GROARK v. TIMEK et al

Filing 72

OPINION. Signed by Magistrate Judge Joel Schneider on 7/17/2014. (tf, )

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.
O P I N I O N1
The present discovery dispute follows up on the Court’s
earlier decision (Groark v. Timek, et al.,
2013

WL

Atlantic

6199187
City

to

(D.N.J.
produce

Nov.
all

27,
of

F. Supp. 2d

2013)(“Opinion”),
its

Internal

,

directing

Affairs

(“IA”)

files for defendant Police Officers Frank Timek and Sterling
Wheaton. 2
Atlantic

Plaintiff
City’s

IA

now

files

requests
from

2003

the
to

production
the

of

present.

all
For

of
the

reasons to be discussed, plaintiff’s motion is GRANTED in part
and

DENIED

in

part.

Although

the

Court

denies

plaintiff’s

request for all of Atlantic City’s IA files, it directs Atlantic

1

In order not to delay discovery, on June 19, 2014 [Doc. No. 70] the
entered its Order granting and denying in part plaintiff’s Motion to
Discovery [Doc. No. 55] that is addressed herein. This Opinion sets
the Court’s reasoning.
2
The incident in question occurred on August 7, 2010. The produced
were dated from May 2001 to the present.
1

Court
Compel
forth
IA files

City to

produce

a

“representative

sample”

of

the

files

from

January 1, 2003 to August 7, 2011 (one year post-incident). 3
Background
The

detailed

background

discussion

from

the

Court’s

November 27, 2013 Opinion is incorporated by reference. In brief
summary,

plaintiff

alleges

that

on

August

7,

2010,

Officers

Timek and Wheaton beat him up without justification at the Dusk
Nightclub

in

Caesar’s

Casino,

Atlantic

City,

New

Jersey.

Although plaintiff was arrested and charges were pressed, all
charges

were

subsequently

dismissed.

Similar

to

a

spate

of

other lawsuits filed against Atlantic City, plaintiff’s April 2,
2012 complaint includes a Monell claim. 4
During

discovery

Atlantic

City

produced

the

defendant

Officers’ “Index Cards”, which listed the dates, nature, and
disposition of the internal affairs complaints alleged against
Timek and Wheaton. This discovery revealed, inter alia, that
from

May

2001

collectively

the

to

the

subject

present,
of

scores

3

Timek
of

and

Wheaton

complaints

were

similar

to

Plaintiff’s motion raised three (3) other disputes that the Court addressed
at oral argument. Plaintiff’s request for additional IA policies and several
missing IA files was denied as moot since the requested documents were
produced after plaintiff filed his motion. The Court also denied without
prejudice plaintiff’s request for Atlantic City’s monthly and quarterly IA
reports. The Court did not deem the production of these reports necessary
because defendant already produced its yearly IA statistics. Plaintiff may
re-file his request if he later determines that the yearly statistics are
irreconcilable.
4
The known federal cases involving Timek and/or Wheaton are summarized in the
Court’s November 27, 2013 Opinion. 2013 WL 6199187, at *10 n.13. Another
case involving Timek to add to the list is Adams v. City of Atlantic City,
C.A. No. 13-7133 (JBS/AMD).
2

those asserted here. Atlantic City did not sustain any of the
complaints

and

the

defendants

were

never

disciplined.

Over

Atlantic City’s objections, the Court Ordered Atlantic City to
produce copies of all of Timek and Wheaton’s IA files as the
Court determined they are relevant to plaintiff’s Monell claim.
To further support its Monell claim, plaintiff now asks the
Court to direct Atlantic City to produce all of its IA files
from 2003 to the present. The Court estimates approximately 2000
files were opened, but it does not know for sure how many files
still exist. Plaintiff argues he needs the requested files to
show

that

Atlantic

City

has

a

“custom”

of

not

abiding

by

mandated IA policies and tolerating its officers’ misconduct,
and

that

Atlantic

City

was

deliberately

indifferent

to

its

custom of conducting deficient IA investigations. Brief at 3,
Doc. No. 55. Plaintiff argues, “to prove Atlantic City has a
long-standing custom of conducting investigations as pretense,
Plaintiff requires more than [Timek and Wheaton’s] files.” Id.
Otherwise, plaintiff argues, Atlantic City can argue Timek and
Wheaton

were

exceptions

to

its

normal

practice.

