatric injury or disorder, or
unusually severe distress" (internal quotation marks omitted) ). As
discussed in Part II.B. below, the Supreme Court in Jaffee v.
Redmond, 518 U.S. 1 (1996), made clear that "if the purpose of the

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[psychotherapist-patient] privilege is to be served, th
the
participants in the confidential conversation must be able to
predict with some degree of certainty whether particular discussions
will be protected, " id. at 18 (internal quotation marks omitted) .
The rationales advanced by respondents in support of the district
court's February 2006 Disclosure Order, if accepted, demonstrate
that the confidentiality of psychotherapist-patient communications
would be uncertain -- if not extinguished -- in a great number of cases.

For example, respondents contend that a plaintiff's
allegation that an assault on him was unprovoked -- or apparently even
a nonspecific statement by the plaintiff or a witness "to the
effect" that the assault was unprovoked -- places the plaintiff's
mental state in issue and forfeits his privilege. (Respondents'
brief on appeal at 6 (emphasis added); see also id. at 20-22.) This
rationale for disclosure could affect virtually every case in which
an assault, or the use of excessive force, is alleged. Respondents
also ask us to uphold the disclosure order on the theory that
"anybody who asks for [damages for] pain and suffering has waived
the psychiatric privilege[ . ]" (Transcript of oral argument of this
appeal ("Oral Arg. Tr. ") at 19-20. ) They take the position that "if
anybody asks for pain and suffering damages, [the defendants] are
entitled to the[ plaintiff's] psychiatric records because the
psychiatric records might conceivably disprove the experiencing of
the pain and suffering[. ]" (Id. at 19 (emphases added) . ) They
further contend that a plaintiff places his mental health in issue
by asserting a claim of "unspecified damages [that may] include[ ]

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some sort of mental injury" (respondents' brief on appeal at 21
(emphasis added) ), and that this Court "should find that even a
claim of 'garden variety' injury waives the psychotherapist-patient
privilege" (id. at 42; see also id. at 43 ( "Whether the alleged
injury is specific or general, unusual, or 'garden variety,'
privilege is waived and the defendant is entitled to discovery about
whether and to what extent the injury exists and about what, if
anything, caused it.")). The breadth of respondents' proposed
rationales is obvious.

Moreover, respondents argue that disclosure of Sims's
mental health records is necessary so that the jury may have
evidence as to "Sims's state of mind" in order to "evaluate whether
[Sing Sing] staff members acted reasonably and in good faith"
(respondents' brief on appeal at 21) (brackets in original)
(internal quotation marks omitted) (emphases added). Leaving aside
the mental gymnastics needed to justify the leap from the mental
state of Sims to the mental state of respondents, it would appear
that this proposed justification for the forfeiture of a plaintiff's
psychotherapist-patient privilege could be asserted whenever a
defendant wished to interpose a defense of good faith.

In sum, despite respondents' suggestion that the present
petition "will not resolve any recurring issue" (respondents' brief
on appeal at 6), their own contentions are of such breadth as to
make it clear that immediate review is needed in order to prevent a
proliferation of discovery rulings that could eviscerate the
effectiveness of the psychotherapist-patient privilege. We conclude

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that mandamus review is appropriate.

## B. The Psychotherapist-Patient Privilege

In 1996, the Supreme Court made clear that the federal
courts are required to recognize that confidential communications
between a licensed psychotherapist -- including a licensed social
worker engaged in psychotherapy -- and his or her patients in the
course of diagnosis or treatment are protected from compelled
disclosure under Rule 501 of the Federal Rules of Evidence, see
Jaffee, 518 U.S. at 15. The Court noted that "[t]he psychotherapist
privilege serves the public interest by facilitating the provision
of appropriate treatment for individuals suffering the effects of a
mental or emotional problem. The mental health of our citizenry, no
less than its physical health, is a public good of transcendent
importance." Id. at 11. The Court concluded that the privilege
thus "promotes sufficiently important interests to outweigh the need
for probative evidence," id. at 9-10 (internal quotation marks
omitted), i.e., that it "serve[s] a public good transcending the
normally predominant principle of utilizing all rational means for
ascertaining truth, " id. at 15 (internal quotation marks omitted) .
The Court reasoned that strict confidentiality is required
because

[l]ike the spousal and attorney-client
privileges, the psychotherapist-patient privilege is
rooted in the imperative need for confidence and
trust. . . . 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

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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 (internal quotation marks omitted) (emphases added). The
Court observed that psychiatrists' ability to help their patients

is completely dependent upon [the patients' ]
willingness and ability to talk freely. This makes
it difficult if not impossible for [a psychiatrist]
to function without being able to assure . . .
patients of confidentiality and, indeed, privileged
communication. Where there may be exceptions to
this general rule . . . , there is wide agreement
that confidentiality is a sine qua non for
successful psychiatric treatment.

Id. (internal quotation marks omitted) .

