GROARK v. TIMEK et al

Filing 47

OPINION. Signed by Magistrate Judge Joel Schneider on 11/27/2013. (dmr)

[Doc. No. 32]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MATTHEW GROARK,
Plaintiff,
Civil No. 12-1984 (RBK/JS)
v.
POLICE OFFICER FRANK TIMEK, et
al.,
Defendants.
OPINION
Plaintiff Matthew Groark alleges Atlantic City Police Officers
Frank Timek (“Timek”) and Sterling Wheaten (“Wheaten”) beat him up
without

provocation

and

then

filed

false

criminal

charges.

Plaintiff learned in discovery that from May 2001 to the present,
Timek and Wheaten have collectively been the subject of approximately
78 complaints similar to those asserted here – excessive force,
assault,

threats,

prosecution. 1

improper

search

and

arrest,

and

malicious

Atlantic City’s Police Department (“Atlantic City”)

did not sustain any of the complaints and Timek and Wheaten were never
disciplined.

Plaintiff’s Motion to Compel Discovery asks the Court

1

The statistics for Timek and Wheaten cited in this Opinion are derived from
Atlantic City’s Internal Affairs Index Cards attached as Exhibit C to plaintiff’s
motion. Doc. No. 32. (Atlantic City has not argued the Index Cards are
Confidential.) In the face of the messy compilation, the Court did its best to
summarize the relevant numbers. Even if the Court’s analysis is not 100% accurate,
the essence of the numbers speak for themselves.

1

to Order Atlantic City to produce Timek and Wheaten’s complete
Internal Affairs (“IA”) files so plaintiff can determine if Atlantic
City’s IA unit and investigations are a sham.

Plaintiff argues that

Atlantic City is deliberately indifferent to its police officers’
misconduct and it condones the obvious consequences of its failure
to properly train, supervise and discipline its officers.

Plaintiff

also argues he wants to get to the bottom of why it appears Timek
and

Wheaten

repeatedly

use

excessive

force

with

Plaintiff’s motion has been fully briefed and argued.

impunity.
Plaintiff’s

motion is GRANTED. 2
Background
On August 7, 2010, plaintiff was a customer at the Dusk Nightclub
in Caesar’s Casino, Atlantic City, New Jersey, where defendant police
officers Frank Timek and Sterling Wheaten were working security.
Plaintiff alleges that “[w]ithout provocation” Timek and Wheaten
threw him down the stairs and punched and “kneed” him repeatedly.
Complaint &&26, 27.

The officers then arrested plaintiff and

charged him with obstructing the administration of law or other
governmental function, resisting arrest, and aggravated assault.
The aggravated assault charge was later reduced to simple assault.
Id. &&37, 38.

All charges were subsequently dismissed.

2

Id. &39.

In New Jersey a municipal police department is not a separate legal entity from
the governing municipality. Franks v. Cape May County, C.A. No. 07-6005 (JHR),
2010 WL 3614193, at *7 (D.N.J. Sept. 8, 2010). Accordingly, the Court will refer
to Atlantic City and not the Atlantic City Police Department.

2

Plaintiff sued Timek, Wheaton and Atlantic City.

Plaintiff

alleges there was no probable cause to arrest him and that he was
assaulted without cause or justification.

Id. &&42, 43.

As to

Atlantic City, plaintiff alleges it did not properly train its police
officers and that its “customs, policies, practices, ordinances,
regulations, and directives ... caused [his] false arrest ....”
&&49, 52.

Id.

Plaintiff also alleges that Atlantic City “has been

deliberately indifferent to the violent propensities of its police
officers, the individually named Defendant police officers in
particular.”

Id. &53.

Plaintiff’s complaint includes Fourth

Amendment claims for excessive force, false arrest and malicious
prosecution.

Counts IV and V of the complaint assert claims against

Atlantic City for constitutional deprivations caused by “inadequate
policies, procedures, and customs,” and “inadequate training and
supervision.”

See Monell v. Department of Social Services of City

of New York, 436 U.S. 658 (1978). 3
During discovery plaintiff requested all IA files regarding
Timek and Wheaten and the August 7, 2010 incident.

Plaintiff

believes these records may include witness statements, officer
statements, investigation documents, and “written depositions.”
Although Atlantic City objected to plaintiff’s request it produced
the “Internal Affairs Index Cards” (hereinafter “Index Cards”) for

3

The complaint also includes common law claims for assault and battery, false
imprisonment, false arrest and malicious prosecution.

3

Timek and Wheaten.

As to Timek, the Index Card lists 52 complaints

from May 30, 2001 to March 20, 2012. 4

The complaints include, inter

alia, allegations of “simple assault,” “excessive force,” “racial
profiling,” “racial slurs,” “demeanor,” “improper search,” “false
arrest,”

“threats and demeanor,” and “improper arrest.”

As to the

“disposition” of these charges, 49 of the 53 listed incidents are
marked “exonerated,” “unfounded,” or “not sustained.” 5

The Index

Card for Wheaten lists 26 complaints from September 19, 2008 to April
26, 2012. 6 The complaints include allegations of “excessive force,”
“harassment,” “improper search and demeanor,” “simple assault and
standard of conduct,” “assault and neglect of duty,” and “improper
arrest.”

All 26 complaints, except for one marked “Administratively

Closed,” are marked “exonerated” or “not sustained.”
Complaints made against Timek and Wheaten by senior police
department personnel fared no better than citizen complaints.

4

The

Atlantic City argues an excessive number complaints were made because “any
incident of a criminal apprehension with the use of a K-9 triggers an Internal
Affairs investigation.” May 16, 2013 Letter Brief at 7, citing to Exhibit B, Doc.
No. 34. Although not clear, it appears that Atlantic City may be misreading its
referenced K-9 Policy and Procedure. The policy only requires that a “Use of Force
Report” be prepared when a K-9 is involved in an incident, not an IA complaint.
Also, the policy provides that if a K-9 bites someone the K-9 Unit Supervisor and
Internal Affairs must review the circumstances to determine if there are policy,
training and discipline issues to address. The policy does not explicitly require
that an IA complaint be recorded.
5
No disposition is listed for excessive force charges on March 20, 2012 and April
12, 2012. Timek’s charge of “missing property” on July 12, 2005, is marked
“administratively closed,” and a charge of “unsworn falsification to authorities”
on March 20, 2006, was “sustained.”
6
The Court is not certain that a complete list of Wheaten’s IA history has been
produced. Olin Jardue Caldwell, Jr., (C.A. No. 94-5049(JHR)) filed a '1983 lawsuit
against Wheaten on November 14, 1994. If Wheaten worked as an Atlantic City police
officer at least as early as 1994, the Court cannot easily explain why September
19, 2008, is the first listed IA complaint on his Index Card.

4

charges made by Chief Snellbaker on October 5, 2004, Captain Wm. Burke
on March 20, 2005, Captain Dooley on March 7, 2006, and Acting Chief
Jubilee on October 11, 2006, were also not “sustained.” The same is
true for Chief Mooney’s July 16, 2009 complaint against Wheaten of
“simple assault and standard of conduct.”
Plaintiff filed the instant motion after Atlantic City refused to
produce the complete IA files for Timek and Wheaten rather than just
their Index Cards. Plaintiff argues the requested IA files are
relevant to Atlantic City’s Monell liability and whether “there was
a clear pattern of misconduct and constitutional violations by the
Defendant Officers in the months and years leading up to physical
assault of the Plaintiff.”

Motion at &16.

Plaintiff also argues,

“[s]uch a pattern would demonstrate that Atlantic City had a policy
and custom of deliberate indifference to the persistent problem of
police brutality and false arrests.”
Atlantic

City

plaintiff’s motion.

makes

several

Id. at &17.
arguments

in

response

to

First, it argues “[p]laintiff should not be

entitled to confidential files involving completely separate and
irrelevant incidents and individuals when he failed to make a
complaint himself.” May 16, 2013 Letter Brief (“LB”) at 2. Second,
plaintiff argues the requested documents should not be compelled
because plaintiff “failed to satisfy the pleading requirement for
his '1983 claim.”