Plaintiff

argues that “[o]nly by reading, cataloging, and analyzing the
substance of [all of Atlantic City’s IA] files can plaintiff
demonstrate the real breadth and depth of the Monell violations
of Defendant Atlantic City.” Id. at 4. Plaintiff supports his

3

motion with the seven (7) page letter report of his expert,
Richard Rivera.
Atlantic City opposes plaintiff’s request. It argues the
requested IA files are not relevant to plaintiff’s claims and
the Court should not consider Rivera’s report. Atlantic City
argues it should only have to produce the IA files for the
defendant officers. Further, it argues that if it has to produce
IA files from other officers they should be limited to instances
where there were complaints about excessive force, false arrest
or

malicious

prosecution,

since

these

are

the

complaints

plaintiff is making in the case. Atlantic City also argued it
would be burdensome to produce the requested files.
Discussion
As

the

Court

sees

it,

three

main

questions

must

be

answered. First, in order to prove Atlantic City has a custom of
conducting

deficient

IA

investigations

and

tolerating

its

officers’ misconduct, in particular the use of excessive force,
is

plaintiff

limited

to

only

defendants Timek and Wheaton?

reviewing

the

IA

files

for

Second, if other police officers’

files are produced should they be limited to complaints about
excessive force, false arrest and malicious prosecution?

Third,

should the Court direct Atlantic City to produce all of its IA
files from 2003 to present? As will be explained, the answer to
questions one and two is no.

As to the third question, although
4

Atlantic City will not be directed to produce all of its IA
files from 2003 to the present, it will be directed to produce a
representative sample of its files.
1.

IA Files
Wheaton

for

Officers

Other

than

Defendants

Timek

and

As discussed in detail in its November 27, 2013 decision,
plaintiff

is

arguing,

inter

alia,

that

Atlantic

City

has

a

custom of conducting deficient internal affairs investigations
and

tolerating

the

misconduct

of

its

police

officers.

See

Monell v. Department of Social Services of City of New York, 436
U.S.

658

(1978).

Specifically,

plaintiff

alleges

in

February 22, 2013 amended complaint:
57. Defendant Atlantic City, through its agents and
employees, promulgated customs, policies, practices,
ordinances, regulations, and directives that caused
the false arrest of the Plaintiff.
. . .
59. Defendant Atlantic City, through its agents and
employees, promulgated customs, policies, practices,
ordinances, regulations, and directives that caused
the use of excessive force against the Plaintiff.
60. Defendant Atlantic City has been deliberately
indifferent to the violent propensities of its police
officers, the individually named Defendant police
officers in particular.
Plaintiff’s amended complaint also alleges:
COUNT IV
. . .

5

his

89. Defendant Atlantic City, through its police
department, established, knew of, and acquiesced to
policies, procedures, and customs that Defendants knew
or should have known would lead to a violation of New
Jersey citizens’ constitutional rights.
90. Defendant Atlantic City, through its police
department, acted with deliberate indifference to the
consequences
when
establishing
and
enforcing
inadequate policies, procedures, and customs.
91. Defendant Atlantic City, through its police
department,
established
inadequate
policies,
procedures, and customs relating to the stationing and
conduct of its officers at Atlantic City nightclubs.
92. Defendant Atlantic City, through its police
department,
established
inadequate
policies,
procedures, and customs with regard to when an officer
may effectuate an arrest, the amount of force
permitted to effectuate that arrest, the grounds
required
to
pursue
criminal
charges
against
an
individual, and when an officer should seek medical
treatment for an assault victim.
As to plaintiff’s unconstitutional custom claim, the Court
previously wrote:
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. … Custom may
also be established by proof of knowledge
and acquiescence. …
The Supreme Court has
recognized that where a violation of 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.
Groark, 2013 WL 6199187, at *5 (citations omitted). Importantly:
Simply showing that plaintiff has suffered a
deprivation of constitutional rights will
not alone permit an inference of municipal
6

culpability
and
causation.
…
Instead,
plaintiff
must
demonstrate
that
the
municipal action was taken with deliberate
indifference
to
its
known
or
obvious
consequences…. A showing of simple or even
heightened negligence will not suffice. … 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.
Id. at *6. (citations and quotations omitted).
The

Court

agrees

with

Atlantic

City

that

plaintiff’s

complaint and defendants’ defenses frame the scope of relevant
discovery.

See Toth v. Cal. Univ. of Pa., No. 09-6192, 2011 WL

2436138, at *2 (W.D. Pa. June 15, 2011) (“The complaint and its
claims circumscribe the scope of discovery.
claims

that

request

discoverability

made.”).

is

It is against these

determined

as

given

the

Nonetheless,

to

each

discovery

allegations

in

plaintiff’s amended complaint, and the case law as summarized
above,

the

Court

rejects

Atlantic

City’s

argument

that

only

Timek and Wheaton’s files for excessive force, false arrest and
malicious

prosecution

are

relevant.

plaintiff’s claims too narrowly.

Atlantic

City

reads

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

7

law.