Further, as confidentiality is a sine qua non, the Jaffee
Court refused to endorse the proposition that a court could subject
a claim of psychotherapist-patient privilege to a balancing test,
see id. at 17, and deny protection if it found "in the interests of
justice, [that] the evidentiary need for the disclosure of the
contents of a patient's counseling sessions outweighs that patient's
privacy interests, " id. at 7 (internal quotation marks omitted) .
Rejecting such a "balancing component of the privilege, " the Supreme
Court stated that

[m]aking the promise of confidentiality contingent
upon a trial judge's later evaluation of the
relative importance of the patient's interest in
privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the
privilege. . . . [I]f the purpose of the privilege
is to be served, the participants in the
confidential conversation "must be able to predict
with some degree of certainty whether particular
discussions will be protected. An uncertain

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privilege, or one which purports to be certain but
results in widely varying applications by the
courts, is little better than no privilege at all."

Id. at 17-18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393
(1981) ) (emphasis added) .

## 1. Waiver and Forfeiture Principles

Despite ruling that the psychotherapist-patient privilege
should be accorded strict protection, the Jaffee Court noted that
"[l]ike other testimonial privileges, the patient may of course
waive the protection." 518 U.S. at 15 n. 14. Waiver of a privilege
may be either express or implied, see, e.g., John Doe Co. v. United
States, 350 F.3d 299, 302 (2d Cir. 2003) ( "Doe Co."), and a district
court's finding that a party has waived a privilege is reviewed
under the abuse-of-discretion standard, see, e.g., In re von Bulow,
828 F.2d at 101. A district court has "abuse[d] its discretion if
it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, " Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990), or rendered a decision that "cannot
be located within the range of permissible decisions, " Zervos v.
Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).

In dealing with testimonial privileges other than the
psychotherapist-patient privilege, we have held that a waiver may be
implied in circumstances where it is called for in the interests of
fairness. "[F]airness considerations arise when the party attempts
to use the privilege both as 'a shield and a sword. '" In re Grand
Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000) ("In re Grand

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Jury") (quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d
Cir.) ("Bilzerian"), cert. denied, 502 U.S. 813 (1991), and In re
von Bulow, 828 F.2d at 103). "The quintessential example is the
defendant who asserts an advice-of-counsel defense and is thereby
deemed to have waived his [attorney-client] privilege with respect
to the advice that he received." In re Grand Jury, 219 F.3d at
182-83 (internal quotation marks omitted). Or the holder of the
privilege may "assert[] a claim that in fairness requires
examination of protected communications." Bilzerian, 926 F.2d at
1292; see also United States v. Nobles, 422 U.S. 225, 239-40 (1975)
(litigant may not both present the trial testimony of an
investigator as to statements he obtained from witnesses and refuse,
on the ground of work-product privilege, to produce relevant
portions of the investigator's report for use in cross-examining
him). "In other words, a party cannot partially disclose privileged
communications or affirmatively rely on privileged communications to
support its claim or defense and then shield the underlying
communications from scrutiny by the opposing party." In re Grand
Jury, 219 F.3d at 182 (emphasis added) .

"' [W]hether fairness requires disclosure . . . is best
decided on a case by case basis, and depends primarily on the
specific context in which the privilege is asserted. '" Doe Co., 350
F.3d at 302 (quoting In re Grand Jury, 219 F.3d at 183). For
example, we look to see whether the privilege holder took
"affirmative steps to inject privileged materials into the
litigation." Id. at 187. In addition, the venue of the privilege

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holder's statements may be material, for the fairness inquiry
focuses on whether there is a "risk that some independent
decisionmaker will accept [the privilege-holder's] representations
without the [adversary's] having adequate opportunity to rebut
them. " Doe Co., 350 F.3d at 305. Thus, a defendant may forfeit his
attorney-client privilege with respect to certain materials "if [ he
gives] certain testimony at trial before the jury," id. at 304 n. 3
(emphasis in original) (discussing Nobles and Bilzerian); but he
does not forfeit it merely by asserting to his adversary that he
believes he has done nothing wrong, see, e.g., id. at 304; see also
id. at 302 (noting that where the holder made no representation,
express or implied, that he intended to surrender his privilege, the
applicable principle is perhaps more aptly termed "one of
forfeiture, rather than waiver"). The Supreme Court has noted that
"[p]arties may forfeit a privilege by exposing privileged evidence,
but do not forfeit one merely by taking a position that the evidence
might contradict." United States v. Salerno, 505 U.S. 317, 323
(1992) .

A further consideration in the fairness analysis is
whether the witness's testimony was given in the absence of counsel.
Thus, in In re Grand Jury, 219 F.3d at 186-87, we held that a
corporation's privilege was not necessarily lost by reason of the
grand jury testimony of a witness -- the corporation's founder, chief
executive officer, and controlling shareholder -- who was uncounseled
in the grand jury room and had no legal training.