Id.

Third, Atlantic City argues the requested

documents are privileged and irrelevant.

5

Discussion
The Court will first discuss two important topics to put the
subject discovery issue in context.

The first topic is the internal

affairs process that all New Jersey municipalities must follow.

The

second topic is a general summary of Atlantic City’s potential Monell
liability.
1. The Internal Affairs Process
Pursuant

to

N.J.S.A.

40A:14-181,

municipalities

such

as

Atlantic City are required to adopt and implement internal affairs
guidelines that must be consistent with the guidelines governing the
“Internal Affairs Policy and Procedures” (hereinafter “IAPP”) of the
Police Management Manual promulgated by the Police Bureau of the
Division of Criminal Justice of the Department of Law and Safety. 7
The purpose of the IAPP is to “assist the State’s law enforcement
agencies with the investigation and resolution of complaints of
police misconduct that originate with private citizens or are
generated by the supervisors, officers or employees of a law
enforcement agency.”

IAPP at 3.

The goal of Internal Affairs “is

to insure that the integrity of the [police] department is maintained
through a system of internal discipline where fairness and justice
are assured by objective, impartial investigation and review.”

See

November 1992 Internal Affairs Memorandum of Robert J. Del Tufo,
7

The IAPP is available at
http://www.state.nj.us/lps/dcj/agguide/internalaffairs2000vi.2.pdf.

6

Attorney

General

(“Del

Tufo

AG

Memo.”)

at

9,

available

at

http://www.state.nj.us/lps/dcj/agguide/internal.htm. Three things
must be done with regard to the internal affairs function.

One,

police departments “must implement an internal affairs policy that
provides for a meaningful and objective investigation of citizen
complaints of police misconduct.”

Id.

Two, the behavior of police

officers for misconduct must be monitored and tracked.
officer misconduct must be corrected.

Three,

Id.

The purpose of the internal affairs unit is “to establish a
mechanism

for

the

receipt,

investigation

complaints of officer misconduct.”

Id. at 13.

and

resolution

Mandated internal

affairs requirements include the following:
• Each agency must thoroughly and objectively
investigate
all
allegations
against
its
officers.
. . .
• Each agency must establish and maintain an
internal affairs records system which, at a
minimum, will consist of an internal affairs
index system and a filing system for all
documents and records. In addition, each agency
shall establish a protocol for monitoring and
tracking the conduct of all officers.
• Each agency must submit periodic reports to
the
county
prosecutor
summarizing
the
allegations received and the investigations
concluded for that period. Each county
prosecutor shall establish a schedule for the
submission of the reports and specify the
content of the reports.

7

of

• Each agency must periodically release reports
to the public summarizing the allegations
received and the investigations concluded for
that period. These reports shall not contain the
identities of officers or complainants.
In
addition, each agency shall periodically
release a brief synopsis of all complaints where
a fine or suspension of ten days or more was
assessed to a member of the agency.
The
synopsis shall not contain the identities of the
officers or complainants.
Id. at 4-5.

These are “critical performance standards that must be

implemented.”

Id. at 5.

The IAPP describes the records Atlantic City must keep and the
protocols it must follow.

Atlantic City must:

[M]aintain a comprehensive central file on all
complaints received, whether investigated by
internal affairs or assigned to the officer’s
supervisors for investigation and disposition.
In addition, internal affairs should establish
protocol for tracking all complaints received
by the agency and the conduct of all officers.
The protocol must include criteria for
evaluating the number of complaints received by
the agency and the number of complaints filed
against individual officers.
Id. at 14.

All citizen complaints must “be uniformly documented for

future reference and tracking.”

Id. at 18.

According to the IAPP

a “thorough and impartial” investigation must be done for a proper
disposition of a complaint.

Id. at 27.

The complainant and

witnesses should be personally interviewed if circumstances permit
and formal statements taken.

Id. at 28.

should be obtained, reviewed and preserved.

All relevant records
Id.

At the conclusion

of the IA investigation the investigator must prepare a written

8

report that consists of an “objective investigation report which
recounts all of the facts of the case and a summary of the case along
with conclusions for each allegation and recommendations for further
action.”

Id. at 45.

The report must also “contain a complete

account of the investigation.”

Id.

In addition, “a detailed

chronology [must] be maintained of each investigation so that
critical actions and decisions are documented.”

Id. at 20.

For each allegation in an IA investigation the conclusion must
be recorded as “exonerated” (the alleged incident did occur, but the
actions of the officer were justified, legal and proper), “sustained”
(the investigation disclosed sufficient evidence to prove the
allegation and the actions of the officer violated a provision of
the agency’s rules and regulations or procedures), or “not sustained”
(the investigation failed to disclose sufficient evidence to clearly
prove

or

disprove

the

allegation).

Id.

at

21,

45.

An

IA

investigation file is required for all IA reports and all IA
complaints must be recorded in an index file.

The file must include

“the entire work product of the internal affairs investigation.”
Id. at 46. These record requirements give Atlantic City “the ability
to track the complaint records of individual officers and identify
those officers with a disportionate number of complaints against
them.”

Id. at 51.

problem employees.”

Procedures must be established “for dealing with
Id.

at 51.

9

Atlantic City is required to prepare periodic reports, at least
quarterly, for “the law enforcement executive that summarize[s] the
nature and disposition of all misconduct complaints....”
48.

Id.

at

Internal Affairs activity must also be reported to the county

prosecutor.

Id.

An annual report that summarizes the types of

complaints received and the dispositions of the complaints must be
made available to the public.

Id. at 50.

“The most critical aspect of the disciplinary process is the
investigation of an allegation of police misconduct.

Only after a

complete, diligent and impartial investigation can a good faith
decision be made as to the proper disposition of the complaint.”
Tufo AG Memo.

Del

Perfunctory investigations are prohibited. The

process must be “real” and the investigation “meaningful and
objective.”

IAPP at 51.

The IA process:

Must provide the citizen with “at least a
rudimentary chance of redress when an injustice
is done.”
It is not enough for police
executives to adopt a policy governing the
receipt, investigation and resolution of
complaints of officer misconduct. The policy
must be implemented and executed with a
commitment to the integrity of the agency and
the constitutional rights of the citizenry.
Agencies with an objective and fair internal
affairs process will limit their risk of civil
liability. Agencies with a superficial or
shallow internal affairs process run the risk
of significant civil liability.
Id.
and

The “linchpin” of the process to monitor and track the behavior
performance

of

individual

10

police

officers

is

“quality

supervision
process.”
2.

and

an

objective

and

impartial

internal

affairs

Id.

Monell Liability

Although a municipality may be liable under 42 U.S.C. '1983, it
cannot be held liable on a theory of respondeat superior.
436 U.S. at 691.

Monell,

Under '1983 Atlantic City is only responsible for

its own illegal acts.

Id. at 692.

This has resulted in a “two-path

track to municipal liability,” depending on whether the allegation
is based on an alleged unconstitutional municipal policy or custom.
Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). As to
policy, municipalities like Atlantic City are liable where “the
action that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by the body’s officers.

Id. at 690.

As to

custom, municipalities may be sued for “constitutional deprivations
visited pursuant to governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official decision
making channels.”

Id. at 690-91.

Liability based on a custom

rather than a formal adopted policy proceeds on the theory that the
relevant practice is so widespread as to have the force of law.

Board

of County Com’rs. of Bryan County, Okl. v. Brown, 520 U.S. 397, 404
(1997).

Custom may also be established by proof of knowledge and

acquiescence.
1989).

Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir.

The Supreme Court has recognized that where a violation of

11

federal rights is a “highly predictable consequence” of an inadequate
custom in a situation likely to recur, municipal liability may attach
based upon a single application of the custom.