Custom may also be established by proof of knowledge and

acquiescence. Groark, 2013 WL 6199187, at *5. Plaintiff’s claims
against Atlantic City do not just focus on how Atlantic City
addresses

complaints

plaintiff

alleges

established,
procedures

against

that

the

acquiesced
as

to

Timek
Atlantic

and

all

and

knew

police

Wheaton.

City

Police

that

officers,

its
not

Instead,
Department

policies
just

and

Timek

and

Wheaton, would violate citizens’ constitutional rights. Amended
&89.

Complaint

Thus,

since

plaintiff’s

claims

are

not

just

limited to how Atlantic City acts vis-à-vis Timek and Wheaton,
the actions and IA files of other officers are relevant for
discovery
alleging

purposes.
the

Plaintiff

entirety

of

has

made

Atlantic

it

clear

City’s

IA

that

he

process

is

is

a

pretense or sham, not just as it relates to Timek and Wheaton.
For example, plaintiff argues that although Timek and Wheaton’s
files demonstrate Atlantic City was deliberately indifferent to
their

misconduct,

point:

the

City

plaintiff
of

is

Atlantic

“seeking
City

to

has

prove
been

a

broader

deliberately

indifferent to all officer misconduct and has a long-established
custom

of

permitting

officer

misconduct.”

Motion

at

&23

(emphasis added). This being the case, plaintiff is not limited
to

only

discovering

IA

files

regarding

Timek

and

Wheaton.

Plaintiff is entitled to know if the IA process as to Timek and

8

Wheaton

was

an

aberration,

or

if

it

was

reflective

of

the

customs, policies and procedures that apply to all officers. 5
Further,

it

is

plain

that

plaintiff

is

entitled

to

discovery relevant to Atlantic City’s defenses. See Fed. R. Civ.
P.

26(b)(1)(“Parties

privileged

matter

may

that

obtain

is

discovery

relevant

to

regarding

any

party’s

any

non-

claim

or

defense.”). In Worrell v. City of Atlantic City, C.A. No. 113750 (RBK/JS), 2013 WL 4500583, at *4 (D.N.J. Aug. 20, 2013),
Atlantic City argued that because the plaintiff only provided
evidence of the violent propensities of one police officer, he
could not establish a custom as a matter of law. Although the
court rejected this argument, Atlantic City may raise the same
defense in this case. Thus, the IA files of other officers are
relevant because plaintiff is entitled to know if the allegedly
deficient IA investigations relating to Timek and Wheaton were
aberrations,

or

if

they

were

reflective

of

department

wide

deficiencies. Plaintiff is clearly entitled to discovery that is
relevant to rebut a defense Atlantic City may raise.
This

Court

is

not

alone

in

directing

Atlantic

City

to

produce the IA files of police officers other than those of the
named defendants.
No.

12-4963

See Woodall v. City of Atlantic City, C.A.

(RBK/AMD),

October

25,

2013

Order,

Doc.

No.

23

(directing Atlantic City to produce all of its non-party police
5

Plaintiff argues the complaints against Timek and Wheaton comprise only 5% of
the total complaints for the years 2003 to 2010. Brief at 3.
9

officers’
2010,

internal

which

arrest/false

affairs

related

files

to

from

August

excessive

imprisonment,

malicious

use

2006

August

force,

of

to

false

prosecution,

and

assault

and battery); see also Foley v. Boag, C.A. No. 05-3727 (SRC)
2006

WL

6830911,

production

of

all

at

*3

(D.N.J.

internal

May

affairs

31,

2006)(requiring

records

and

complaints

against all police officers in the defendant municipality for
ten (10) years); Reid v. Cumberland County, C.A. No. 11-5841
(NLH/AMD), March 18, 2013 Order at 12, Doc. No. 71. (“In light
of the nature of the claims against the County, the Court finds
information

regarding

past

instances

of

excessive

force

of

Defendant Officers and other officers to be clearly relevant to
Plaintiff’s Claims.”); Torres v. Kuzniasz, 936 F. Supp. 1201,
1211

(D.N.J.

civilian

1996)(“[S]upervisory

complaints

are

highly

opinions

relevant

to

and

responses

proving

to

municipal

liability under 42 U.S.C. '1983 for a municipal entity’s alleged
failure

to

adequately

brutality.”).

Therefore,

holding

plaintiff

that

respond
the
may

to

complaints

Court

is

obtain

the

on
IA

solid
files

of

police

footing
of

in

police

officers other than the named defendants.
2.

