Gross et al v. Dearborn Heights, City of et al

Filing 37

ORDER granting in part 22 Second Motion to Compel Discovery - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARY JANE GROSS and
TERRY GROSS,
Plaintiffs,

CIVIL ACTION NO. 12-CV-15268

vs.
DISTRICT JUDGE VICTORIA A. ROBERTS
CITY OF DEARBORN HEIGHTS,
MAGISTRATE JUDGE MONA K. MAJZOUB
NICHOLAS SZOPKO, CPL. PELLERITO,
MICHAEL FRASER, and SGT.
BEEDLE-PEER,
Defendants.
________________________/
ORDER GRANTING IN PART PLAINTIFFS’ SECOND MOTION TO COMPEL
DISCOVERY (DOCKET NO. 22)
This matter comes before the Court on Plaintiffs’ second motion to compel discovery.
(Docket no. 22). Defendants filed a response. (Docket no. 25). The parties filed a Joint Statement
of Resolved and Unresolved Issues. (Docket no. 31). The motion has been referred to the
undersigned for action. (Docket no. 24). The Court dispenses with oral argument pursuant to E.D.
Mich. LR 7.1(f). Plaintiffs’ motion is now ready for ruling.
Plaintiffs brought this lawsuit against Defendant officers and the City of Dearborn Heights
pursuant to 42 U.S.C. § 1983. The incident underlying Plaintiffs’ complaint occurred on or after
August 10, 2012. (Docket no. 13). Plaintiffs allege that Defendant officers pushed into Plaintiffs’
home, forced the head of Plaintiff Mary Gross into silverware on the kitchen counter and smashed
her knee against kitchen cupboards as they were handcuffing her, then handcuffed her so tightly that
she lost circulation in her hands. Plaintiffs also allege that the Defendant officers caused a serious
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back injury to Plaintiff Mary Gross. They contend in relevant part that the amount of force used
against Plaintiff Mary Gross was excessive. In the amended complaint, Plaintiffs allege violations
of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution stemming from the incident. (Docket no. 13). Plaintiffs also raise allegations of
municipal liability against the City of Dearborn Heights, alleging that the City failed to train
individual officers, established customs or policies which permitted the individual Defendants to
violate Plaintiffs’ constitutional rights and deny medical treatment, and condoned the conduct of the
individual officers. (Docket no.13).
Plaintiffs served their Second Interrogatories and Requests to Produce to Defendants, seeking
responses to one interrogatory and nine requests to produce. They show that Defendants served
written responses and objections to the requests on June 25, 2013. (Docket no. 22, ex. 2). In
addition, Plaintiffs noticed the depositions of seven individuals whom they state are either
Defendants or Defendants’ employees. The depositions were scheduled to occur between July 9,
2013 and August 14, 2013. (Docket no. 22, ex. 3). Plaintiffs argue that Defendants objected to
virtually every discovery request and produced only two of the seven individuals for deposition.
They seek an order compelling discovery. The Joint Statement reveals that the parties have been
unable to resolve their dispute with respect to Plaintiffs’ Second Interrogatories and Requests to
Produce nos. 2, 3, 5, 6, 7, and 9. The Joint Statement also states that Defendants have been
unwilling to produce Chief Gavin for deposition.
Request no. 2 asks Defendants to produce all use of force reports from Jan. 1, 2008 to the
present. Request no. 3 asks for any and all complaints, investigations and discipline involving use
of force and/or excessive force from Jan. 1, 2008 to the present. Request no. 5 asks Defendants to

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produce any and all misconduct reports, charge sheets, commander action notations, citizens
complaints, internal affairs investigations, ombudsman investigations concerning use of force and/or
excessive force. Plaintiffs state they are willing to limit Request no. 5 to the timeframe starting
January 1, 2008. Request no. 6 requests records of all training related to use of force and/or
excessive force. Request no. 7 seeks a complete and legible copy of the internal investigation file
involving any other officers accused of improper use of force and/or excessive force within the past
five years. Request no. 9 asks Defendants to provide a complete and legible copy of all internal
affairs investigations and all citizen complaint investigations, from 2007 to present, where it is
alleged that the Dearborn Heights Police Department improperly used force and/or excessive force.
Defendants asserted the identical objection to each of the above requests, objecting on the
grounds that the requests are overly broad and burdensome and because they are not reasonably
calculated to lead to the discovery of admissible evidence. In the Joint Statement, Defendants
reasserted their objections that the requests are overly broad and unduly burdensome, and stated that
the requests will require Defendants to review the personnel files and records of approximately 125
current employees and all former employees of the Dearborn Heights Police Department.
Defendants did not object to any of the requests on the basis of privilege. Plaintiffs argue that their
requests are relevant to their § 1983 custom, policy and practice claim against the City of Dearborn
Heights.
Plaintiffs have alleged that the City of Dearborn Heights established or condoned a custom,
policy or practice under which its police officers were permitted to violate Plaintiffs’ constitutional
rights. Plaintiffs are therefore entitled to documents relevant to the issue of whether Defendant City
established or condoned a custom, practice, or policy of condoning excess force. And, while not

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entirely clear from the amended complaint, Plaintiffs state that they are also claiming that the
Defendant City failed to monitor the use of force. (Joint Statement at 2). Therefore, the Court will
give Plaintiffs some latitude in their requests for use of force, as opposed to excess force,
information. Accordingly, the Court finds that Plaintiffs requests seek relevant information and will
order Defendants to produce documents responsive to Request nos. 2, 3, 5, 6, 7 and 9 for the dates
January 1, 2008 to the present.
Next, Plaintiffs argue in their motion that Defendants have not produced Defendant BeedlePeer, Defendant Szopko, Officer Oblak, Corporal Smith, and Corporal Chicon for deposition. The
Joint Statement states only that Defendants have refused to produce Chief Gavin for deposition.
Plaintiffs have not shown that they noticed the deposition of Chief Gavin. Thus, the Court will not
compel his deposition. The Court will order Defendants to produce Defendant Beedle-Peer,
Defendant Szopko, Officer Oblak, Corporal Smith, and Corporal Chicon for deposition if these
depositions have not yet been completed.
IT IS THEREFORE ORDERED that Plaintiffs’ second motion to compel discovery
(docket no. 22) is GRANTED IN PART AND DENIED IN PART as follows:
A. On or before November 14, 2013 Defendants must produce documents they have within
their possession, custody or control that are responsive to Plaintiffs’ Second Interrogatories and
Requests to Produce nos. 2, 3, 5, 6, 7, and 9 as provided in this order.
B. To the extent they have not already done so, Defendants must produce Defendant BeedlePeer, Defendant Szopko, Officer Oblak, Corporal Smith, and Corporal Chicon for deposition at a

time and place convenient to the parties. The depositions must be completed no later than

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November 30, 2013.
C. In all other respects, including Plaintiffs’ request to compel the deposition of Chief
Gavin, Plaintiffs’ motion is denied.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).
Dated: October 29, 2013

s/ Mon a K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: October 29, 2013

s/ Lisa C. Bartlett
Case Manager

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