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We also note that in other contexts, a "party appearing

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without counsel is afforded extra leeway in meeting the procedural
rules governing litigation," and that district judges should "make
some effort to protect a party so appearing from waiving a right
because of his or her lack of legal knowledge." Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). To give such
"extra leeway," courts are, for example, to construe a pro se
litigant's pleadings and motions liberally, see Haines v. Kerner,
404 U.S. 519, 520 (1972), and to allow amendments to a pro se
litigant's pleadings more freely, see Holmes v. Goldin, 615 F.2d 83,
85 (2d Cir. 1980); courts should not allow a pro se litigant's
rights to "be impaired by harsh application of technical rules,"
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

This Court has not previously addressed questions as to
whether a plaintiff asserting a civil rights claim forfeits his
psychotherapist-patient privilege by reason of allegations in his
pleading or his answers to questions in discovery. We note that the
District of Columbia Circuit, presented with precisely these
questions in Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007) ( "Koch"),
has rejected broad claims of waiver.

In Koch, the plaintiff sued his employer, the Securities
and Exchange Commission ( "SEC"), for discrimination, retaliation,
and failure to accommodate his medical conditions; the SEC sought to
subpoena records and testimony from Koch's psychotherapist. A
magistrate judge ordered production, ruling that Koch had forfeited
his psychotherapist-privilege because (1) he had made a claim for
emotional distress damages, and (2) he had stated in answers to

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interrogatories that he suffered from depression and took medication
for that condition. Koch moved in the district court to withdraw
any claim for emotional distress damages, and he argued to the court
of appeals that in fact his "complaint d[id] not even contain a
claim of emotional distress." 489 F.3d at 388. The court of
appeals, on reviewing the complaint, found that Koch indeed had made
no such claim in his complaint. And it found that his interrogatory
answers as to depression "d[id] not clearly make an allegation of,
much less a claim to recovery for, emotional distress." Id. In
addition, the Koch Court found it "clear" that Koch had "abandoned
any claim the district court may have thought he made for damages
due to emotional stress." Id. Accordingly, the only question
before the court of appeals was whether a plaintiff -- who had in fact
made no claim for emotional distress and had expressly abandoned any
such claim -- had nevertheless irrevocably "put [ ] his mental state in
issue in such a way as to waive the psychotherapist-patient
privilege by acknowledging he suffer[ed] from depression." Id.
Analogizing to other testimonial privileges, "consistent
with the Supreme Court's analogy in Jaffee, " the Koch Court stated
that although a plaintiff waives his psychotherapist-patient
privilege if he "does the sort of thing that would waive the
attorney-client privilege, such as basing his claim upon the
psychotherapist's communications with him," id. at 391, or
"selectively disclos[ing] part of a privileged communication in
order to gain an advantage in litigation," id. (internal quotation
marks omitted), or "su[ing] the therapist for malpractice, " id. at

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389, he "does not put his mental state in issue merely by
acknowledging he suffers from depression, for which he is not
seeking recompense, " id. at 391 (emphasis added). The Koch Court
also ruled that the privilege is not overcome when the plaintiff's
mental state is put in issue only by the defendant. See id .; see

also id. at 390-91 (plaintiff's waiver of the privilege as to a
different doctor with respect to physical ailments did not put his
mental condition in issue or waive his psychotherapist-patient
privilege) . The Koch Court rejected the SEC's contention that "any
time it is possible, as a matter of medical science, that a
plaintiff's mental condition -- depression, anxiety, remorse, etc. --
may be a cause of his alleged physical condition, or even just
aggravate that condition, the plaintiff necessarily has put his
mental state in issue and thereby waived the psychotherapist-patient
privilege," stating that such a rule would "eviscerate the
privilege." Id. 389-90.

The Koch decision is consistent with the considerations
leading to our own decisions discussed above. In light of the
transcendent importance of the psychotherapist-patient privilege as
discussed in Jaffee, we agree with the Koch Court that a plaintiff
does not forfeit his psychotherapist-patient privilege merely by
asserting a claim for injuries that do not include emotional damage;
that a plaintiff does not forfeit that privilege by merely stating
that he suffers from a condition such as depression or anxiety for
which he does not seek damages; that a plaintiff may withdraw or
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forfeiting his psychotherapist-patient privilege; and that a party's
psychotherapist-patient privilege is not overcome when his mental
state is put in issue only by a another party.

## 2. Application of Forfeiture Principles to Sims's Claim

The running themes in respondents' request for Sims's
psychiatric records are their contentions (1) that "Sims's
complaint, his deposition testimony, and the deposition testimony of
his hired expert, [are] all to the effect that . . . he had suffered
serious emotional damages as a result of the assault" (respondents'
brief on appeal at 6 (emphasis added) ; see, e.g., id. at 3, 28-29) ;
(2) that even a request for only garden-variety damages waives the
psychotherapist-patient privilege "because the psychiatric records
might conceivably disprove the experiencing of the pain and
suffering" (Oral Arg. Tr. 19 (emphasis added) ; see also respondents'
brief on appeal at 42-43); and (3) that Sims's psychiatric records
may be used to show that Sims, rather than Blot, started the
December 20 altercation, i.e., that "Sims's mental state is and
always has been at the heart of this case" (respondents' brief on
appeal at 11) in which "[t]he principal issue at trial will be
whether Sims first physically attacked officer Blot or vice-versa"
(respondents' letter brief on appeal, dated February 15, 2008,
at 1).