Monaco v. City of

Camden, C.A. No. 04-2406 (JBS), 2008 WL 8738213, at *7 (D.N.J. April
14, 2008)(citing Board of County Com’rs, 520 U.S. at 409-410 (1997)).
In order to impose '1983 liability pursuant to a custom,
“plaintiff must show that the municipal action was taken with the
requisite degree of culpability and [there must be]... a direct
causal link between the municipal action and the deprivation of
federal rights.” Board of County Com’rs, 520 U.S. at 404. Simply
showing that plaintiff has suffered a deprivation of constitutional
rights “will not alone permit an inference of municipal culpability
and causation.” Id. at 406.

Instead, plaintiff must demonstrate

“that the municipal action was taken with ‘deliberate indifference’
to its known or obvious consequences….”
heightened negligence will not suffice.”

A showing of simple or even
Id. at 407.

A pattern or

continued adherence to an approach that a municipality knows or
should know has failed to prevent tortious conduct of police officers
may establish “the conscious disregard for the consequences of [its]
action necessary to trigger municipal liability.”

Id.

Deliberate

indifference may also be shown if it is obvious that a policy or custom
would

lead

to

constitutional

violations.

Allegheny, 219 F.3d 261, 277 (3d Cir. 2000).

12

Berg

v.

County

of

The decision in Katzenmoyer v. Camden Police Department, C.A.
No. 08-1995 (RBK/JS), 2012 WL 6691746, at *4 (D.N.J. Dec. 21, 2012),
discussed the fact that courts in this Circuit have grappled with
the issue of what evidence a plaintiff must submit to support a Monell
municipal

liability

claim

under

'1983.

The

case

noted

that

statistical evidence standing alone, “isolated and without further
context,” is generally not enough to “justify a finding that a
municipal

policy

or

custom

authorizes

unconstitutional acts of police officer.”

or

condones

the

Id. at *4 (citing Merman

v. City of Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010)).

If a

plaintiff relies mainly on statistics showing the frequency of
excessive force complaints and how frequently they are sustained,
the plaintiff must show why the prior incidents were wrongly decided
and how the misconduct in the case is similar to that involved in
the present action.

Id. (citing Franks v. Cape May County, C.A. No.

07-6005 (JHR/JS), 2010 WL 3614193, at *12 (D.N.J. Sept. 8, 2010)).
As the Court noted in Franks at *12 (citation and quotation omitted),
“[r]ather than simply reciting a number of complaints or offenses,
a plaintiff must show why those prior incidents deserved discipline
and how the misconduct in those cases is similar to that involved
in the present action.”

This can be done by showing “that the officer

whom a plaintiff accuses of using excessive force has been the subject
of multiple similar complaints.”
*4.

Katzenmoyer, 2012 WL 6691746, at

A plaintiff can also submit a sample of excessive force

13

complaints from the relevant police department “bearing similarities
to her own case and arguably evincing a tendency on the part of the
internal affairs division to insulate officers from liability.” Id.
at *5.
So, for example, even though the plaintiff in Katzenmoyer
presented evidence that between 2003 and 2009, only one grievance
out of 641 complaints filed against Camden police officers was
sustained, the Court granted summary judgment to Camden on the
plaintiff’s Monell claim.

The Court noted that the plaintiff did

not offer a sample of the complaints for its evaluation, and that
“standing alone” the statistical evidence it submitted did not
support a finding of municipal liability under Section 1983.

Id. 8

But see Worrall v. City of Atlantic City, C.A. No. 11-3750 (RBK/JS),
2013 WL 4500583 (D.N.J. Aug. 20, 2013).

In Worrall the Court denied

Atlantic City’s motion for summary judgment based on the number of
complaints against Wheaten, the related subject matter of the
complaints, and the relatively short time within which the complaints
were filed.

Even though the complaints against Wheaten were either

“not sustained” or he was “exonerated,” the Court held that the jury
could have inferred Atlantic City’s acquiescence to Wheaten’s
alleged unlawful conduct, and could have inferred knowledge and
deliberate indifference. Id. at *5.
8

In the same vein, in Merman,

The Court also noted that the officer defendants did not have a history of multiple
excessive force complaints. Id.

14

supra, the Court denied Camden’s motion for summary judgment in an
excessive force case asserting a Monell claim.

The Court noted:

Given the sheer number of civilian complaints
in relation to the number of officer, and the
pattern of escalation over the years, the
significance
of
plaintiff’s
quantitative
evidence is, unquestionably, substantial and
greatly informs this Court’s decision.
824 F. Supp. at 591. 9
3. Atlantic City’s Arguments
Several of Atlantic City’s arguments merit only a short mention.
The argument that plaintiff cannot compel the production of IA
records because he did not file an IA complaint is meritless. 10

See

LB at 2. (“Defendants maintain the position that plaintiff should
not be entitled to confidential files involving completely separate
and irrelevant incidents and individuals when he failed to make a
complaint himself.”).

There is no support for the proposition that

a party may not discover relevant IA files unless he/she files an
IA complaint. Not surprisingly Atlantic City cites no credible
support for its position.

Atlantic City relies on its guidelines

9

It is noteworthy that in Merman Camden’s motion was denied after the Court reviewed
“extensive Internal Affairs’ records,” comprised of at least forty reports. Id.
at 591-92. These are the same types of records plaintiff is requesting here.
10
It is apparent that not all citizens who complain about excessive force file IA
complaints. For example, on September 16, 2011, Huschel B. Story filed a pro se
'1983 complaint against Atlantic City and Officer Frank Timex (sic)(C.A. No.
11-5340 (RBK/JS). Timek’s Index Card does not list Story as making a complaint.
The same situation exists for Seth Rouzier (C.A. No. 07-5218 (RBK/AMD)(date of
incident (“DOI”) November 5, 2005). As to Wheaton, the same situation exists for
Michael Troso (C.A. No. 10-1566 (RMB/JS))(DOI August 19, 2008), David Castellani
(C.A. No. 13-5848(RMB/JS))(DOI June 15, 2013), Mohamed Ellaisy (C.A. No. 13-5401
(JBS/AMD)), and Janie Costantino (C.A. No. 13-6667 (RBK/AMD))(DOI July 20, 2012).

15

which provide that it may release the IA investigation to the attorney
for an officer named in a lawsuit.
ignores

the

portion

of

the

LB at 9.

IAPP

which

However, Atlantic City
provides

investigation may be released “[u]pon Court Order.”

that

an

IA

IAPP at 47.

Further, Atlantic City disregards the substantial unassailable body
of New Jersey case law which evidences that a court can Order the
production of IA reports in a '1983 lawsuit.

See, e.g., Torres v.

Kuzniasz, 936 F. Supp. 1201 (D.N.J. 1996); Jones v. DeRosa, 238 F.R.D.
157 (D.N.J. 2006); Scouler v. Craig, 116 F.R.D. 494 (D.N.J. 1987);
Preston v. Malcolm, C.A. No. 09-3714 (JAP), 2009 WL 4796797 (D.N.J.
Dec. 8, 2009).
Atlantic City’s argument that plaintiff’s discovery motion
should be denied because plaintiff did not plead a proper Monell claim
is also meritless.

See LB at 2.

(“[T]he production of the internal

affairs files should not be compelled because Plaintiff failed to
satisfy the pleading requirement for his '1983 claim.”) Citing to
McTernan v. City of York, PA, 564 F.3d 636 (3d Cir. 2009), Atlantic
City argues that plaintiff’s complaint is deficient and, therefore,
its motion should be denied.

However, now is not the time or context

to address the adequacy of plaintiff’s pleading. Atlantic City had
the opportunity to challenge the sufficiency of plaintiff’s pleading
when it answered plaintiff’s complaint on May 30, 2012 [Doc. No. 4]
and amended complaint on March 4, 2013 [Doc. No. 17].

Instead of

filing a responsive Rule 12(b) motion, Atlantic City answered the

16

complaint.

To date Atlantic City also has not filed a Rule 12(c)

motion. Atlantic City cannot use its failure to file a dispositive
motion as an excuse to avoid producing relevant discovery.