IA Files for Factually Dissimilar Complaints
Plaintiff is not limited to only discovering IA files for

complaints regarding excessive force, false arrest and malicious
prosecution. Although other types of serious complaints may not
10

be factually similar to the subject August 7, 2010 incident, the
mandated IA investigatory procedures are the same. The required
statutory

and

discussed

in

regulatory
detail

in

guidelines

the

Court’s

for

IA

earlier

investigations
Opinion

do

not

differentiate between the types of complaints made. An analysis
of the investigatory procedures and practices used in factually
dissimilar claims will assist plaintiff to determine the depth
and

scope

of

Atlantic

City’s

alleged

inadequate

IA

investigations. 6 The facts of the underlying offense do not need
to be identical for plaintiff to analyze whether Atlantic City
has

an

unconstitutional

custom

of

conducting

deficient

IA

investigations and tolerating its police officers’ misconduct.
For

discovery

purposes,

and

under

the

circumstances

present

here, the Court does not accept the notion, for example, that
Atlantic City’s IA investigations for complaints about improper
arrests, differential treatment, and “other criminal violation,”
are irrelevant to plaintiff’s claims in the case. The Federal
Rules of Civil Procedure “allow broad and liberal discovery.”
Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir. 1999). Courts have
interpreted the federal rules to mean that discovery encompasses
“any matter that bears on or reasonably could lead to other

6

Atlantic City’s IA complaints are statistically organized into the following
eight (8) categories: Excessive Force, Improper Arrest, Improper Entry,
Improper Search, Differential Treatment, Demeanor, Other Rule Violation and
Other Criminal Violation. See Plaintiff’s Motion, Exhibit E (Atlantic City’s
Internal Affairs Summary Report Forms from 2000 to 2012).
11

matters that could bear on any issue that is or may be in the
case.”

Kopacz v. Del. River and Bay Auth., 225 F.R.D. 494, 496

(D.N.J.

2004).

The

Court

finds

nothing

incongruous

about

plaintiff arguing that if IA investigations regarding factually
dissimilar

serious

complaints

are

deficient,

that

this

is

relevant to whether Atlantic City’s IA investigations regarding
excessive

force

complaints

are

also

deficient

and

whether

Atlantic City tolerated its officers’ misconduct.
If plaintiff was on a “fishing expedition” the Court would
not hesitate to limit his discovery requests. See Fed. R. Civ.
P. 26(b)(2)(C)(iii)(the Court must limit the extent of discovery
if it determines the burden or expense of the proposed discovery
outweighs its likely benefit). However, this is not the case.
The non-frivolous nature of plaintiff’s claims is evidenced by
the fact that scores of complaints have been asserted against
Timek and Wheaton and they have never been disciplined. Further,
plaintiff’s counsel represents that only a miniscule percentage
of Atlantic City’s reported excessive force complaints have been
sustained or resulted in any discipline. 7 Although in and of
itself these statistics may not be enough to impose liability on
Atlantic

City

(see,

e.g.,

Katzenmoyer

v.

Camden

Police

Department, C.A. No. 08-1995 (RBK/JS), 2012 WL 6691746, at *5
7

As plaintiff noted at oral argument, without explanatory testimony it is
difficult to reconcile the reported numbers. This is due in part to the fact
that different forms were used for different years, and not all forms contain
the same information.
12

(D.N.J. Dec. 21, 2012); Troso v. City of Atlantic City, C.A. No.
10-1566 (RMB/JS), 2013 WL 6070028, *1 (D.N.J. Nov. 15, 2013)),
they lend credence to plaintiff’s claims for more discovery.
Further, the adequacy of Atlantic City’s IA process was
called into question in a recent decision. Cordial v. Atlantic
City, C.A. No. 11-01457 (RMB/AMD), 2014 WL 1095584 (D.N.J. March
19, 2014). There, like this case, the plaintiff alleged “that
Atlantic

City

acquiescing

should

in

its

be

held

liable

officers’

due

use

of

to

its

custom

of

excessive

force

as

demonstrated by its failure to conduct adequate Internal Affairs
(“IA”)

investigations

into

excessive

force

complaints

against

police officers.” Id. at *5. After acknowledging that this is a
recognized theory of municipal liability (id.), the Court denied
Atlantic City’s motion for summary judgment. The Court held that
the plaintiff “presented evidence from which a reasonable jury
could infer that [Atlantic City’s] IA investigation process is
designed to insulate the accused officers from penalty.” Id. at
*6. The decision noted that Atlantic City’s IA reports reflected
that the complainant was not always interviewed, officers were
only

asked

statements
statements.”

to

provide

a

were

given

much

Id.

written
greater

statement,
weight

and
than

officer
civilian

The Court held:

From this evidence, a reasonable jury could find that
the IA investigations were insufficient or inadequate
and
that
Atlantic
City
exhibited
deliberate
13

indifference to the risk that its officers would use
excessive force in a manner similar to that alleged
here.
Id.
Plaintiff’s expert submission also supports his request for
the internal affairs files of non-defendant officers and for
factually dissimilar complaints. See Plaintiff’s Motion, Exhibit
C, February 14, 2014 Letter of Richard Rivera, LLC (“Letter”).
Rivera

is

plaintiff’s

police

practices

expert. 8

Rivera

is

a

private consultant regarding police conduct and operations, and
professes to having collected the county’s largest database of
police internal affairs dispositions and use of force incident
reports. Letter at 2. Rivera opines that his review of “entire
case

files

is

impartiality
investigation.”