The district court appears to have accepted these
arguments. The February 2006 Disclosure Order that granted
respondents' motion for a renewal of the 2002 Disclosure Order was

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not accompanied by a new written explanation, and we assume that the
district judge's reasons for granting disclosure were those she
expressed in the 2002 Disclosure Order, as well as those she is
described by the parties as having stated at the unrecorded October
28, 2005 oral argument of the renewal motion. In ordering
disclosure in 2002, the district judge stated, in pertinent part, as
follows :

[P]laintiff argues that his withdrawal of his non-
garden variety claims for emotional damages and his
undertaking not to testify to his fear of defendants
or that he was placed in the PSU for security
reasons makes contrary material in his mental health
records inadmissible. That information may be
inadmissible at trial, however, does not preclude
its discovery. Fed. R. Civ. P. 26(b) (1). More
importantly, however, plaintiff may not unring the
bell. "Once he waives his privilege . . . , a
witness may not withdraw his waiver to prevent
matters which he has already gone into from being
explored in greater detail. " United States [ex rel.
Carthan] v. Sheriff, 330 F.2d 100, 102 (2d Cir.
1964) (citing Brown v. United States, 356 U.S. 148
(1958) ) . . ..

Here, plaintiff testified freely as to
communications with mental health professionals and
as to the supposed circumstances of his placement in
the PSU in an effort to support his claim and
otherwise gain advantage in this litigation.
Defendants, on the other hand, are disadvantaged
both specifically in their inability to, for
example, prove the negative that plaintiff was not
[sic] placed in the PSU for psychiatric reasons and
generally in not being able to test plaintiff's
credibility based on what is apparently not an
insubstantial mental health issue. See Chnapkova v.
Koh, 985 F.2d 79, 82 (2d Cir. 1993). Accordingly,
fairness requires that defendants have access to
plaintiff's mental health records for the period
from two years before the incident at issue through
the present.

2002 Disclosure Order at 1-2 (emphases added). And at the October
2005 oral argument of the renewal motion, the district judge

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apparently indicated that Sims had forfeited his psychotherapist-
patient privilege for the additional reasons (a) that he "had placed
his psychiatric history at issue by relying on evidence that he
suffered from a pre-existing physical condition to support his claim
that he was attacked by Officer Blot," and (b) that Sims claimed
that Blot's attack on him was unprovoked, which might be undermined
because Sims's "psychiatric records might show that he had
masochistic or suicidal tendencies." (Sims brief on appeal at 15
(emphasis in original) . )

We note first that the record in no way justifies
acceptance of respondents' contentions that Sims's complaint, his
deposition testimony, and the deposition testimony of his expert
witness assert that Sims "suffered serious emotional damages as a
result of the assault" (respondents' brief on appeal at 6). The
original complaint filed by Sims, described in Part I.A. above,
describes as his injuries only shoulder pain and a laceration over
his eye; Sims's current complaint alleges that Sims "suffered
serious and painful physical injuries, which required emergency
medical attention" (Amended Complaint 1 58 (emphasis added) ) ; but
neither complaint so much as mentions emotional injury. Nor do we
see that Sims suggested that he was asserting a claim for emotional
injury, serious or otherwise, in his deposition testimony. As
quoted in Part I.A.1. above, Sims testified that he thinks and
dreams about the assault and that he becomes anxious at the sight of
a corrections officer holding a knife. But he testified, "I
wouldn't say I suffered mental injuries as a result of this" (Sims

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Dep. 55); he testified that he was not receiving any treatment for
emotional injury related to the events underlying this litigation
(see id. at 55-56); and nowhere did he state that he was seeking
damages for mental or emotional injuries. Finally, as to Sims's
expert's deposition, respondents have provided us with no page
citation to support their contention that his testimony includes the
opinion that Sims suffered serious emotional damages as a result of
the assault; and in our own review of that deposition, we have seen
no testimony as to any emotional consequences at all, much less as
to any "serious" emotional injury.

In addition, for the reasons that follow, we conclude that
the district court's 2002 Disclosure Order and the rationales stated
at the 2005 oral argument of the renewal motion were based on
erroneous views of the law and did not properly apply the privilege-
forfeiture principles discussed in Part II.B.1. above.

a. The Legal Framework of the District Court's Ruling

In reaching its conclusion that Sims's mental health
records should be disclosed because Sims "may not unring the bell,"
2002 Disclosure Order at 1, the court quoted United States ex rel.
Carthan v. Sheriff ( "Carthan") for the proposition that "Jolnce he
waives his privilege
a witness may not withdraw his waiver
to prevent matters which he has already gone into from being
explored in greater detail," 330 F.2d at 102 (emphasis ours). The
context in which the Carthan statement was made, however, was
materially different from the circumstances here.