Pursuant

to Fed. R. Civ. P. 26(b)(1), plaintiff may obtain discovery relevant
to his claims. 11

Since plaintiff pleaded a Monell claim, and the

claim is presently viable, Atlantic City must produce relevant
non-privileged discovery regarding the claim.

The Court agrees with

plaintiff that in order “to determine exactly what information is
relevant and ‘essential’ to plaintiff’s claim, a review of the
Amended Complaint and the Counts contained therein is crucial.”
at 2-3.

LB

This is exactly what the Court is doing. Plaintiff pleaded

that Atlantic City’s deliberate indifference to its inadequate
customs, policies, and practices caused the violation of his
constitutional rights.

Therefore, Monell discovery is not off

limits.
4. Privilege and Relevancy
Pursuant to Fed. R. Civ. P. 26(b)(1), parties may obtain
discovery of non-privileged matter that is relevant to a party’s
claim or defense.

The Court will separately address Atlantic City’s

objection that the requested discovery is privileged and irrelevant.

11

The Court is not ruling that Atlantic City waived its right to assert a Rule
12(b) or (c) defense. The Court is instead ruling that defendant cannot rely upon
an alleged deficient complaint that it answered as an excuse to bar otherwise
relevant discovery.

17

a. Law Enforcement Privilege
Although not discussed in detail, Atlantic City argues the
requested IA records are privileged.

The Court disagrees. Since

this matter is pending in federal court the privilege issues in the
case depend upon the application of Fed. R. Evid. 501.

This Rule

provides that in federal question cases the federal common law of
privilege applies rather than state law.
1207-08.

Torres, 936 F. Supp. at

Where, as in this case, the complaint alleges a federal

question claim and supplemental state law claims, the federal common
law of privilege applies to all claims.

Wm. T. Thompson Co. v.

General Nutrition Corp., Inc., 671 F.2d 100, 104 (3d Cir. 1982). The
justification for this rule is sound:
[T]he rule providing for the application of the
federal law of privilege, rather than state law,
in civil rights actions is designed to ensure
that state and county officials may not exempt
themselves from the very laws which guard
against their unconstitutional conduct by
claiming that state law requires all evidence
of
their
alleged
wrongdoing
to
remain
confidential.
Torres, 936 F. Supp. at 1213.
In a '1983 case a claim of governmental privilege “[m]ust be so
meritorious as to overcome the fundamental importance of a law meant
to

insure

each

citizen

from

unconstitutional

state

action.”

Scouler, 116 F.R.D. at 496 (citation and quotation omitted). Without
specifying its name, Atlantic City presumably relies on the qualified
“law enforcement privilege.”

The privilege is “designed to protect

18

documents and information whose disclosure would seriously harm the
operation of government.”

Preston, 2009 WL 4796797, at *6 ; see also

Torres, 936 F. Supp. at 1209.

As noted in Torres, the application

of the privilege “requires a court to weigh the government’s interest
in ensuring the secrecy of the documents in question against the need
of the adverse party to obtain the discovery.”

Id.; see also United

States v. O’Neill (“O’Neill”), 619 F.2d 222, 227 (3d Cir. 1980).
There is no fixed rule for determining when the law enforcement
privilege applies. The decision in Frankenhauser v. Rizzo, 59 F.R.D.
339 (E.D. Pa. 1973), is the seminal case identifying the factors to
evaluate and balance when deciding whether the law enforcement
privilege applies.

The Frankenhauser factors are:

(1) the extent to which disclosure will thwart
governmental
processes
by
discouraging
citizens
from
giving
the
government
information; (2) the impact upon persons who
have given information of having their
identities disclosed; (3) the degree to which
governmental self-evaluation and consequent
program improvement will be chilled by
disclosure; (4) whether the information sought
is factual data or evaluative summary; (5)
whether the party seeking the discovery is an
actual or potential defendant in any criminal
proceeding either pending or reasonably likely
to follow from the incident in question; (6)
whether the police investigation has been
completed; (7) whether an intradepartmental
disciplinary proceeding have arisen or may
arise from the investigation; (8) whether the
plaintiff’s suit is non-frivolous and brought
in good faith; (9) whether the information
sought is available through other discovery or
from other sources; and (10) the importance of
the information sought to the plaintiff’s case.

19

Id. at 344 .

The application of the law enforcement privilege is a

fact intensive analysis that is dependent on the particular facts
of each case, taking into consideration the nature of the claim, the
possible defenses, the significance of the requested information,
and other relevant factors.

See D’Orazio v. Washington Tp., C.A.

No. 07-5097 (RMB), 2008 WL 4307446, at *3 (D.N.J. Sept. 16,
2008)(citing Roviaro v. United States, 353 U.S. 53, 62-63 (1957)). 12
Ultimately the decision boils down to the question of fundamental
fairness.

If the requested documents are “essential to a fair

determination of a cause, the privilege must give way.”

Id.

(citing Roviaro, 353 U.S. at 61).
A claim asserting the law enforcement privilege must be made
by the head of the agency making the privilege after that person has
personally reviewed the material and served “precise and certain
reasons for preserving” the confidentiality of the communications.
O’Neill, 619 F.2d at 226 (citation omitted).

Usually such claims

are made by affidavit. Id. Broad invocations of a privilege are
unacceptable. Id. at 225. In addition, the party asserting the
privilege “must demonstrate to the court that [the] relevancy [of
the allegedly privileged IA documents] is outweighed by the specific
harm that would ensue from their disclosure.”

Torres, 936 F. Supp.

at 1212.
12

Although D’Orazio discussed the application of the “informer’s privilege,” its
discussion is relevant because the informer’s privilege and law enforcement
privileges are analogous. Id. at *4; see also O’Neill, 619 F.2d at 229.

20

Atlantic City’s privilege argument is summarily denied since
it did not properly support its assertion.

No proof was submitted

by the Chief of Police (or his/her designee) that they personally
reviewed the requested records.

Atlantic City’s privilege argument

is also summarily denied because Atlantic City did not offer “precise
and certain reasons for preserving” the confidentiality of its IA
records. See O’Neill, supra. Atlantic City merely makes broad
allegations of harm such as the release of the IA files “will be
harmful to the interests of law enforcement, not to mention the public
interest.”

LB at 10.

It also argues “[u]nlimited disclosure will

interfere with future internal affairs investigations” and “[t]o
release this information would certainly jeopardize the functions
and procedures of the IA unit which would ultimately harm the public.”
Id. at 10, 13.

These “broadside invocation[s]” and “wholesale

claims” of privilege are unsatisfactory.

O’Neill, 619 F.2d at

225-227; Torres, 936 F. Supp. at 1208-09.

Surely Atlantic City

cannot

some

deny

discoverable

that
facts.

its

IA

files

Atlantic

contain

City’s

non-privileged

indiscriminate

claim

of

privilege is a sufficient ground in and of itself to reject its
privilege claim.

When faced with such a claim the Court cannot make

a just or reasonable determination of its validity. O’Neill, 619 F.2d
at 228.

Nevertheless, even if the required affidavit was served,

and even if Atlantic City served specific privilege objections, the
Court would still hold that the requested records are not privileged.

21

Based on the facts and circumstances present herein, the Court
has no hesitation ruling that the law enforcement privilege is
outweighed by the public interest in disclosure of the requested IA
files.

The factors the Court has to weigh are presented in the

context of a case where Timek and Wheaten have a long history of
similar complaints against them.

On top of this, Timek and Wheaten

are no strangers to '1983 litigation, having been named as party
defendants in other cases filed in this court, several of which are
presently pending. 13

Further, Timek and Wheaten’s IA records have

been produced in other cases. 14
As to the Frankenhauser analysis, the first and second factors
to examine are whether disclosure will discourage citizen complaints
and have a detrimental impact on them.

The answer is no.