the
and

best

methodology

thoroughness

to
of

gauge
an

the

quality,

administrative

Id. Further, he concluded:

Conclusions may be drawn as to the handling of citizen
complaints against these two officers [Timek and
Wheaton] based on what has been presented thus far.
However, it remains unknown how Internal Affairs, the
Chief of Police and City of Atlantic City act when a
complaint is sustained, when other police officers are
the subject of administrative review or when training,
policy and supervision issues are raised. In order to
determine to what extent those matters differ from
Timek’s and Wheaton’s it is essential to review all
Internal Affairs investigative files where other
officers were the subject.
Id. at 7.

8

Rivera’s curriculum vitae is attached as Exhibit C to plaintiff’s motion.
14

In

addition,

Rivera’s

report

evidences

the

non-frivolous

nature of plaintiff’s Monell claim. Rivera reviewed seventy (70)
IA files involving Timek and Wheaton. Motion at &18. Based on
this review Rivera concluded there was a “catastrophic failure
of

[Atlantic

thoroughly

City’s]

investigate

Internal
[the]

Affairs

subject

to

impartially

officer(s)

of

and

citizen

complaints.” Letter at 3. He opines that Atlantic City’s “police
officers engaged in misconduct or criminal acts with impunity
and little or no oversight of the officers of Internal Affairs.”
Id.

He also opines that, “[t]he pattern of inadequate and biased

(in favor of subject officers) IA investigations allowed Timek
and Wheaton to continue their misconduct unchallenged throughout
their

careers

culminating

in

more

than

six

dozen

IA

cases

adjudicated with “not sustained” or “exonerated” investigative
findings.” Id. Rivera also concluded that Atlantic City’s IA
findings involving Timek and Wheaten “are deliberately flawed
and

intentionally

coincides

with

misconduct

and

inadequate
an

in

favor

organizational

corruption.”

Id.

at

of

culture
4.

the

officers

that

Rivera

encourages

concludes

report with the following comment:
Conclusions may be drawn as to the handling of citizen
complaints against these two officers [Timek and
Wheaton] based on what has been presented thus far.
However, it remains unknown how Internal Affairs, the
Chief of Police and City of Atlantic City act when a
complaint is sustained, when other police officers are
the subject of administrative review or when training,
15

and

his

policy and supervision issues are raised. In order to
determine to what extent those matters differ from
Timek’s and Wheaton’s, it is essential to review all
Internal Affairs investigative files where other
officers were the subject.
Id. at 7.
To be sure, the Court is not ruling that in every '1983
excessive force case the plaintiff is entitled to discovery of
IA

files

of

non-defendant

officers

and

complaints

factually

dissimilar to the plaintiff’s claims. Every discovery dispute
has to be decided on its own facts. This case warrants broad
discovery because of the nature and seriousness of plaintiff’s
claims.

Plaintiff was allegedly seriously injured, his claims

are not frivolous, and in plaintiff’s own words he is making a
“full frontal assault” on Atlantic City’s IA process. Whether
plaintiff will be successful or not on the merits is not for
this

Court

to

decide.

This

Court

just

has

to

decide

the

appropriate scope of discovery. See In re Fine Paper Antitrust
Litigation,

685

F.2d

810,

817

(3d

Cir.

1982)(“[M]atters

of

docket control and conduct of discovery are committed to the
sound discretion of the district court.”). The Court will not
limit plaintiff’s discovery as Atlantic City suggests given the
allegations in plaintiff’s pleadings, plaintiff’s theory of the
case, and plaintiff’s supporting case law and preliminary expert
report.

16

Atlantic

City’s

argument

that

the

Court

should

ignore

Rivera’s preliminary report is rejected. (“Plaintiffs proposed
expert has audaciously written to this Court…. This Court should
not

consider

this

correspondence,

inappropriate.” Brief at 9.).
to

be

plaintiff’s

final

as

it

is

premature

and

Rivera’s report was not intended

expert

report. 9

Instead,

plaintiff

submitted the analysis “as prima facie evidence of an endemic
problem.”

Brief at 4.