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To begin with, Carthan was not a plaintiff in a civil case
in which he could withdraw a claim; he was a witness in a grand jury
investigation over which he had no control. Further, he was a New
York City employee who was required, by the City Charter, "to waive
his privilege against self-incrimination with respect to city
affairs" if he wished to retain his position and his eligibility for
any other city employment; and he in fact "executed a Limited Waiver
of Immunity." 330 F. 2d at 101. In addition, Carthan had proceeded
to disclose financial information for certain years by answering
grand jury questionnaires. When he thereafter, invoking the
privilege against self-incrimination, resisted compliance with a
grand jury subpoena for his income tax returns for those years and
was held in contempt, we refused to disturb the contempt ruling
because he had knowingly waived his privilege. This was the context
of the statement that Carthan could not "withdraw his waiver, " id.
at 102.

The circumstances of the present case are far different.
For example, nothing in the record here suggests that Sims made a
knowing election to waive his psychotherapist-patient privilege.
Sims requested and was denied assignment of counsel, and nothing has
been called to our attention to indicate that he was even aware that
he had such a privilege and was entitled to maintain the
confidentiality of his psychiatric communications.

Further, unlike a grand jury witness who has no say over
the issues in the proceeding, Sims, as a plaintiff in a civil case,
was entitled not to pursue a claim he had asserted. Indeed, Sims's

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attorneys stated that "Sims never intended to place his mental or
emotional state 'at issue', and that condition is not an element of
his Section 1983 claim." (Korn Letter at 1.) And as discussed
above, there is in fact no mention in either Sims's original
complaint or his Amended Complaint of emotional distress. But in
any event, especially given that Sims commenced the action pro se,
his subsequent counseled express disavowal of any claim for unusual
emotional distress -- whether such a claim was actually asserted or
was merely imputed to him by respondents -- should have been given
effect.

Finally as to Carthan, as discussed in Part II.B.2.c.
below, a disclosure made to the grand jury is materially different
in impact from a disclosure made to a party opponent in a
deposition. A grand jury uses the information it receives in order
to decide whether or not a criminal proceeding will be commenced.
Deposition testimony in a civil action, on the other hand, might
never come to the attention of any decisionmaker. For all of these
reasons, Carthan's ruling that the grand jury witness could not
withdraw his waiver of the privilege against self-incrimination
bears little relationship to this civil-action plaintiff's
withdrawal of a claim.

In addition, the district court in the present case cited
Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993), in support of its
view that Sims's psychiatric records should be disclosed in order to
avoid respondents' being "disadvantaged . . . specifically in their
inability to, for example, prove" the reason for Sims's return to

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the PSU, and "disadvantaged . . . generally" if they are unable to
use those records "to test [his] credibility," 2002 Disclosure Order
at 2. Chnapkova, however, which concerned admissibility of a
plaintiff's psychiatric records at trial, did not analyze -- or even
mention -- privilege and did not involve an issue of privilege waiver
or forfeiture. Rather, its focus was solely on the probative value
of the records. The trial in Chnapkova took place prior to this
Court's first recognition of the psychotherapist-patient privilege,
see In re Doe (Diamond), 964 F.2d 1325, 1328 (2d Cir. 1992), and the
Chnapkova trial judge excluded the plaintiff's psychiatric records
from evidence pursuant to Fed. R. Evid. 403 on the ground that any
probative value they might have was outweighed by the danger of
unfair prejudice. This Court reversed, holding that the records
could be used because they would be sufficiently "probative of . . .
credibility, " id. at 81, and "certainly probative" of one of the
facts in issue, see id. at 82. Our conclusion in Chnapkova, which
was decided in 1993, that the prejudice resulting from disclosure of
psychiatric records could be outweighed by the probative value of
those records, was overtaken by the Supreme Court's 1996 decision in
Jaffee that the psychotherapist-patient privilege is not subject to
such a balancing test. As discussed above, Jaffee held that the
psychotherapist-patient privilege "promotes sufficiently important
interests to outweigh the need for probative evidence, " 518 U.S. at
9-10 (internal quotation marks omitted), and "transcend[s] the
normally predominant principle of utilizing all rational means for
ascertaining truth, " id. at 15 (internal quotation marks omitted) .

In sum, the district court's reliance on Chnapkova in the 2002
Disclosure Order for the proposition that Sims's psychiatric records
should be disclosed in order to allow respondents to prove certain
facts and to test Sims's credibility was misplaced, as that case did
not involve a claimed privilege forfeiture or entail the type of
fairness analysis that a determination as to forfeiture requires,
and instead utilized a balancing analysis that is now foreclosed by
Jaffee.