As to the

complainants, there is nothing embarrassing about the complaints and
they are not likely to lead to undue publicity or retaliation. In
fact, the complainants may very well want their identities revealed.
This might give them comfort that there are other similarly situated
13

See Rivera v. Garry, C.A. No. 12-4379 (NLH/AMD); Rovzier v. Timek, C.A. No.
07-5218 (RBK/AMD); Williams v. Atlantic City, C.A. No. 02-4501 (JHR/JBR): Simmons
v. Timek, C.A. No. 04-572 (NLH/AMD); Brooks v. City of Atlantic City, C.A. No.
09-3110 (NLH/AMD); Troso v. City of Atlantic City, C.A. No. 10-1566 (RMB/JS);
Castellani v. City of Atlantic City, C.A. No. 13-5848 (RMB/AMD); Ellaisy v. City
of Atlantic City, C.A. No. 13-5401 (JBS/AMD); Costantino v. City of Atlantic City,
C.A. No. 13-6667 (RBK/AMD); Caldwell v. Whitman, C.A. No. 94-5049 (JHR); Worrall
v. City of Atlantic City, C.A. No. 11-3750 (RBK/JS); Kelly v. City of Atlantic
City, C.A. No. 11-5976 (JBS/JS). The Court does not have access to the docket
entries for cases filed against Timek and Wheaten in state court.
14
See Lapella v. City of Atlantic City, C.A. No. 10-2454 (JBS/JS), Order dated
January 18, 2012 [Doc No. 64]; Worrall v. City of Atlantic City, C.A. No. 11-3750
(RBK/JS), Order dated April 5, 2012 [Doc. No. 29]; Jeffers v. City of Atlantic
City, C.A. No. 11-5975, Order dated September 18, 2012 [Doc. No. 23].

22

individuals who are pursuing relief for alleged constitutional
violations.

In any event, Atlantic City’s IA files will be

designated as “Confidential” pursuant to the terms of the parties’
Discovery Confidentiality Order [Doc. No. 11] and will not be widely
distributed or published during the discovery phase of the case. 15
The records will be reviewed by approved individuals and only for
the purpose of prosecuting or defending this lawsuit.
The third Frankenhauser factor examines whether government
self-evaluation and program improvement will be chilled by the
disclosure.

The answer is no.

disclosure

will

investigations.”

interfere
LB at 10.

Atlantic City argues, “Unlimited
with

future

internal

affairs

Atlantic City also argues that if its

IA files are released parties will not be “open, honest and fully
forth-coming.”

Id.

To the extent Atlantic City is referring to the

citizen population, it underestimates their motivation, will and
intelligence.

The Court believes the public recognizes that a

robust IA process and investigation is necessary to rein in “bad
apples.”

If the release of their names and complaints is necessary

to prevent this from occurring, the complaining public should view
this as a small price to pay for helping to root out excessive force
constitutional violations.

Faced with a choice of keeping their

identities secret and the possibility that their complaints could
be “swept under the rug,”

or disclosure of their complaints that

15

The Court is not weighing in on whether the IA records will remain confidential
at trial.

23

could motivate a police force to protect rather than violate
citizens’ rights, it is likely complainants would favor disclosure.
The Court also believes that most citizens agree with the Court that
“[s]unlight is said to be the best of disinfectants; electric light
the most efficient policeman.”

L. Brandeis, Other People’s Money

62 (1933).
To the extent Atlantic City posits that its police officers and
IA investigations will be “chilled” by the disclosure of its IA files,
the Court completely discounts the argument.

Atlantic City must

recognize that it is statutorily bound to follow the dictates of the
IAPP and that it would be violating the law if it does not comply
with the required mandates. Shame on any municipality if it “chills”
its investigation of potential police misconduct because it is
concerned

about

what

a

investigation would reveal.
the

case

law

favoring

thorough,

unbiased

and

objective

The Court’s analysis is consistent with

disclosure.

“The

balancing

test

for

determining whether the law enforcement privilege applies must be
conducted with an eye toward disclosure.”

O’Neill, 619 F.2d at 228;

Torres, 936 F. Supp. at 1210; Dawson v. Ocean Tp., C.A. No. 09-6274
(JAP), 2011 WL 890692, at *19 (D.N.J. March 14, 2011); see also U.S.
Nixon, 418 U.S. 683, 710 (1974)(“Whatever their origins, thee
exceptions to the demand for every man’s evidence are not lightly
created nor expansively construed, for they are in derogation of the
search for truth.”).

24

As to the fourth factor, the Court has not seen the requested
records and does not know if they contain evaluative data. However,
the

records

undoubtedly

contain

discoverable

surrounding the citizens’ complaints.

relevant

facts

Further, even if the records

contain “evaluative” materials they are not shielded and may be
discovered.

Scouler, 116 F.R.D. at 497.

As to the fifth factor to

examine, the plaintiff is not a criminal defendant and thus this
factor weighs in favor of disclosure.

As to the sixth factor, since

it appears that the requested investigations are complete this weighs
in favor of disclosure. 16

The seventh factor also weighs in favor

of disclosure since there is no indication that there have been any
intradepartmental disciplinary proceedings from the complaints.
The eighth factor weighs in favor of disclosure since this case is
not frivolous.

The ninth factor also weighs in favor of disclosure

because plaintiff has no other available source to obtain the
information contained in the requested records.

The tenth and final

Frankenhauser factor is perhaps most important.

That is, the

importance of the information to the plaintiff’s case.
discussed,
requested

this

factor

documents

are

overwhelmingly
vital

to

favors

disclosure.

plaintiff’s

fundamental fairness demands that they be produced.

16

As will be

Monell

The

claim;

Thus, for the

The latest two complaints involving Timek, dated March 20, 2012 and April 12,
2012, do not list a disposition. The fact that the investigations may be
continuing does not bar their production. O’Neill, 619 F.2d at 229 (“We know of
no Supreme Court case which provides support for such a broad amorphous Government
privilege.”).

25

foregoing reasons, the Court finds that the requested records are
not protected by the law enforcement privilege.
b. Relevance
Simply because the requested records are not privileged does
not necessarily require they be produced.

The records must also be

relevant to plaintiff’s claims or Atlantic City’s defense. The answer
to whether the requested documents are relevant is a resounding yes.
Given the discussion infra regarding plaintiff’s burden of
proof regarding his Monell claim, the Court is at a loss to find a
credible basis to argue that Timek and Wheaten’s IA files are
irrelevant.

Accord Scouler, 116 F.R.D. at 496 (“[T]here can be no

question of the relevancy of [the IA files] to the allegations of
the complaint, particularly where” the complaint alleges inadequate
supervision and training under '1983.).

The Court has no doubt that

the requested IA files are clearly relevant to plaintiff’s claim that
Atlantic City follows unconstitutional customs and that it failed
to properly train its officers as to the proper use of force.
the

moment

plaintiff

knows

that

at

least

78

complaints were made against Timek and Wheaten.

similar

At

citizen

Plaintiff also

knows that Atlantic City’s IA unit did not sustain any of the
complaints.

Plaintiff has made no secret of the fact that he intends

to argue that Atlantic City has been “deliberately indifferent” to
Timek and Wheaten’s violent propensities, and that Atlantic City’s
IA unit is a sham.

The information in the IA files is vital to these

26

allegations.

For example, the files are relevant to determine if

Atlantic City complied with its statutory duty to thoroughly,
impartially and objectively investigate all allegations against
Timek and Wheaten.

See IAPP at 4-5, 18.

The files are also relevant

to determining whether the defendant officers’ complainants were
personally interviewed and if all relevant records were examined.
Id. at 28.

In addition, the files will reveal if Atlantic City’s

IA unit prepared an “objective investigation report” recounting “all
of the facts of the case” and a “summary of the case” with “conclusions
for each allegation and recommendation for further action.”
45.

These

are

“critical

performance

standards

that

Id. at
must

be

implemented by every county and municipal law enforcement agency.”
Id. at 5.
Atlantic City will undoubtedly argue at trial that its IA
investigations were adequate.

