D'Angelo v. Clinton Township et al

Filing 26

MOTION to Compel Discovery and for sanctions by Thomas D'Angelo. (Williams, Amos)

UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS D’ANGELO,
CASE NO . 2:10-CV-12195
HONORABLE LAWRENCE P. ZATKOFF
MAGISTRATE MONA E. MAJZOUB

Plaintiff,
v.
PAUL PARENT, CLINTON TOWNSHIP,
a municipal entity, NICHOLAS DYKAS,
JASON FIGURSKI and KEITH WATSON,
in their official and individual capacities,
jointly and severally,

Defendants.
_____________________________________________________________________
AMOS E. WILLIAMS (P39118)
PETER W. PEACOCK (P37201)
THOMAS E. KUHN (P37924)
PLUNKETT COONEY
AMOS E. WILLIAMS, P.C.
Attorneys for Defendants Clinton Township
Attorneys for Plaintiff
Dykas, Figurski and Watson
615 Griswold St., Suite 1115
10 S. Main Street, Suite 400
Detroit, Michigan 48226
Mt. Clemens, Michigan 48043
[phone]
[phone]

NOTICE OF HEARING
PLEASE TAKE NOTICE that the PLAINTIFF’S MOTION TO COMPEL DISCOVERY
AND FOR SANCTIONS in the above-captioned cause will be brought to hearing at a time
and place set by the Court.
s/Amos E. Williams
615 Griswold, Suite 1115
Detroit, Michigan 48226-3998
[phone]
[e-mail]
(P39118)
Dated: February 25, 2011

UNITED STATED DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS D’ANGELO,
CASE NO . 2:10-CV-12195
HONORABLE LAWRENCE P. ZATKOFF
MAGISTRATE MONA E. MAJZOUB

Plaintiff,
v.
PAUL PARENT, CLINTON TOWNSHIP,
a municipal entity, NICHOLAS DYKAS,
JASON FIGURSKI and KEITH WATSON,
in their official and individual capacities,
jointly and severally,

Defendants.
_____________________________________________________________________
AMOS E. WILLIAMS (P39118)
PETER W. PEACOCK (P37201)
THOMAS E. KUHN (P37924)
PLUNKETT COONEY
AMOS E. WILLIAMS, P.C.
Attorneys for Defendants Clinton Township
Attorneys for Plaintiff
Dykas, Figurski and Watson
615 Griswold St., Suite 1115
10 S. Main Street, Suite 400
Detroit, Michigan 48226
Mt. Clemens, Michigan 48043
[phone]
[phone]

MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS
NOW COMES Plaintiff, by and through his attorneys, AMOS E. WILLIAMS, P.C.,
and pursuant to Federal Rules of Civil Procedure, moves this Honorable Court for
sanctions against Defendants.
1.

In support of his motion the Plaintiff says:

Plaintiff filed a complaint alleging violation of Plaintiff’s civil rights as well as
various state tort claims.

2.

Plaintiff sent his First Interrogatories and Requests.

3.

Defendant did not respond to the discovery.

4.

Plaintiff contacted Defendants with a request for concurrence in an order, but
got no response.

5.

Only after a court order did Defendants provide some documentation.

6.

During depositions of Defendants it became obvious that the Defendant
Township had been withholding significant discovery. (Ex. 1)

7.

In particular, Defendants testified that the Township had audio and video of
the booking and intake areas of the Township police department, which
records were never provided to Plaintiff. Further, Defendants testified to
daily logs, daily lineups, fingerprint/photograph information, booking sheet,
arrest book and other information directly related to Plaintiff’s arrest, which
Defendant had failed to produce.

8.

Defendants also testified to a citizen complaint process, and several citizen
complaints made against Defendants. None of these were produced despite
court orders.

9.

Plaintiff contacted Defendants with a request for concurrence in order
covering these missing records, and Defendants agreed to an order
producing the records on or before January 24, 2011.

10.

Despite the order, Defendants have failed to produce any records.

11.

Plaintiff has contacted Defendants to get the records or proceed with a
motion, but have gotten no response

WHEREFORE, Plaintiff respectfully requests that this Court order defendants to
provide the requested discovery within seven (7) days and that the Court sanction

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Defendants as allowed under Federal Rules of Civil Procedure, including, but not limited
to default, preclusion of Defendants from testifying at trial, preclusion of Defendants from
contesting their wrongful conduct, and/or to require defendants to pay reasonable attorney
fees and expenses for forcing the bringing of this motion.

s/Amos E. Williams
615 Griswold, Suite 1115
Detroit, Michigan 48226-3998
[phone]
[e-mail]
(P39118)
Dated: February 25, 2011