Nor does the district court's decision comport with Jaffee
based on the rationale stated in October 2005 that Sims's
psychiatric records should be disclosed, on account of his assertion
that the assault on him was unprovoked, because those records might
undermine that assertion by showing that he had masochistic or
suicidal tendencies. The possibility that a patient has such
tendencies is a far better reason to deny disclosure than to grant
it. "If the privilege were rejected, confidential conversations
between psychotherapists and their patients would surely be
chilled," Jaffee, 518 U.S. at 11-12, and the public interest in
securing psychiatric help for a patient who has suicidal tendencies
surely transcends the interest of an accused assailant who wishes to
suggest that the existence of such tendencies indicates that the
patient started the fight. The "suicidal tendencies" rationale
exceeded appropriate bounds of discretion.

Finally, while the district court recognized the
importance of fairness to the other side in considering whether
there should be a forfeiture of the privilege, we do not see that

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the court gave consideration to several components of fairness in
this context, which are discussed in Part II.B.1. Sims, who had
expressly withdrawn any claim of emotional distress injury (beyond
"garden variety" pain and suffering from physical injury) had not
attempted to "use the privilege both as 'a shield and a sword. '" In
re Grand Jury, 219 F.3d at 182. This case had nothing in common
with that of a "defendant who asserts an advice-of-counsel defense"
but then invokes the privilege in an effort to prevent the adversary
from discovering his communications with his counsel. Id. at 182-83
(internal quotation marks omitted). Nor was Sims "assert[ing] a
claim that in fairness requires examination of protected
communications." Bilzerian, 926 F.2d at 1292. Sims was not
"partially disclos [ing] privileged communications or affirmatively
rely[ing] on privileged communications to support [his] claim . . .
and then shield [ing] the underlying communications from scrutiny by
the opposing party. " In re Grand Jury, 219 F. 3d at 182. He did not
take "affirmative steps to inject privileged materials into the
litigation" while simultaneously trying to shield the privileged
communications from scrutiny by the adversary. Id. at 187. "The
unfairness courts have found which justified imposing involuntary
forfeiture [of a privilege] generally resulted from a party's
advancing a claim to a court or jury (or perhaps another type of
decision maker) while relying on its privilege to withhold from a
litigation adversary materials that the adversary might need to
effectively contest or impeach the claim." Doe Co., 350 F.3d at

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303. This case exhibited none of these characteristics.

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Further, in basing its waiver finding on the proposition
that at his deposition Sims "testified freely," 2002 Disclosure
Order at 2, about his communications with Del Santo, the district
court apparently gave no consideration to the fact that at that
deposition Sims was not represented by counsel, the court having
denied his request either for permission to provide discovery in
some other manner or for the appointment of counsel to represent
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him. While a party to a civil action of course has no
constitutional right to the assignment of counsel, see, e.g., United
States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981), cert. denied, 456
U.S. 916 (1982), and we intend no criticism of the district court
for not having appointed counsel for Sims sooner, it is nonetheless
relevant to the fairness analysis that the record does not indicate
that Sims was learned in the law and does indicate that when Sims
represented himself at his deposition it was not by his choice.

b. The View that Sims Used His Privilege as a Sword

Further, we cannot accept the district court's finding
that fairness required the disclosure of Sims's psychiatric records
on the basis that his testimony (a) as to his "communications with
mental health professionals and [b] as to the supposed circumstances
of his placement in the PSU" constituted "an effort to support his
claim and otherwise gain advantage in this litigation," 2002
Disclosure Order at 2. The finding with respect to Sims's
communications with mental health professionals would have been an
appropriate rationale for disclosure to Del Santo, the psychiatric

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nurse, if she were still a defendant in this action. Sims testified
that the reason he had sued Del Santo, who was not present at the
December 20 incident, was that he had told her he was repeatedly
threatened by two of the corrections officers and had asked her to
intercede with prison officials on his behalf (see Sims Dep. 62-64) ,
but that nothing had been done about his complaints. If the lack of
any curative response to those complaints were the basis of an
existing claim by Sims against Del Santo, Sims could properly have
been found to be using his confidential communications as a sword
and be prohibited from using his privilege as a shield.

But Del Santo was dismissed from this action in September
2001, prior to the defense request for Sims's psychiatric records,
and there were -- and are -- no assertions of this type with respect to
Blot and Caraballo. Further, Sims has represented that he will
offer no evidence at trial that he fears corrections officers or
that he ever communicated any fear of Blot and Caraballo to mental
health officials.

