The opinion of the court was delivered by: Richard Seeborg United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL PALM PRINTS AND FINGER PRINTS
Plaintiffs Joseph Padgett and Darla Padgett ("Padgetts"), former residents of the City of Monte Sereno (the "City"), initiated this suit claiming, among other things, violation of their civil rights pursuant to 42 U.S.C. § 1983. The suit is essentially based upon allegations that the Padgetts were singled out for discriminatory treatment in the process of seeking a building permit for their home, and that City officials sent them a threatening letter demanding that they leave town.
The Padgetts now seek to compel City officials to submit fingerprints and palm prints, pursuant to Fed. R. Civ. P. 35, based on their contention that such evidence is necessary in order to identify the author of the threatening letter, and to determine whether City officials had knowledge of the letter. The motion was fully briefed and heard by the Court on July 13, 2005. Based on all papers filed to date, as well as on the oral argument of counsel, the Court grants in part and denies in part the motion, for the reasons set forth below.
Mrs. Padgett purchased property located at 17965 Saratoga-Los Gatos Road ("Padgett property") within the City in 1992. In February 1999, the Padgetts applied for a Site Development Permit so that they could build their "dream home" on the property. (Amended Complaint at p.3, line 9.) The City scheduled a hearing for March 3, 1999. In the interim, the City's then Mayor, Jack Lucas, "demanded" that the Padgetts meet with their neighbors, the Bruns, to discuss the Bruns' concerns that the building plans would interfere with their privacy. The Padgetts and the Bruns agreed that the existing fence between the two properties, which was over six feet tall and approved by the City in 1992 (the "Brun fence"), would be adequate to maintain privacy. On March 3, 1999, the City approved the Padgetts' Site Development Permit and the Padgetts proceeded with construction.
During construction, the Padgetts removed the Brun fence, and the Bruns installed a new bamboo fence that exceeded six feet in height. However, a dispute arose over the property line, the bamboo fence, and the removal of a tree. A separate dispute also arose between the Padgetts and their other neighbors, the Hunters, who claimed that they had an unrecorded easement through the Padgett property and objected to the relocation of utility lines servicing the Hunters' property. Together the Bruns and Hunters filed suit against the Padgetts in state court, which led to the imposition of an injunction against the Padgetts that prevented them from completing their construction work.
After those disputes arose, the City and the City Manager, Defendant Brian Loventhal ("Loventhal"), are alleged to have entered into a common plan to "persecute and harass" the Padgetts into conceding to the Bruns' demands. In December 1999, the City's building inspector sided with the Hunters and allegedly told Mr. Padgett, "Your project is over. I am red tagging your project." (Id. at p.6, line 2.) The City continued to side with the Hunters, and conditioned further City inspections under lawfully issued permits upon the Padgetts' concessions to the Hunters' demands.
In May 2001, the Padgetts and the new owners of the Brun property erected a new fence between their properties that was approximately the same size and height as the previous fence. (Loventhal Decl., p. 2, line 15, see Amended Compl., p. 4, line 22.) The City, however, insisted on enforcing an ordinance prohibiting fences over six feet tall. (Amended Compl., p. 8, line 12.)
In July 2001, Mrs. Padgett met with Mr. Loventhal, who assured her that as long he received documentation confirming that the state court injunction remained in place, the expiration of the Site Development Permit would not cause any problems. (Id. at line 19.) Mr. Padgett delivered copies of the injunction to Mr. Loventhal. Nevertheless, in October 2001, the Padgetts received notice that the Site Development Permit had expired, without ever having received the City's customary 30-day warning prior to expiration. (Id. at p. 9, line 7.) Mr. Loventhal told Mrs. Padgett he never received a copy of the injunction, and further that the Padgetts would have to pay approximately $1,200 to reinstate their permit. (Id. at line 18.) During the process of dealing with the City, the Padgetts appeared and spoke at numerous City Council meetings, distributed notices and fliers to other residents of the City, wrote numerous letters, and generally communicated with the public about what they perceived as unlawful and discriminatory actions. (Id. at line 17.)
In February 2003, the City filed a nuisance action against the Padgetts, alleging that they had an expired permit, failed to replace a tree, and maintained a fence over six feet in height. (Powell Decl., p. 1, line 24.) That suit is still pending. In December 2003, the City filed a criminal suit against Mrs. Padgett for violation of the City's fence ordinance. (Id. at p. 2, line 4; Amended Compl., p. 13, line 6.) In February 2004, defendants obtained a criminal search warrant, and entered the Padgetts' property, without notice, to inspect their fence. (Amended Compl., p. 14, line 1.)
In March 2004, defendants obtained a second search warrant as part of the civil case, to inspect the interior of the Padgetts' house. (Id. at line 9.) Later that month, the Padgetts attended a City Council meeting to complain that defendant Loventhal was singling them out for discriminatory treatment. (Id. at line 18.) A few days after the meeting, on March 19, 2004, the Padgetts received an offensive letter ("threatening letter") demanding that they leave town and threatening to expose Mr. Padgett's ten-year old misdemeanor conviction. (Padgett Decl., Exh. B.) An article ("Padgett article") from the San Jose Mercury News dated February 3, 1994 was included in the threatening letter. (Id. at p. 3.) In June 2004, believing City officials to have authored the threatening letter, the Padgetts filed this suit against Loventhal, the City, and other City officials.
After receiving the threatening letter, Mr. Padgett reported receipt of the threatening letter to the Los Gatos/Monte Sereno Police Department. (Padgett Decl., p. 4, line 6.) The threatening letter and envelope were submitted to the County of Santa Clara Crime Laboratory and the San Jose Police Department Central Identification Unit for analysis. The County Crime Lab processed the threatening letter and envelope and prepared a compact disc with 47 images lifted from the documents. (Reedy Decl., Exh. A, p. 2.) After analysis, the San Jose Police Department Central Identification Unit issued a report stating that it had not received palm prints and could not complete its examination until it had received Mr. Loventhal's palm prints. (Reedy Decl., Exh. B.) Based on the report, the Los Gatos/Monte Sereno Police Department subsequently claimed that the analysis did not match Mr. Loventhal's prints. (Reedy Supp. Decl., Exh. C, p. 2.)
Believing that Mr. Loventhal's palm prints were never provided to the Central Identification Unit, the Padgetts submitted the threatening letter along with the CD from the County Crime Lab to a private laboratory, Forensics Analytical. (Kaminski Decl., p. 2, lines 15-19.) They also submitted a water bottle that was allegedly used by Mr. Loventhal as well as a set of original letters and envelopes from Mr. Loventhal, including a letter dated January 30, 2004. (Id. at p. 2; see Padgett Decl., Exh. C.) Forensic Analytical identified the prints found by the County Crime Lab along with eight additional finger and palm prints. (Kaminski Decl., Exh. B, p.1.) Forensic Analytical also concluded that the prints found on the threatening letter match a print found on the January 30, 2004 letter. (Kaminski Decl., Exh. B, p. 3.) When compared to the Padgetts' prints, they were eliminated as a source of the prints. (Id.) Despite repeated requests, defendants refused ...