BRIEF IN SUPPORT OF MOTION TO COMPEL
Plaintiff has brought claims against Defendants for violation of civil rights, including
claims against the Defendant Township for municipal liability under its custom, policy and
practice. This incident arose when Plaintiff
Plaintiff sent his First Interrogatories & Requests, and Defendants refused to
respond. Only after a court order did Defendants provide some documentation.
During depositions of Defendants it became obvious that the Defendant Township
had been withholding significant discovery. In particular, Defendants testified that the
Township had audio and video of the booking and intake areas of the Township police
department, which records were never provided to Plaintiff. Further, Defendants testified
to daily logs, daily lineups, fingerprint/photograph information, booking sheet, arrest book
and other information directly related to Plaintiff’s arrest, which Defendant had failed to
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produce. Defendants also testified to a citizen complaint process, and several citizen
complaints made against Defendants. None of these were produced despite court orders.
Plaintiff contacted Defendants with a request for concurrence in order covering these
missing records, but got no response.
II.

Plaintiffs’ Constitutional Claims
Plaintiff has alleged a violation of their constitutional rights, particularly his

Constitutional right to be free from retaliation, harassment, wrongful arrest, wrongful
prosecution and excessive use of force by Defendant police officers. A municipality may
be held liable for an officer’s wrongful treatment, retaliation, and violation of civil rights
when it fails to receive, investigate and act on citizen complaints. See, e.g., Harris v. City
of Pagedale, 821 F2d 4999 (8th Cir. 1987); Haberthur v. City of Raymore, Mo., 119 F3d 720
(8th Cir. 1997).
A municipality’s prior notice of misconduct by officers creates an issue of fact
regarding its custom of not doing anything to investigate or discipline this kind of complaint.
Harris v. City of Pagedale, 821 F2d 4999 (8th Cir. 1987); Czajkowski v. Chicago, 810 Fed
Supp 1428 (N.D. Ill, 1992).
Plaintiffs are required to show a persistent pattern of misconduct and a failure by
the policymakers to adequately address the problem. As the court in Brittton stated:
Unlike a ‘policy’, which comes into existence because of affirmative decision
of a policymaker, a custom develops from the bottom up. Thus, the liability
of the municipality for customary constitutional violations derives not from its
creation of the custom, but from its tolerance of or acquiescence in it.
Britton, 901 F Supp 444, 450 (D Mass 1995)
See also, City of Canton v. Harris, 489 U.S. 378 (1989).
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The courts have established two (2) different approaches on failure to train cases.
First, a Plaintiff may establish a failure to train officials in a specific area where there is an
obvious need for training to avoid Constitutional violations. See, e.g.,Doe v. Estes, 926
Fed Supp 979, 988 (D Nev, 1996); Bolon v. Rolla Public Schools, 917 Fed Supp 1423,
1431 (ED Mo. 1996); Reynolds v. Borough of Avalon, 799 Fed Supp 442, 447 (DNJ, 1990).
Second, a Plaintiffs may establish a pattern of unconstitutional conduct that is so
pervasive as to imply actual or constructive knowledge by policy makers who fail to act on
the obvious need for training. Several courts establish criteria for that kind of pervasive
pattern. See, e.g., Beck v. City of Philadelphia, 89 F3d 966 (3rd Cir. 1996).
The CITY’S investigation of the misconduct can’t merely be a sham. See, e.g., Beck
v. City of Philadelphia, 89 F3d 966 (3rd Cir. 1996).
Even if a City supplies minimal training that may not be adequate to preclude its §
1983 liability. See, e.g., Russo v. City of Cincinnati, 953 F2d 1036, 1047 (6th Cir. 1992).
In the present case, Defendant CITY refuses to provide the very information that
Plaintiffs are required to present to prove a case of an un-Constitutional custom.
The Thomas court pointed out the importance of discovery concerning misconduct
and the municipality’s response to that misconduct:
Defendants argue that there is no practice or custom of permitting sexual
harassment or assault because the District of Columbia regulations
expressly prohibit intimate relations. . . This argument misses the point.
While the regulations may exist, violations of them, or a pattern of such
violations, may themselves be a practice or custom. The District of Columbia
is not off the hook merely because regulations exist.
Thomas V. District of Columbia, 887 F Supp 1, 5 (DDC, 1995)

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In the present case, Plaintiff’s requests are relevant to showing a pervasive pattern
of retaliation and constitutional violations by the City Police Department and to showing the
inadequacy of the Department’s response to that type of misconduct. All the requested
discovery is therefore relevant and discoverable.

s/Amos E. Williams
615 Griswold, Suite 1115
Detroit, Michigan 48226-3998
[phone]
[e-mail]
(P39118)

CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2011, I served Notice of Hearing, Motion to
Compel Discovery and For Sanctions, Brief in Support of Motion to Compel and
Certificate of Service on with the Clerk of the Court using the ECF system, which will
send notification of such filing to Peter W. Peacock, Esquire.

s/Amos E. Williams
615 Griswold, Suite 1115
Detroit, Michigan 48226-3998
[phone]
[e-mail]
(P39118)

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