Rosenthal v. City of Worcester et al

Filing 90

District Judge Timothy S Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 77 Motion to continue impoundment. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
)
)
v.
)
)
CITY OF WORCESTER,
)
MICHAEL V. O’Brien, City Manager,
)
GARY GEMME, Chief of Police,
)
ERIC S. SPINELLI, JEFFREY P. CARLSON,
)
JOHN L. BOSSOLT, and JOHN DOES 1-3,
)
Defendants.
)
__________________________________________)
GEORGE ROSENTHAL,
Plaintiff,

CIV. ACT. NO. 11-40113-TSH

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO CONTINUE
IMPOUNDMENT, DESTROY OR RETURN CUSTODY TO DEFENDANTS
DOCUMENT NOS. 42, 43, 44 (Docket No. 77 )
January 15, 2014
Introduction
Plaintiff, George Rosenthal (“Rosenthal” or “Plaintiff”), filed an action against the
Defendants alleging claims under and/or for violation of: 42 U.S.C. § 1983 for violation of his
civil rights (Counts I & II); violation of the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12,
§11I (Count III); the Massachusetts Tort Claims Act, Mass.Gen.L. ch. 258 (Count IV); Assault
and Battery (Count V); and Malicious Prosecution (Count VI)1. On February 7, 2013, the
parties reported to the Court that the case had settled and the Court issued a Settlement Order of
Dismissal on February 8, 2013 (Docket No. 74). On April 3, 2013, the parties filed a Stipulation
of Dismissal (With Prejudice)(Docket No. 75).

1

Plaintiff’s Second Amended Complaint lists both the Massachusetts Tort Claims Act and Assault and
Battery claims as Count IV and the Malicious Prosecution Claim as Count V. I have assigned the correct Count
numbers to these claims.

On May 21, 2013, the court issued an order pursuant to Local Rule 7.22 that all materials
filed in the case pursuant to a protective, confidentiality or impoundment order would be entered
into the public file unless a motion regarding the future custody of the documents was filed with
the Court within twenty days. See Electronic Order (Docket No. 76). On June 10, 2013,
Defendants’ Motion To Continue Impoundment, Destroy Or Return Custody to Defendants
Document Nos. 42, 43, 44 (Docket No. 77) was filed. By that motion, Defendants seek to
continue impoundment of or the destruction or return of documents filed under seal by the
Plaintiff as Docket entry Nos. 42, 34 and 44. Plaintiff has filed an opposition to the motion in
which he argues in favor of transferring the materials to the public file.
Facts Relevant To Defendants’ Motion
Plaintiff’s Complaint alleged that on March 9, 2008, members of the Worcester Police
Department used excessive force against him while arresting him on the premises of a building
on Portland Street in Worcester; Plaintiff had entered the building intending to steal ferrous
metals and copper. While Plaintiff was attempting to peacefully surrender, he allegedly was
struck by one Defendants with a closed fist. That same Defendant spat on him, grabbed him and
struck his head against the wall. After he fell to the ground, multiple Defendant police officers
allegedly punched and kicked him while he lay on the floor.
On February 17, 2012, Plaintiff filed his second Amended Complaint (See Docket No.
19) and thereafter, the parties filed a joint request to amend the Scheduling Order deadlines. On

2

LR, D.Mass., 7.2 provides that when a party files a motion to impound, the motion shall contain a
statement of the earliest date on which the impoundment may be lifted, or a statement-- supported by good cause-that the material should be impounded until further order of the Court. If the impoundment order provides a cut-off
date but no arrangements for custody, the clerk (without further notice) shall place the material in the public file
upon expiration of the impoundment period. If the order provides for post-impoundment custody by counsel or the
parties, the materials must be retrieved immediately upon expiration of the order, or the clerk (without further
notice) shall place the materials in the public file. Id.

2

April 26, 2012, the parties filed an assented to motion for a protective order (Docket No.
22)(“Protective Order”), which was granted by the Court on May 8, 2012 (Docket No. 23).
The Protective Order covered:
documents containing Criminal Record Information (“CORI”); copies of any and all
documents generated by the Bureau of Professional Standards, formerly known as the
Internal Affairs Division, including but not limited to all logs, journals, investigative
reports, witness statements, records of complaints, complaint related dispositions,
disciplinary records, data compilations, and related documents; copies of any and all
documents pertaining to medical and/or psychological treatment; and personnel files.
Protective Order, at p. 1. The Protective Order further provided that the parties could, by agreement,
designate that additional documents be subject to its terms.