For example, Atlantic City argues,

“it is imperative to note that Officer Timek has only one internal
affairs complaint that was sustained in March of 2006. Every other
complaint against Officer Timek and Officer Wheaten was either
"exonerated" or "not sustained.” LB at 6. Plaintiff is entitled to
test the defense.

It is disingenuous for Atlantic City to argue that

its officers’ statistics show no misconduct but yet deny plaintiff
the opportunity to test whether the evaluations of the complaints
against them were “real.”

The best way for plaintiff to test

Atlantic City’s defense is for plaintiff to review Timek and

27

Wheaten’s IA files.

The fact that Timek and Wheaten were not

disciplined for any of the complaints against them gives plaintiff
good cause to believe that Atlantic City’s IA investigations were
not “real,” “meaningful,” and “objective.”
“fishing expedition.”

Plaintiff is not on a

Plaintiff has a justifiable basis to believe

that Atlantic City’s IA investigations were bogus.

Plaintiff may,

therefore, focus discovery in this direction. Just as in Merman,
supra, the trier of fact should have an opportunity to review the
evidence to decide if the subject IA investigations were “valid and
just, or instead, they may fortify the façade of a superficial
investigatory process that, either by design or application, shields
officer misconduct.”

824 F. Supp. 2d at 593.

The Third Circuit has noted:
The [“IA”] investigative process must be real.
It must have some teeth. It must answer to the
citizen by providing at least a rudimentary
chance of redress when injustice is done. The
mere fact of investigation for the sake of
investigation does not fulfill a city’s
obligation to its citizens.
Beck, 89 F.3d at 974.

The requested IA files are directly relevant

to whether Atlantic City’s IA process is “real.”

The mere fact that

Atlantic City had an IA unit does not insulate it from liability.
Beck further noted:
Formalism is often the last refuge of
scoundrels; history teaches us that the most
tyrannical regimes, from Pinochet’s Chile to
Stalin’s Soviet Union, are theoretically those
with the most developed legal procedures. The

28

point is obviously not to tar the Police
Department’s good name with disreputable
associations, but only to illustrate that we
cannot look to the mere existence of superficial
grievance procedures as a guarantee that
citizens’ constitutional liberties are secure.
Protection of citizens’ rights and liberties
depends upon the substance of the [IA]
investigatory
procedures.
Whether
those
procedures [have] substance [is] for the jury’s
consideration.
Id.

Under the facts presented here, the requested IA files are fair

game for discovery because they are directly relevant to plaintiff’s
claim that Atlantic City’s IA process is a sham and that Atlantic
City failed to properly train its officers.

The requested files are

also directly relevant to Atlantic City’s defense that its IA
procedures are adequate.
The Third Circuit’s Beck, supra, decision is instructive.

In

Beck, like this case, the plaintiff alleged he was beat up by the
police (City of Pittsburgh), and he attempted to prove at trial that
the

governing

municipality

was

liable

under

Monell.

At

the

conclusion of plaintiff’s case the trial court granted Pittsburgh
judgment as a matter of law.

The Third Circuit reversed and held

there was sufficient evidence for a jury to decide that the IA process
was

“structured

to

curtail

disciplinary

action

and

stifle

investigations into the credibility of the City’s police officers.”
89 F.3d at 974.

The Court noted the jury could find that the police

officer’s statements were “given special, favorable consideration.”
Id.

In addition, that Pittsburgh’s IA investigations were “a façade

29

to cover the violent behavioral patterns of police officers under
investigation, to protect them from disciplinary action, and thereby
perpetuate the City’s custom of acquiescence in the excessive use
of force by its police officers.”

Id.

Discovery of the requested

IA files is relevant to whether plaintiff can support the same
arguments against Atlantic City in this case.

It is noteworthy that

the decision in Beck relied on “actual written civilian complaints.”
Id. at 975.

This is the same information that should be in Timek

and Wheaten’s IA files.
In

its

Beck decision

the

Third

Circuit

also

criticized

Pittsburgh’s process for investigating citizens’ complaints of
police misconduct because the testimony of witnesses “was rendered
weightless” if they accompanied the complainant at the time of the
incident, even if the IA investigator found the witness believable.
Id. at 973.

The Court also criticized Pittsburgh’s investigations

because the result of the investigations was based on the testimony
of the complainant and accused officer “thereby disposing of them
unfavorably for the complaining citizen.”

Id. at 973. In addition,

defendant was criticized because the IA process did not consider
“prior citizen complaints of an officer’s excessive use of force as
relevant in assessing a pending complaint, and manifested no interest
in probing the credibility of the officer under investigation.” Id.
Atlantic City’s IA files are relevant to whether plaintiff can
support the same assertions in this case.

30

As noted in Monaco, 2008

WL 8738213, at *7 (citation and quotation omitted), “police officers’
inclination to employ excessive force may be found to be a highly
predicable consequence of a municipality’s failure to investigate
excessive force complaints.”
The recent decision in another Atlantic City excessive force
case, Troso v. City of Atlantic City, C.A. No. 10-1566 (RMB/JS), 2013
U.S. Dist. LEXIS 163420 (D.N.J. Nov. 15, 2013), is a perfect
illustration of why plaintiff needs the requested IA files. 17

In that

'1983 case the plaintiff sued Wheaten, other Atlantic City police
officers, and Atlantic City, alleging he was subject to excessive
force.

Atlantic City filed a motion in limine to exclude its

Internal Affairs Summary Repots and Use of Force Report Summaries.
See C.A. No. 10-1566, Doc. No. 79.

It argued that the documents are

“wholly irrelevant to the issue of the alleged failure of Atlantic
City to train its officers.”

Id. at 8.

Atlantic City also argued

that the reports were irrelevant because they only contained
statistics with “no supporting facts or data,” and “no details about
each complaint.”

Id.

The plaintiff opposed the motion and argued,

like here, that Atlantic City condoned the use of excessive use of
force by its officers, and Atlantic City had “a policy of granting
police officers virtual impunity.”
No. 80.

Brief in Opposition at 8, Doc.

The plaintiff also submitted Atlantic City’s May 25, 2011

Certification attesting to the fact that since 2003 no Atlantic City
17

Trial is scheduled to start in two weeks.

31

police officer has been disciplined for the excessive use of force.
See Certification of Stacey Falcone, Doc. No. 80-2, Exhibit G.
remarkable

representation

was

made

even

though

Troso’s

This
brief

summarized Atlantic City’s IA statistics which revealed that for the
calendar years 2004 to 2008 a total of approximately 350 Internal
Affairs complaints for excessive force were made.

See Brief in

Opposition at 4-6.
Nevertheless,

despite

plaintiff’s

facially

compelling

statistics, the Court granted Atlantic City’s motion in limine.

The

Court noted that “it is clear” that when a party seeks to submit
statistical evidence showing the frequency of excessive force
complaints and the rate at which the complaints are sustained to
support a Monell claim under '1983, he “must show why those prior
incidents were wrongly decided and how the misconduct in those cases
is similar to that involved in the present action.”
(quoting Katzenmoyer, 2012 WL 6691746, at *1).

Id. at *1

The Troso decision

could not make it clearer why plaintiff is justifiably not satisfied
with just the IA statistical information that Atlantic City produced.
Plaintiff must know the details regarding the IA complaints and the
follow-up investigations to support his Monell claim.
Troso is not the only decision that supports plaintiff’s
insistence that he should not have to rely solely on Atlantic City’s
statistics to prove his Monell claim.

32

In Franks, supra, the Court

granted defendant Cape May County’s motion for summary judgment in
a '1983 excessive force case.

The Court explained:

Nor does Franks’s citation to statistics
showing
the
number
of
unsubstantiated
complaints support her allegations. Plaintiff
provides no evidence that those complaints that
were dismissed were improperly investigated and
should have been sustained. Rather than simply
reciting a number of complaints or offenses, a
plaintiff must show why those prior incidents
deserved discipline and how the misconduct in
those cases is similar to that involved in the
present action.
2010 WL 3614193, at *12 (citation and quotation omitted); see also
Katzenmoyer, 2012 WL 6691746, at *5 (granting summary judgment to
the City of Camden even though plaintiff offered evidence that
between 2003 and 2009 only one of 641 complaints against Camden police
officers was sustained).