The Court, of course, is not deciding

whether Rivera’s opinions are true or not. That decision will be
made by the final fact finder. However, the Court is justified
in

relying

upon

Rivera’s

preliminary

report

to

decide

that

plaintiff’s claims are not frivolous and that plaintiff is not
on a fishing expedition. Indeed, it is likely that if plaintiff
did not serve Rivera’s preliminary report Atlantic City still
would have argued that plaintiff was on a “fishing expedition.”
At least with a preliminary expert report plaintiff can dispel
the

notion

that

he

is

making

up

an

argument

out

of

“whole

cloth.”
Atlantic City argues Rivera’s report should be disregarded
because
However,

it
in

is

not

ruling

admissible
on

a

in

discovery

evidence.
motion

Brief

the

Court

limited to only relying upon admissible evidence.
9

at

9-10.
is

not

See Cooper

Indeed, in Cordial the Court noted that the failure to provide an expert
report on Atlantic City’s police procedures or statistical analysis of IA
complaints was not fatal to the plaintiff’s Monell claim. 2014 WL 1095584, at
*7.
17

Hospital/University Medical Center v. Sullivan, 183 F.R.D. 119,
129 (D.N.J. 1998). Atlantic City also argues, “the Court should
not

consider

Plaintiff’s

expert

opinion

without

affording

Defendants’ expert the opportunity to correspond to the Court
all

the

reasons

why

the

Atlantic

City

Police

Department’s

Internal Affairs process is not a ‘sham’.”

Brief at 10. The

Court

to

was

always

ready,

able

and

willing

consider

any

submission Atlantic City served to oppose plaintiff’s motion.
However, the Court will not hold up discovery pending Atlantic
City’s expert’s analysis. Atlantic City has had more than a fair
opportunity to submit whatever evidence and arguments it wanted
to in response to plaintiff’s motion.
Atlantic
arguments

City’s

is

also

opposition
not

to

persuasive.

plaintiff’s
Atlantic

relevancy

City

argues,

“Internal Affairs files that have nothing to do with Plaintiff
or

Plaintiff’s

claims

and/or

are

of

a

nature

completely

different than that of plaintiff’s claims are irrelevant to this
case.”

Brief at 2. This argument has already been discussed and

discounted. It cannot be gainsaid that the Court disagrees with
Atlantic

City’s

argument

that

plaintiff’s

discovery

requests

have nothing to do with plaintiff and his claims. Further, legal
authority already exists where Atlantic City was directed to
produce IA files of officers other than the named defendants.
Woodall,

supra;

Reid,

supra.

In
18

addition,

the

Court

has

explained why plaintiff is not limited to only discovering IA
complaints

about

prosecution.

For

excessive

force,

discovery

false

purposes

arrest

the

and

Court

malicious

finds

it

is

relevant, for example, for plaintiff to discover if Atlantic
City had an unconstitutional custom of investigating improper
entry,

improper

search

and

“other

criminal

violation”

complaints. The Court does not accept the notion that the only
relevant IA complaints are those on “all fours” with plaintiff’s
allegations.
plaintiff
ignored

is
or

In

this

case,

entitled

to

inadequately

and
know

for
if

discovery
Atlantic

investigated

any

purposes

City
type

only,

effectively
of

serious

complaints against its police officers, and tolerated any kind
of serious officer misconduct, not just those directly factually
analogous to the claims at issue.
Plaintiff’s

burden

of

proof

is

not

straightforward.

In

order to impose '1983 liability pursuant to a custom plaintiff
must show Atlantic City’s actions were taken with “deliberate
indifference” to its known or obvious consequences. Board of
County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 407
(1997). Negligence will not suffice. Id. A pattern or continued
adherence to an action that the municipality knows or should
know

has

failed

to

prevent

tortious

conduct

by

its

police

officers can establish the requisite conscious disregard for the
consequences of its actions such that a municipality may be held
19

liable.

Cordial,

2014

WL

1095584,

at

*4.

Thus,

plaintiff’s

discovery should not be so narrowly tailored so as to deny him a
fair opportunity to get a complete picture of Atlantic City’s
customs and their effects. As noted, plaintiff is arguing, inter
alia, that Atlantic City has a custom, policy and procedure of
conducting

IA

investigations

to

insulate

officers

from

liability. Frankly, given this theory the Court is at a loss to
understand why it is not crystal clear that IA files for all
serious IA complaints, and not just those for excessive force,
are relevant for discovery purposes.
In its previous Opinion the Court wrote:
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.”
2013

WL

6199187,

at

*6

(citations

omitted).

Thus,

Atlantic

City’s custom regarding its investigation of all serious citizen
complaints, not just excessive force complaints, is relevant to
whether it was deliberately indifferent to the consequences of
its

actions

and

whether

it

tolerated

its

police

officers’

misconduct. Again, on this record, and for discovery purposes
only,

the

violations

Court
of

the

is

not

prepared

required

IA

to

discount

procedures

and

any

serious

policies.

Of

course, the Court is not ruling on the admissibility of any IA

20

file.