As to the finding that Sims sought to support his claim
and gain a litigation advantage by testifying "as to the supposed
circumstances of his placement in the PSU," it is not clear whether
the district court was referring to his placement in the PSU before
or after the December 20 incident, but it is difficult to see how
either placement supports -- or refutes -- Sims's claim so as to provide
a permissible rationale for disclosure of his mental health records.
The pre-altercation theory advanced by respondents, i.e., the
contention that Sims forfeited his psychotherapist-patient privilege

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by alleging in his original complaint that the altercation occurred
while he was on his way to SHU from the PSU, is baseless. There is
no dispute as to where the altercation occurred; there is no dispute
as to where Sims was coming from when the altercation occurred; and
the place from which Sims was coming sheds no light on any factual
issue to be tried in this case.

Similarly, to the extent that the district court instead
meant that respondents would be disadvantaged if they could not use
Sims's mental health records to show that Sims was returned to the
PSU for mental health reasons, rather than for security reasons, on
the day after the altercation, the court did not explain how the
reason for his return to the PSU would shed any light on who had
started the fight; and we see no connection. In any event, the
circumstances of Sims's return to the PSU after the altercation had
been withdrawn from the case by Sims's attorneys' representations in
2002 (see Korn/Ryan Letter at 1 ("we do not intend to offer . . .
evidence that Mr. Sims was transferred to the psychiatric satellite
unit after the incident or that he was transferred there for
security rather than psychiatric reasons") ) .

Nor does the deposition testimony of Sims's forensic
pathologist, Isidore Mihalakis, M.D., to which the court apparently
referred at the October 2005 oral argument of respondents' motion to
renew the 2002 Disclosure Order, provide a proper basis for finding
that Sims forfeited his psychotherapist-patient privilege. At that
deposition, Mihalakis gave his opinion that it was unlikely that
Sims was the aggressor in the December 20 incident (by moving in a

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sudden and violent manner as apparently described in a deposition
given by Blot) because Sims had a "memory of pain," associated with
such a movement, from a preexisting physical condition. (Deposition
of Isidore Mihalakis, M.D., October 4, 2005, at 40.) This testimony
does not justify a forfeiture of Sims's psychotherapist-patient
privilege for several reasons. First, Mihalakis's opinion concerned
the effects of a chronic condition that was not psychological but
physical. Second, Mihalakis is not a psychiatrist or a
psychologist; he would not be qualified to testify at trial as to
Sims's mental state. And third, Sims's attorneys had represented
that they would not offer at trial evidence that Sims's mental
health status affects his behavior. (See Korn/Ryan Letter at 1.)
In addition, clarifying that representation in response to this
Court's request at oral argument, Sims's attorneys have stated that
Mihalakis did not review any of Sims's mental health records, and
that Sims "will not offer any testimony from Dr. Mihalakis
concerning the effect of Mr. Sims' emotional state or 'memories of
pain' on his actions" (Sims letter brief on appeal, dated February
8, 2008, at 1). Given this record, the prospective testimony of the
pathologist provides no basis for finding that fairness demands
disclosure of Sims's psychiatric records to respondents.

In sum, we conclude that with respect to Sims's claims
against Blot and Caraballo, who are the only remaining defendants,
the district court erred in indicating that Sims essentially used
his privilege as a sword.

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c. The Disregard of Both the Procedural Context of Sims's
Statements and His Evidentiary and Claim Renunciations

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Finally, in finding that fairness required that
respondents be given access to Sims's mental health records, the
district court noted, but plainly gave no effect to, Sims's
attorneys' representations that Sims's mental or emotional state "is
not an element of his Section 1983 claim" (Korn Letter at 1) or
their representations, described in Parts I.A.2. and I.A.3. above,
that they would not offer evidence relating to his mental or
emotional state. While the court initially adverted to the claim
withdrawal and evidentiary renunciations, it did so only to state
that although they might make the information inadmissible at trial,
admissibility was not the test. See 2002 Disclosure Order at 1.
The court thereafter proceeded to assess the fairness issue,
however, as if the renounced evidence would in fact be admitted,
concluding, for example, as discussed above, that respondents would
be at a disadvantage because they would be unable to prove that Sims
was returned to the PSU after the December 20 incident for reasons
other than security. See id. at 2. But with no evidence to be
presented by Sims at trial as to this matter, the view that
respondents would be unfairly prejudiced by lacking access to the
privileged information that might "prove the negative," id., is
inexplicable.

These findings that respondents would be disadvantaged by
Sims's references to his privileged communications and his return to
the PSU -- and the ruling that Sims cannot "unring the bell" -- ignored
the procedural venue in which his statements were made. As

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discussed in Part II.B.1. above, the fairness inquiry focuses on
whether there is a risk that a "decisionmaker" will accept the
privilege-holder's statements without his opponent's having an
adequate opportunity to present rebutting evidence. See, e.g., Doe
Co., 350 F.3d at 305. In Carthan, for example, statements were made
to the grand jury, which was to decide whether, and against whom, to
return an indictment; the witness was not allowed to waive his
privilege against self-incrimination in order to make certain
statements, but then invoke the privilege to deny the grand jury
access to materials that would allow it to evaluate those
statements.