Based on these decisions plaintiff can

reasonably anticipate that if he just relies on IA statistics
Atlantic City will seek dismissal of his Monell clam via summary
judgment. The requested discovery is relevant to prove plaintiff’s
Monell claim and to rebut Atlantic City’s anticipated defense.
The decision in Worrall, supra, is not sufficiently compelling
to deny plaintiff’s request for Timek and Wheaten’s IA files.

In

Worrell, an excessive force case remarkably similar to the instant
matter, the plaintiff alleged that Wheaten beat him up at the Dusk
Nightclub in Atlantic City on September 5, 2010.

The Court noted

that between September 19, 2008 and June 8, 2011, Wheaten was the
subject of 21 complaints.

Of the 21 complaints, 15 involved either

33

excessive force or some type of assault, standard of conduct, and
improper search.

2013 WL 4500583, at *3.

It is true that Atlantic

City’s motion for summary judgment was denied. (“Plaintiff has
provided a series of complaints against Officer Wheaten that is
sufficient to infer a pattern of violent behavior and unlawful
conduct.”

Id. at *4.).

However, the Court noted that plaintiff’s

evidence “teeters on the border of insufficiency.”

Id.

This

holding hardly gives plaintiff the comfort he needs to forego
requesting otherwise relevant discovery.

Another relevant decision

is Garcia v. City of Newark, C.A. No. 08-1725 (SRC), 2011 WL 689616
(D.N.J. Feb. 16, 2011).

In that case the Court denied Newark’s

summary judgment motion where one defendant officer was the subject
of 35 excessive force and false arrest complaints before the incident
in question, and six other defendants accounted for 55 complaints
of similar misconduct.

However, in addition to these statistics the

plaintiff submitted an expert report attesting to Newark’s practice
of paying little or no attention to citizen complaints.

Also, the

IA investigator in the case testified he never sustained an excessive
force allegation unless the Prosecutor found sufficient evidence to
bring a criminal charge.

Id.

at *4.

One take away from Worrall and Garcia on the one hand, and
Katzenmoyer and Troso on the other, is that the case law is far from
clear that plaintiff can merely rely on statistical information to
prove his Monell claim.

Not surprisingly, Atlantic City intends to

34

rely on the Katzenmoyer and Troso line of cases.
LB at 2, Doc. No. 44.

See October 4, 2013

(“The temporal proximity of the complaints

coupled with the quantity of complaints pertaining to [Timek and
Wheaten] are inadequate evidence that the City had notice of any
offending policy, procedure or custom.”)

Atlantic City cannot use

its statistics as a sword and a shield.

On the one hand Atlantic

City argues it satisfied its discovery obligations by producing the
statistics regarding the complaints made against Timek and Wheaten.
On the other hand, Atlantic City argues the statistics do not prove
plaintiff’s

Monell

claim.

Plaintiff

is

entitled

to

relevant

discovery regarding the details of similar citizen complaints
against Timek and Wheaten since this information is in Atlantic City
IA files, and the Court has ruled that the files are not privileged,
the files must be produced.

Since the IAPP requires that Timek and

Wheaten’s IA files should be available, the Court expects that all
of the requested files will be produced. IAPP at 47 (police
departments should maintain internal affairs investigative records
as they relate to a particular officer for the career of the officer
plus five years).

Plaintiff must be allowed to examine all relevant

evidence so that he will have a fair opportunity to present an
effective case at trial. Caver v. City of Trenton, 192 F.R.D. 154,
159 (D.N.J. 2000).

35

5. Scope of the IA Files to be Produced
As an alternative, Atlantic City argues the scope of its
production should be limited.

It argues that all post-incident

(August 7, 2010) IA files are irrelevant and that not all pre-incident
files are relevant.

These arguments are rejected.

a. Post-Incident Discovery
“It is well recognized that the federal rules allow broad and
liberal discovery.”
1999).

Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir.

The general scope of discovery is defined by Fed. R. Civ.

P. 26(b)(1):
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party’s claim or defense . . . .
Relevant
information need not be admissible at the trial
if the discovery appears reasonably calculated
to the discovery of admissible evidence.
Rule 26 does not limit discovery to evidence which tends to prove
plaintiff’s claim; nor does it require that the discovered evidence
be inherently probative to any matter at issue.

Rather, Rule

26(b)(1) provides that evidence relevant to any party’s claim or
defense is discoverable if it “bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or may
be in the case.”

Caver, 192 F.R.D. at 159(citing Oppenheimer Fund,

Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

While otherwise relevant

evidence may be barred from discovery on grounds of privilege or
burden, relevance remains a major factor in delineating proper

36

discovery.

See NL Indus., Inc. v. Commercial Union Ins. Co., 144

F.R.D. 225, 234 (D.N.J. 1992) (citing Nestle Foods Corp. v. Aetna
Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990)).

Because

discovery is not limited to evidence that is ultimately admissible,
“[t]he relevance inquiry is significantly broader at the discovery
stage than at the trial stage.”

Nestle Foods Corp. v. Aetna Cas.

& Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990);

Unicasa Marketing

Group, LLC v. Spinelli, C.A. 04-4173 (PGS), 2007 WL 2363158, at *2
(D.N.J.

Aug.

15,

2007)

(citing

Nestle

Foods

Corp.,

supra).

Nevertheless, the Court recognizes that discovery is not unlimited.
Parties

seeking

information

must

still

demonstrate

that

the

information sought is reasonably calculated to lead to the discovery
of admissible evidence.

Caver, 192 F.R.D. at 159.

As noted, a plaintiff who alleges municipal liability based on
acquiescence by a policymaker to a custom must prove the existence
of a custom that resulted in a constitutional violation, and that
said custom is so “permanently and well-settled as to virtually
constitute law.”
omitted).

McTernan, 564 F.3d at 658 (citation and quotation

Atlantic City is correct that evidence of subsequent

constitutional violations cannot be used to show its knowledge of
an unconstitutional custom or policy at the time of plaintiff’s
August 7, 2010 incident.
39, 41 (E.D.N.Y. 2006).

See Barrett v. City of New York, 237 F.R.D.
Subsequent incidents, however, may be

relevant to show a continuous pattern that supports a finding of an

37

accepted custom or policy.

See Beck, 89 F.3d at 972 (finding that

post-incident events “may have evidentiary value for a jury’s
consideration whether [policymakers] had a pattern of tacitly
approving the use of excessive force”).

They are also relevant to

issues of “pattern, intent, and absence of mistake.”

Barrett, 237

F.R.D. at 41.
In Monaco, supra, the Court agreed that post-incident evidence
is relevant to proving a pre-incident custom.
*8 (collecting cases).

In fact, the Court stated that the evidence

could be “highly probative.” Id. (citation
good

grounds

to

2008 WL 8738213, at

permit

plaintiff’s

omitted).

request

for

There are

discovery

of

post-incident events because otherwise “plaintiff may encounter
difficulties . . .,

because of the lack of available credible

witnesses and the avenues for dispute and distraction over the actual
facts of each specific incident.” Id. (citation and quotation
omitted).

Thus,

where

alleged

police

abuse

is

particularly

conspicuous, “the disposition of the policymaker may be inferred from
his conduct after the events that are the subject of the lawsuit.”
Id.

(citation and quotation omitted).

Here, a substantial number

of excessive force complaints were made against Timek and Wheaten
with no recorded discipline.

If these allegations of serious

misconduct received little attention and action from Atlantic City,
the jury could conclude “that it was accepted as the way things are

38

done and have been done in the City.” Id. (quoting Grandstaff v. City
of Borger, Tex., 767 F.2d 161, 171 (5th Cir. 1985). 18
Jurisdictions outside New Jersey and the Third Circuit also
support the view that post-incident events may be relevant to a Monell
claim.

See Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir.