Nevertheless,

it

is

well

settled

that

the

scope

of

discovery is broader than admissibility of evidence at trial.
Nestle Foods Corp v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104
(D.N.J. 1990).
Atlantic

City

argues,

“Plaintiff

is

requesting

files

in

[an] attempt to establish claims that are not even contained in
the complaint.”

Brief at 8. Atlantic City zeroes in on the fact

that plaintiff did not specifically plead the term “internal
affairs” in his complaint. Atlantic City’s argument, however,
fails

to

recognize

plaintiff’s
challenge

the

language,

allegations.
Atlantic

substance

Plaintiff’s

City’s

alleged

and

import

allegations

of

repeatedly

unconstitutional

customs,

policies, and procedures. (Amended Complaint at &&59, 89, 90, 91
and 92).
of

his

Plaintiff alleges these practices led to the violation
constitutional

rights.

Id.

Plaintiff’s

discovery

is

directly aimed at his contention that Atlantic City’s police
department had an unconstitutional custom, policy, and practice
of

conducting

should

have

citizens’

deficient

known

would

constitutional

IA

investigations

lead

to

rights.”

a
Id.

that

violation
at

&89.

it
of

“knew

New

The

or

Jersey

fact

that

plaintiff did not specifically use the words “internal affairs”
is not fatal and does not render relevant IA files “off-limits.”
The

key

term

is

“custom.”

Plaintiff

is

challenging

Atlantic

City’s customs as to its IA investigations, and its practice of
21

tolerating officer misconduct. The Court agrees with plaintiff
that its amended complaint, “plainly and fairly encompasses a
claim

that

inadequate

Atlantic
policies,

City’s

internal

procedures,

and

affairs

customs

division

has

and

deliberately

ignores the excessive force used by its officers.”

Reply Brief

at 2.
Atlantic City is displeased with the fact that the Court
used the term “sham” in its earlier Opinion. (“Plaintiff never
claimed

that

Atlantic

City’s

internal

affairs

investigations

were a ‘sham’ until this Court’s Opinion.” Brief at 7 (emphasis
in original)). One would have to ignore the entire history and
proceedings

in

the

case

to

fail

to

recognize

that

Atlantic

City’s alleged deficient IA customs and practices are the heart
of

plaintiff’s

Monell

claim.

Whether

plaintiff

refers

to

Atlantic City’s IA process as “bogus,” a “pretense,” a “sham’,”
or “deficient,” the import is the same. 10 That is why the terms
have been used interchangeably in the case. Plaintiff contends
that Atlantic City is deliberately indifferent to its custom of

10

The formal definitions of these terms are not materially different. “Bogus”
is defined as “not genuine,” “counterfeit” or “sham”. “Pretense” is defined
as “a false reason or explanation that is used to hide the real purpose of
something,” “an act or appearance that looks real but is false,” and “a claim
of having a particular quality, ability, condition, etc.” “Sham” is defined
as “something that is meant to trick or deceive people” and “words or actions
that are not sincere or honest.” “Deficient” is defined as “lacking in some
necessary quality or element” and “not up to a normal standard or
complement.” http://www.merriam-webster.com/dictionary (last visited July 16,
2014.)
22

conducting

and

administering

a

constitutionally

deficient

IA

process and tolerating its police officers’ misconduct.
3.

Plaintiff’s Request for all IA Files
Thus

far

the

Court

has

ruled

that

(1)

plaintiff

may

discover IA files for officers other than Timek and Wheaton, and
(2)

plaintiff

complaints

may

about

prosecution.

discovery

excessive

IA

force,

files
false

other

than

arrest

and

those

for

malicious

The last question to address is whether plaintiff

may discover all of Atlantic City’s IA files from 2003 to the
present. As will be discussed, the Court finds this request goes
too far.
The Court does not know for certain how many complaints
were lodged against Atlantic City’s police officers from 2003 –
present. 11

As best the Court can determine from Atlantic City’s

Internal Affairs Summary Reports, the numbers are as follows:
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
Total

-

11

This is a
forms over
12
The Court
year. See

129
172
207
199
198
179
287
210
186 (citizen complaints)
120 (citizen complaints)
Not provided
1887 12

difficult task given that Atlantic City used different reporting
the years.
used the statistics for the number of cases received during the
Exhibit E.
23

The mere fact that plaintiff is asking for approximately 2000 IA
files does not in and of itself disqualify plaintiff’s request.
See, e.g., Torres, 936 F. Supp. at 1214 (ordering production of
1200 files); Foley, supra (requiring production of all Internal
Affairs records dating back ten (10) years); Weller v. Am. Home
Assur.

Co.,

(N.D.W.Va.
that

C.A.

April

response

No.

3:05-cv-90,

10,

would

2008

2007)(overruling
take

“at

least

WL

1097883,

hundreds

**4-5

despite

objection

at

claim

of

man

hours).