In the present case, in contrast, Sims's statements were
made only in a deposition, not before a decisionmaker or factfinder.
Given that Sims cannot introduce any of his own deposition testimony
at trial (unless, of course, respondents were to introduce some
portion of the deposition that Sims should be allowed to supplement
in the interest of completeness, see Fed. R. Civ. P. 32 (a) (6) ),
Sims's deposition testimony does not place respondents in a
disadvantageous position at trial. And since Sims made it clear
that he will not offer any evidence as to his mental health, or any
psychological disorder, or his fears, or any non-garden-variety
emotional distress resulting from the alleged assault, etc., we
conclude that it was not within the permissible limits of discretion
for the district court to conclude that respondents would be
prejudiced if Sims were not required to disclose his mental health
records.

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## d. Respondents' Alternative Arguments

The suggestions advanced by respondents as alternative
bases for upholding the order for disclosure of Sims's mental health
records fare no better. Their contention that "Sims's allegation of
the improper use of force raises the question of whether Sims, due
to uncontrolled aggression, a persecution complex, or some other
psychological problem, started the fight by attacking the correction
officers, in which case the Respondents would not be liable"
(respondents' brief on appeal at 21-22 (emphases added) ), provides
no basis for disclosure of Sims's psychiatric records. If Sims
started the fight by attacking respondents, respondents presumably
would not be liable for the injuries alleged here regardless of
whether or not Sims was motivated by such a mental condition.

Further, a privilege may be forfeited with respect to a
"claim or defense, " In re Grand Jury, 219 F.3d at 182 (emphasis
added). Thus, respondents' notion that a party forfeits his
psychotherapist-patient privilege simply because he alleges -- or even
implies -- that the attack on him was unprovoked is farther-reaching
than perhaps respondents envision. If that principle were adopted,
it would also be applicable to Blot and Caraballo, who contend that
it was Sims who started the fight without provocation from them. On
respondents' theory, in any assault or excessive-force case both the
plaintiffs and the defendants could be required to disclose their
respective mental health records. Disclosure, rather than
protection of confidentiality, would become the norm.

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Finally, we reject respondents' contentions that "anybody"

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who requests damages for "pain and suffering has waived the
psychiatric privilege" "because the psychiatric records might
conceivably disprove the experiencing of the pain and suffering"
(Oral Arg. Tr. 19), that any claim of "even . . . 'garden variety'
injury waives the psychotherapist-patient privilege" (respondents'
brief on appeal at 42), and that a plaintiff's mental health is
placed in issue whenever the plaintiff's claim for "unspecified
damages" may "include[ ] some sort of mental injury" (respondents'
brief on appeal at 21). In reality respondents simply seek to have
the privilege breached whenever there is a possibility that the
psychiatric records may be useful in testing the plaintiff's
credibility or may have some other probative value. To accept these
contentions would inject the balancing component that Jaffee
foreclosed, and would disregard the principle that "[p]arties
. . . do not forfeit [a privilege] merely by taking a position that
the evidence might contradict, " Salerno, 505 U.S. at 323. If this
principle were not the rule, then in virtually every case a
forfeiture might be found, as in virtually every case the party
opposing the privilege could argue that the psychological record
might reveal evidence that the party asserting the privilege is
testifying falsely.

# CONCLUSION

We have considered all of respondents' arguments on this

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appeal and have found them to be without merit. Given the
considerations discussed above, including

\- the importance of the psychotherapist-patient
privilege, and the Supreme Court's ruling in Jaffee that,
if not waived, that privilege is to be upheld without
being subjected to a balancing analysis in which the
privilege may be deemed outweighed by the need for
probative or impeaching evidence,

\- the district court's erroneous views that the cases it
cited supported a determination that Sims's
psychotherapist-patient privilege was forfeited, and

\- the district court's failure to consider such fairness
factors as

\- the absence of any allegation of emotional
injury in Sims's pleadings,

\- the fact that the only statements by Sims that
he suffered any emotional distress were made in his
deposition, at which he reluctantly appeared pro se,

\- the fact that even after respondents brought up
the subject of emotional injury and Sims testified
that he suffered recurring dreams and anxiety, he
did not assert any claim for recovery on that basis,

\- the fact that no part of Sims's deposition
testimony would be admitted in evidence at trial
unless respondents' own submissions require it, and

\- Sims's evidentiary renunciations and his
withdrawal of any claim to damages for mental injury
or any non-garden-variety emotional injury,

we conclude that the order requiring disclosure of Sims's mental
health records to respondents was beyond the permissible limits of
discretion.

The writ of mandamus is granted. The February 2006
Disclosure Order is reversed. We of course express no view as to
the merits of the case.

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August Term, 2007 Argued: January 16, 2008 Decided: July 18, 2008 Final brief… v. - MIKE J. BLOT, Correctional Officer, FRANCISCO CARABALLO, Correctional Officer

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