Additionally, the Protective Order set forth the parties obligations regarding such
documents:

[1.]

Plaintiff shall not disclose any documents or confidential information subject to this
Protective Order and the documents and confidential information contained therein shall not
be used for any purpose other than in connection with the preparation for trial and litigation
of this case. Furthermore, all documents subject to this Protective Order that are filed with
the Court shall not be filed electronically, and a motion and/or request to impound or seal
said documents shall accompany such a filing.

[2.]

Documents and information designated as confidential may be disclosed to counsel for the
parties in this action who are actively engaged in the conduct of this litigation; persons who
are working for counsel to the extent reasonably necessary to render professional services in
the litigation; persons with prior knowledge of the documents or of the confidential
information contained therein; to parties or representatives of the parties who are assisting in
the conduct of the litigation; and to court officials involved in this litigation, including court
reporters, stenographers, and special masters. Such documents may also be disclosed:
a.

to any person designated by the Court in the interest of justice, upon such
terms as the Court may deem proper; and

b.

to outside consultants or experts retained for the purpose of assisting counsel
in the litigation; to employees of parties involved solely in one or more
aspects of organizing, filing, coding, converting, storing, or retrieving data or
designing programs for handling data connected with these actions, including
the performance of such duties in relation to a computerized litigation support
system; and to employees of third-party contractors performing one or more
of these functions; provided, however, that in all such cases the individual to

3

whom disclosure is to be made has [agreed to be bound by the terms of the
Protective Order].

Id., at p. 2.
On January 14, 2013, Plaintiff filed a motion for leave to filed documents under seal; the
documents were being filed in support of his claims against the City under Monell v. Department
of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978) and his supervisory liability claims. See
Pl’s Mot. For Leave TO File Documents Under Seal (Docket No. 40). In that motion, Plaintiff
indicated that the documents were to be filed both in this case and in a separate case, Carpenter
v. Rivera, Civ. Act. No. 10-40233-TSH (“Carpenter”). However, the documents, which
seemingly relate almost exclusively to the Carpenter case, were never filed in that case. The
documents are currently the subject of pending motions in the Carpenter case.
Discussion
“The presumption that the public has a right to see and copy judicial records attaches to
those documents which properly come before the court in the course of an adjudicatory
proceeding and which are relevant to the adjudication. That presumption, so basic to the
maintenance of a fair and open judicial system and to fulfilling the public’s right to know, cannot
be easily overcome.” F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 412-13 (1st Cir. 1987).
Thus, “[d]ecisions on the sealing of judicial documents require a balancing of interests, although
the scales tilt decidedly toward transparency. The starting point must always be the common-law
presumption in favor of public access to judicial records [because] ‘[p]ublic access to judicial
records and documents allows the citizenry to ‘monitor the functioning of our courts, thereby
insuring quality, honesty and respect for our legal system.” ’ ” The presumption favoring public
access … is not inviolate, and may on some occasions be overcome by competing interests. That
said, ‘the presumption is nonetheless strong and sturdy,’ and thus ‘ “[o]nly the most compelling

4

reasons can justify non-disclosure of judicial records.” ’ ” National Org. for Marriage v. McKee,
649 F.3d 34, 70 (1st Cir. 2011) cert. denied, 132 S. Ct. 1635 (U.S. 2012)(internal citations and
citations to quoted cases omitted).
In Carpenter, this Court questioned whether Plaintiff’s counsel had mistakenly filed
Exhibits 42-44 in this case when they should have been filed in that case. At this time, it remains
unclear whether Exhibits 42-44 were supposed to filed in this case, this case and the Carpenter
case, or whether they were inadvertently filed in this case instead of the Carpenter case. In other
words, it is not clear to the Court they were properly filed in this case. Under the circumstances
and because of the uncertainty, I am allowing the Defendants’ motion to continue impoundment.
Conclusion
Defendants’ Motion To Continue Impoundment, Destroy Or Return Custody To
Defendants Document Nos. 42, 43, 44 (Docket No. 77) is allowed. The documents constituting
Exhibit 42, 43 and 44 shall remain impounded until further order of the Court.

/s/ Timothy S. Hillman__________________
TIMOTHY S. HILLMAN
UNITED STATES DISTRICT COURT

5