Morales v. Glastonbury et al
ORDER granting in part and denying in part 116 Motion for Protective Order. See attached Ruling. Signed by Judge Holly B. Fitzsimmons on 8/10/2011. (Garcia, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TOWN OF GLASTONBURY, TOWN OF
MANCHESTER, TOWN OF SOUTH
WINDSOR, THOMAS J. SWEENEY,
JAMES BERRY, COREY DAVIS,
DANIEL BONTEMPO,MARC HUGHES,
STEVEN KOSS, GARY T. TYLER,
CIV. NO. 3:09cv713 (JCH)
RULING ON DEFENDANT’S MOTION
FOR A PROTECTIVE ORDER [DOC. #116]
Pending before this Court is Defendant Officer Steven Koss’s
Motion for Protective Order. [doc. # 116]. The Court heard argument
on July 18, 2011. Upon careful consideration, the motion is DENIED IN
PART AND GRANTED IN PART.
This § 1983 case involves claims of excessive force against
certain police officers from the Glastonbury, Manchester and South
Windsor police departments; and of failure to screen, supervise
and/or train the officers against the Towns of Glastonbury,
Manchester and South Windsor and their respective police chiefs. In
addition, plaintiff brings common law claims of negligence,
recklessness, assault, battery, negligent infliction of emotional
distress and intentional infliction of emotional distress. The
operative complaint [doc. # 55] alleges that on the morning of
January 9, 2009, plaintiff was a passenger in a vehicle that was
surrounded by the defendant officers in Glastonbury. Plaintiff
alleges that the defendant officers had planned on making a
controlled purchase of drugs from the driver of the car, who was
taken into custody. Plaintiff claims that he was punched and kicked
in the face and head by the defendant police officers, causing him
serious injuries. Defendants deny plaintiff’s allegations of
wrongdoing. [doc. # 80]. Officer Koss is employed by the Manchester
STANDARD OF REVIEW
Parties may obtain discovery regarding any non-privileged matter
that is relevant to the subject matter involved in the pending
litigation. Fed.R.Civ.P. 26(b)(1). The information sought need not be
admissible at trial as long as the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Notwithstanding the breadth of the discovery rules, the district
courts are afforded discretion under Rule 26(c) to issue protective
orders limiting the scope of discovery. Dove v. Atlantic Capital
Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“[t]he grant and nature of
protection is singularly within the discretion of the district
court....”). When the party seeking the protective order demonstrates
good cause, the court “may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including ... that the disclosure or
discovery not be had.” Fed.R.Civ.P. 26(c)(1). “The party resisting
discovery bears the burden of showing why discovery should be
denied.” Chamberlain v. Farmington Sav. Bank, 247 F.R.D. 288, 289 (D.
Conn. Nov. 30, 2007) (citing Blankenship v. Hearst Corp., 519 F.2d
418, 429 (9th Cir. 1975)).
Defendant seeks a protective order with respect to three
categories of documents requested by plaintiff in Schedule A to the
Notice of defendant’s Deposition. First, all documents related to all
training or education defendant received prior to becoming a police
officer, including all documents he submitted to the Police
Department when applying for the position. Second, all civilian
complaints and internal affairs investigations, substantiated or
unsubstantiated and not limited to complaints of similar misconduct.
And, third, all documents related to policies, procedures, customs or
guidelines given to or made available to Officer Koss.
Specifically, defendant objects to requests numbers 1, 2, 4, 7,
8, 9, 10, and 11 in Schedule A.1 Plaintiff added at oral argument
that he seeks production of plaintiff’s entire personnel file, which
Request No. 4, seeking “A copy of all tangible materials
that relate to your investigation of the events described in this
lawsuit”, appears to have been resolved.
includes a psychological evaluation performed prior to Officer Koss’s
Defendant argues that there is good cause to deny
discovery because the requests are overbroad and seek irrelevant
information not reasonably calculated to lead to admissible evidence
with respect to plaintiff’s claims.
Employment Application Documents
Request No. 1 seeks,
A copy of your resume or curriculum vitae or other documents
submitted to the town prior to your appointment to the position
of police officer.