Nonetheless, given the number of files that plaintiff already
reviewed, the Court finds that plaintiff’s request for another
approximate 2000 files is too much. While the scope of discovery
pursuant to Rule 26 is broad, it is not unlimited and may be
circumscribed. Bayer AG v. Betachem, Inc., 173 F.3d 188, 189 (3d
Cir.

1999);

Kopacz

v.

Delaware

F.R.D. 494, 497 (D.N.J. 2004).

River

and

Bay

Authority,

225

Even if documents are relevant

the Court has discretion to limit discovery where the discovery
sought is unreasonably cumulative or duplicative, or where the
burden or expense of the proposed discovery outweighs its likely
benefit.

Fed.

R.

Civ.

P.

26(b)(2).

The

Court

has

“broad

discretion to tailor discovery narrowly” to meet the needs of
each case. Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
“[A] discovery request may be denied if, after assessing the
needs

of

the

case,

the

amount

24

in

controversy,

the

parties’

resources, the importance of the issues at stake in the action,
and the importance of the discovery in resolving the issues, ...
the District Court finds that there exists a likelihood that the
resulting benefits would be outweighed by the burden or expenses
imposed as a consequence of the proposed discovery.” EEOC v.
FAPS, Inc., No. 10-3095, 2012 WL 1656738, at *23 (D.N.J. May 10,
2012).

This

rule

of

proportionality

“is

intended

to

guard

against redundant or disproportionate discovery by giving the
court authority to reduce the amount of discovery that may be
directed

to

matters

that

are

otherwise

proper

subjects

of

inquiry.” Leksi, Inc. v. Federal Ins. Co., 129 F.R.D. 99, 105
(D.N.J.
(internal

1989)

(quoting

quotations

Rule

26

omitted);

advisory
see

committee

also

Public

note)
Service

Enterprise Group, Inc. v. Philadelphia Elec. Co., 130 F.R.D.
543, 551 (D.N.J. 1990) (employing the rule of proportionality to
exclude

“marginally

relevant

evidence”

from

the

scope

of

discovery); Bowers v. N.C.A.A., C.A. No. 97-2600 (JBS), 2008 WL
1757929 (D.N.J. Feb. 27, 2008).
Rather than directing Atlantic City to produce 2000 files,
the Court directs it to produce a “representative sample” of its
IA files from January 1, 2003 – August 10, 2011. 13

The Court is

not

parties

prepared

at

this

time

to

13

define

for

the

the

Although the Court Ordered Timek and Wheaton’s IA files to be produced up to
the present, the Court believes that giving plaintiff a representative sample
for one year after August 10, 2010 is sufficient.
25

parameters of a “representative sample.”

The Court is directing

the parties to meet and confer on the issue and to contact the
Court only if they cannot come to an agreement. 14
Conclusion
Accordingly,

for

all

the

foregoing

reasons,

motion is GRANTED in part and DENIED in part.

plaintiff’s
Plaintiff is

permitted to discover IA files for police officers other than
the named defendants. Further, plaintiff is not limited to only
discovering
malicious

IA

files

prosecution

for

excessive

complaints.

force,

Plaintiff

files for all serious police complaints.

false

arrest

may

discover

and
IA

Plaintiff’s request to

review all of Atlantic City’s IA files from 2003 to the present
is denied. Instead, Atlantic City must produce a representative
sample of its IA files from January 1, 2003 to August 10, 2011
(one year post-incident). The parties shall meet and confer in a

14

The Court’s preference is for the parties to agree on what comprises a
representative sample. Defense counsel has indicated Atlantic City will
retain its own expert. It seems to the Court that the logical way to proceed
is for the parties to agree to define the scope of IA files their experts
will review and let the experts reach their own conclusions. This makes
sense since Fed. R. Civ. P. 26(a)(2)(B) requires that each side produce in
discovery the IA files “considered” by each expert. Glielmi v. Raymond Corp.,
C.A. No. 09-5734 (RMB/JS), 2013 WL 209131, at *4 (D.N.J. Jan. 17, 2013);
Employees Committed for Justice v. Eastman Kodak Co., 251 F.R.D. 101, 105
(W.D.N.Y. 2008)(“Considered” is defined as anything received, reviewed, read,
or authored by the expert, before or in connection with the forming of his or
her opinion, if the subject matter relates to the facts or opinions
expensed.) Therefore, even if the parties do not agree on what is a
“representative sample,” the parties’ experts will ultimately review the same
files.
26

good faith to attempt to agree upon a representative sample. The
Court should be contacted if the parties cannot agree. 15

s/Joel Schneider
JOEL SCHNEIDER
United Magistrate Judge
Dated:

July 17, 2014

15

As noted, an Order memorializing these rulings was entered on June 19, 2014
[Doc. No. 70].
27