1997) (“Post-event evidence is not only admissible for purposes of
proving the existence of a municipal defendant’s policy or custom,
but is highly probative with respect to that inquiry.”) Foley v. City
of Lowell, Mass., 948 F.2d 10, 14 (1st Cir. 1991) (“[A]ctions taken
subsequent to an event are admissible if, and to the extent that,
they provide reliable insight into the policy in force at the time
of the incident.”); Bordanaro v. McLeod, 871 F.2d 1151, 1167 (1st
Cir. 1989) (“Post-event evidence can shed some light on what policies
existed in the city on the date of an alleged deprivation of
constitutional right.”).

Like its pre-incident conduct, Atlantic

City’s post-incident conduct is relevant to whether it has a custom
of condoning excessive force by its officers and whether it has a
longstanding custom of conducting sham IA investigations designed
to insulate police officers from discipline or criticism.

“Events

after a disputed incident often shed light both on the intent of
participants,
behavior.”

and

on

institutional

or

individual

patterns

of

Montalvo v. Hutchinson, 837 F. Supp. 576, 581 (S.D.N.Y.

18

Monaco noted that the Fifth Circuit held that Grandstaff only applies to instances
of “extreme” police misconduct. 2008 WL 8738213, at *8 n.6 (citing Snyder v.
Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998).

39

1993) (declining to find files concerning subsequent occurrences of
alleged police misconduct inherently irrelevant).
b. Pre-Incident Discovery
Atlantic City argues it should not have to produce all of Timek
and Wheaton’s pre-incident IA files.

The Court disagrees.

The

files are relevant to determining how entrenched and longstanding
Atlantic

City’s

alleged

unconstitutional

custom

existed.

Supervisory liability may be established “by showing a supervisor
tolerated past or ongoing behavior or failed to train, supervise,
and discipline subordinates.”

Grande v. Keansburg Borough, C.A. No.

12-1968 (JAP), 2013 WL 2933794, at *10 (D.N.J. June 13, 2013)(citing
Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 72
(3d Cir. 2011)).

In this vein the requested pre-incident files are

relevant to plaintiff’s punitive damage claims against Timek and
Wheaten.

Plaintiff is entitled to know if his encounter with Timek

and Wheaten was an isolated instance or if it was consistent with
a longstanding and continuing practice.

In addition, the requested

IA files are relevant to finding out when and if Atlantic City was
on notice of its police officers’ alleged excessive force problems.
Accord Foley v. Boag, C.A. No. 05-3727 (SRC), 2006 WL 6830911 (D.N.J.
May 31, 2006)(ordering the production of records dating back ten
years because, inter alia, that is the time the defendant officer
was

with

the

police

department);

Barrett,

237

F.R.D.

at

4

(investigations older than ten years may be relevant to establish

40

a pattern or knowledge, and should not be barred from discovery based
solely on their age).
The decision in Johnson v. City of Philadelphia, No. CIV. A.
94-1429, 1994 WL 612785 (E.D. Pa. Nov. 7, 1994), does not compel a
different result.

In Johnson the court limited discovery to the five

years immediately preceding the alleged constitutional violations.
Id. at *11. In that case, however, the defendants argued that the
plaintiffs’ request for documents was “overly broad” and “unduly
burdensome.”

Id.

In

addition,

the

disputed

material

was

objectively “voluminous,” involving personnel files and performance
evaluations covering a period of up to twenty years.

Id.

Although

the court in Johnson limited discovery to materials preceding the
subject incident, the court affirmed the relevancy of all disputed
documents (id. at *12), and gave plaintiffs the opportunity to
discover the restricted material for good cause shown.

Id. at *11.

To be sure, the Court’s Opinion should not be read as a free
pass to request all pre- and post-incident IA files in every case
alleging police misconduct.

Every case is different and a party’s

discovery requests must be evaluated pursuant to the standards set
forth in Rules 26(b) and 26(b)(2)(C).

See Jones v. DeRosa, 238

F.R.D. 157, 164 (D.N.J. 2006)(“The executive or law enforcement
privilege doctrine in federal courts is left to the courts to develop
on a case-by-case basis.”); Forrest v. Corzine, 757 F. Supp. 2d 473,
477 (D.N.J. 2010)(Magistrate Judges have wide discretion to manage

41

discovery.).

However, even though the Court is not weighing in on

the merits of the case, plaintiff’s claims are not frivolous.

The

defendant officers have a long history of complaints without any
discipline, which raises a legitimate question about the efficacy
of Atlantic City’s IA process.

Given Atlantic City’s expected

vigorous defense, fairness compels the Court to conclude that
plaintiff is entitled to all the discovery he seeks.

Atlantic City

has not argued that it is burdensome to collect and produce the
requested records.

Even if it did, however, the weighing process

lands in plaintiff’s favor.

See Torres, 936 F. Supp. at 1213

(rejecting defendant’s arguments that it should not have to review
1200 IA files).
6. Protective Order
The Court agrees with Atlantic City that precautions should be
taken to protect the confidentiality of Atlantic City’s IA files.
The files should be designated as “Confidential” pursuant to the
Discovery Confidentiality Order entered in the case. Although the
files are discoverable, at this stage of the case their distribution
should be limited to authorized individuals.

Also, the files should

only be used for the purpose of prosecution or defense of this action
and not for any business, commercial, competitive, personal or other
purpose.

The Court also agrees that the personal information of

Timek and Wheaten is irrelevant and may be redacted.

This includes

social security numbers, addresses, telephone numbers, driver’s

42

license numbers, financial information, and information pertaining
to their family members and friends (unless they are relevant
witnesses).
or

otherwise

If Atlantic City or Timek request to seal the IA files
restrict

public

access,

they

shall

follow

the

requirements in L. Civ. R. 5.3(c).
7. In-Camera Review
Last, the Court declines Atlantic City’s invitation to review
its IA files in camera.

In United States v. Zolin, 491 U.S. 554

(1989), the Supreme Court held that a district court may, in some
circumstances also require an in camera review of documents.
However, it held that the court should not conduct such a review
solely because a party begs it to do so.

Id. at 571.

There must

first be a sufficient evidentiary showing which creates a legitimate
issue as to the application of the privilege asserted. Id. at 571-72.
If a party requesting in camera review has not provided sufficient
evidence to support a reasonable belief that the requested materials
are not discoverable, the request should be denied.

Id.

Atlantic

City has not made this showing so its request for an in camera review
is denied.
Conclusion
Thus far the record has demonstrated that not one of the hundreds
of excessive force complaints lodged against Atlantic City’s police
officers has been “sustained.”

In particular, the two officer

defendants, Timek and Wheaten, have had scores of complaints lodged

43

against them, none of which resulted in any discipline.

This is true

even though the officers regularly appear in this court as defendants
in '1983 excessive force cases,

several of which are remarkably

similar to the instant matter.
Atlantic City has taken a disingenuous discovery position.

It

argues that plaintiff is only entitled to review Internal Affairs
statistics and then it argues the statistics in and of themselves
cannot establish Monell liability.

Atlantic City’s discovery

argument is soundly rejected by this Court and the applicable case
law.
The Court, of course, is not ruling on the merits of plaintiff’s
claims.

The Court is also not ruling that Atlantic City’s Internal

Affairs documents are admissible at trial.

The Court is instead

ruling that since the requested documents are not privileged, and
they are relevant for discovery purposes, they must be produced.

The

documents are directly relevant to plaintiff’s Monell claim and they
will reveal whether plaintiff can support his argument that Atlantic
City’s Internal Affairs process and investigations are a sham.

In

addition, plaintiff expects the documents will reveal if, how, and
why Atlantic City’s police officers, and Timek and Wheaten in
particular, repeatedly use excessive force with impunity.

44

Accordingly, for all the foregoing reasons, plaintiff’s Motion
to Compel Defendant Officers’ Internal Affairs Files is GRANTED.

An

appropriate form of Order consistent with this Opinion will be
entered.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: November 27, 2013

45