Request No. 2 seeks,
A copy of all training or education certificates, degrees or
other documents you received for the position of police officer.
Plaintiff argues that he is entitled to records regarding
Officer Koss’s employment application, including his resume, and
records of any training and education he received prior to his
appointment as a police officer. Defendant argues that these
documents have no bearing on plaintiff’s excessive force claim.
Plaintiff proffers that the requested documents could show a pattern
of misconduct prior to his appointment as police officer that would
be relevant to the failure to screen claim against the Town of
Manchester and its Chief. To prevail on a failure to screen claim,
plaintiff must prove that “adequate scrutiny of [the employee’s]
background would lead a reasonable policymaker to conclude that the
plainly obvious consequence of the decision to hire [him] would be
the deprivation of a third party's federally protected right....” Bd.
of Comm'rs of Bryan County, 520 U.S. at 411.
To the extent there are
documents in Officer Koss’s personnel file that he submitted to the
Town prior to his appointment that showed a propensity by Officer
Koss to use excessive force, those must either be produced or
submitted to the Court for in camera review. The motion for
protective order is GRANTED with respect to all other documents.
Civilian Complaints and Internal Affairs Investigations
Request No. 7 seeks,
A copy of each civilian complaint filed against you as a police
Request No. 8 seeks,
A copy of all Internal Affairs Division (IAD) or Civilian
Complaint Review Board (CCRB)reports or investigative documents
regarding your conduct as a police officer.
Officer Koss has agreed to produce any complaints or
investigations of conduct similar to that alleged, namely excessive
force, where there was a determination of culpability, prior to the
incident in question. All other complaints, defendant argues, are not
relevant to plaintiff’s claim of excessive force. Plaintiff counters
that he is entitled to all complaints, substantiated or not,
involving any conduct, arguing that these records are relevant to his
Whether plaintiff is entitled to complaints of all conduct is
well settled in this district. In a § 1983 civil rights action
“against the police, police internal investigations files are
discoverable when they involve allegations of similar misconduct.”
Session v. Rodriguez, No. 3:03cv943 (AWT) 2008 WL 2338123, at *2 (D.
Conn. June 4, 2008). See also Gibbs v. City of New York, No.
CV-06-5112 (ILG)(VVP), 2008 U.S. Dist. LEXIS 8111, 4-5, 2008 WL
314358 (E.D.N.Y. Feb. 4, 2008) (collecting cases). Further, courts
permit discovery of substantiated, unsubstantiated or even withdrawn
complaints, if relevant. Session, 2008 WL 2338123, at *2 (citing
Bradley v. City of New York, No. 04 Civ. 8411(RWS)(MHD), 2005 U.S.
Dist. LEXIS 22419 (S.D.N.Y. Oct. 3, 2005)(“courts have repeatedly
directed production of such complaints, whether substantiated or
unsubstantiated or even withdrawn”) (collecting cases)); Cox v.
McClellan, 174 F.R.D. 32, 35 (W.D.N.Y. 1997) (“the fact that a prior
complaint was determined to be unfounded does not bar its discovery.
Whether the incident resulted in a conviction, a dismissal, a
settlement or a lawsuit does not negate the existence of the
occurrence itself”); Unger v. Cohen, 125 F.R.D. 67, 70-71 (S.D.N.Y.
1989) (“Civilian complaints that were abandoned or conciliated may
not be admissible at trial, but that does not make them
undiscoverable.”) At this stage, despite their questionable
admissibility, the Court will permit discovery of civilian complaints
and internal affairs investigations regarding excessive force,
whether substantiated or not, prior to the date of the incident.2
Defendant’s counsel represented at oral argument that
there are no civilian complaints against Officer Koss made for
Training Materials and Policies
Request No. 9 seeks,
All documents given to you during your training or tenure as a
police officer that concern: (a) the law of arrest; (b) the law
for submitting affidavits in support of arrest warrants or
search warrants; (c) the use of force during an arrest; (d) the
responsibility of a police officer to prevent unlawful or
wrongful conduct of other police officers;(e) the constitutional
rights of citizens.
