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
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