Request No. 10 seeks,
A copy of all policies, procedures, customs or guidelines
provided to you in connection with your position as a police
officer regarding the law of arrest, use of force during the
course of arrest, the determination of probable cause or
reasonable suspicion and the constitutional rights of citizens.
Request No. 11 seeks,
All documents or materials, distributed, made available, or
required to be read by you in connection with your employment as
a police officer, concerning the law of arrest, use of force in
making arrests, reasonable execution of a search warrant,
determination of probable cause or reasonable suspicion, or the
constitutional rights of citizens, including, but not limited
to, all police memoranda, documents, circulars, bulletins,
manuals and general orders.
As of the date of the hearing, Officer Koss had produced all
documents related to policies and training on the use of non-lethal
force, a summary of his training records, and all statements and
reports he filed. Defendant argues that anything beyond documents
related to excessive force, such as the law of arrest or execution of
search warrants, is overly broad and not likely to lead to admissible
excessive force. If this is the case, the representation shall be
confirmed in writing to plaintiff’s counsel.
evidence. Plaintiff counters that these policies and training
materials are relevant to the circumstances of his detention and the
subsequent alleged use of excessive force. All the claims asserted
against Officer Koss, including the common law claims, relate to the
alleged use of excessive force. And all claims against the Town and
Police Chief for failure to train and supervise focus on the use of
excessive force. There is no claim of false arrest, as plaintiff was
never arrested. As such, defendant has met his burden and discovery
is limited to training materials and policies related to the use of
Personnel File and Psychological Records
In his papers opposing defendant’s motion for protective order
and at oral argument, plaintiff pursues a request for Officer Koss’s
personnel file, including his psychological evaluation. Defendant
stresses that these documents are not within the scope of any of the
requests for production or the subpoena served on defendant. In
addition, defendant argues that the personnel file and psychological
records contain sensitive and confidential information that should be
protected from disclosure. Plaintiff argues that the personnel file,
including the psychological assessment, are relevant to his failure
to screen claim and that any confidentiality concerns can be
addressed by a confidentiality order.3
Defendant carries no burden to show good cause for a
protective order as he was never requested to produce these
“The locus of the line between discovery reasonably calculated
to lead to admissible evidence and the proverbial fishing expedition
is determined in large measure by the allegations of the pleading.”
Unger v. Cohen,
125 F.R.D. 67, 71 (S.D.N.Y. 1989). The only
allegation addressing the failure to screen claim, states:
27. These actual and/or de facto policies, practices, and
customs, include, but are not limited to the following:
a. the failure to properly screen [...]
[doc. # 55, Third Amended Complaint, ¶ 27].
Setting aside the issue of the sufficiency of plaintiff’s
failure to screen claim in light of Ashcroft v. Iqbal,129 S.Ct. 1937
(May 19, 2009), this allegation without more is insufficient to
compel production of a personnel file or a psychological evaluation.
Short of allowing plaintiff to pursue a fishing expedition, the
request for the entire personnel file, including the psychological
records, on the basis of the failure to screen claim is overbroad and
not likely to lead to admissible evidence. See Unger v. Cohen,
F.R.D. 67, 71 (S.D.N.Y. 1989) (“A police officer's mental health is
not placed in issue solely by virtue of allegations of excessive
force [...] The Complaint in this case includes no allegation
warranting discovery of medical records.”). Plaintiff’s request for
the entire personnel file and psychological records is DENIED on the
Accordingly, defendant’s Motion a Protective Order [doc. # 116]
is denied in part and granted in part. Defendant shall produce the
responsive documents and prior claims of excessive force within 30
days of this ruling. If defendant elects to have certain documents
reviewed by the Court in camera as permitted by the ruling, they
shall be submitted to the Court with 15 days of this ruling. This is
not a recommended ruling.
This is a discovery ruling and order which
is reviewable pursuant to the "clearly erroneous" statutory standard
28 U.S.C. § 636 (b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and
72(a); and Rule 2 of the Local Rules for United States Magistrate
As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 10th day of August 2011.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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