SUMMERVILLE et al v. NEW JERSEY STATE POLICE et al

Filing 89

OPINION AND ORDER denying 75 Appeal Magistrate Judge Decision to District Court; that the Letter Order of Magistrate Judge Clark (ECF no. 73) compelling the deposition of Defendant State Police Colonel Joseph R. Fuentes is AFFIRMED as modified to limit the deposition to two hours.. Signed by Judge Kevin McNulty on 7/27/2017. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STANLEY SUMMERVILLE, et al.,

No. 14-cv-7653 (KM)(MAH)

Plaintiffs,
OPINION AND ORDER

V.

DETECTIVE SERGEANT M. GREGORY,
et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:

This is an appeal from a letter order (“Order”, ECF no. 73) of Magistrate
Judge James B. Clark III, entered for the reasons expressed orally in an onthe-record telephone conference. (See Transcript of hearing, Feb. 17, 2017
(“Tr.”), ECF no. 77, Pp. 11—17.) That order granted the plaintiffs’ letter
application for an order compelling the deposition of one of the defendants in
this action, State Police Colonel Joseph 1?. Fuentes.
The District Court will reverse a Magistrate Judge’s decision on a non
dispositive motion only if it is “clearly erroneous or contrary to law.” Fed. R.
Civ. P. 72(a); L. Civ. I?. 72.l(c)(1)(A). This Court has frequently spoken of the
discretion granted to the Magistrate Judge in non-dispositive matters. Where
the appeal seeks review of a matter within the core competence of the
Magistrate Judge, such as a discovery dispute, an abuse of discretion standard
is appropriate. See CooperHospital/Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119,
127 (D.N.J. 1998); Deluccia v. City of Paterson, No. 09-703, 2012 WL 909548,
at *1 (D.N.J. March 15, 2012). “This deferential standard is especially
appropriate where the Magistrate Judge has managed this case from the outset
and developed a thorough knowledge of the proceedings.” Lithuanian Commerce
Coip., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997)(internal
quotations omitted); see Deluccia, 2012 WL 909548, at *1 (same). Abuse of
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discretion review, of course, may get us to much the same place: as a practical
matter it incorporates plenary review of legal questions. See Koon v. United
States, 518 U.S. 81, 100 (1996).

The currently operative pleading in this Section 1983 action is the Third
Amended Complaint (“3AC”, ECF no. 33). It alleges that State troopers
confronted and detained the plaintiffs, in violation of their Fourth Amendment
rights and on the basis of racial profiling, and thereafter filed a misleading
police report. Plaintiffs are “African male[sj whose color is black and who
appearj] to be African-American.” (3AC

¶1J 5, 6) They allege that they were in a

shopping center mall, loading items into newly purchased suitcases in the rear
compartment of their car. At that point, several unmarked police cars chased
and then blocked a Lexus driven by an African-American male (whose name
was later revealed to be Parker), about 30 to 40 yards away from the plaintiffs’
car. Parker was arrested. Several of the officers, guns drawn, ran over to the
plaintiffs; white persons nearby were left undisturbed. Plaintiffs were
handcuffed, forced to the ground, and asked if they knew Parker. The officers
checked for warrants; asked for and got consent to search the plaintiffs’ car;
and checked mall surveillance tapes to verify whether the plaintiffs had been
shopping. The handcuffs were then removed. Later, the officers wrote an
investigative report. This report omitted the fact that plaintiffs were 30 to 40
yards from the location of the arrest. (3AC ¶j 36—67)
The 3AC names as defendants the officers involved in the alleged
incident. Most pertinently here, it also names as a defendant Col. Fuentes,
their ultimate commanding officer. His liability is alleged to rest on failure to
act, inadequate training of officers, and acquiescence in a pattern and practice
of unlawful stops. (See 3AC, Second and Third Causes of Action) The complaint
cites Monell v. New York City Dept. of Social Sen’s., 436 U.S. 658, 694, 98 5. Ct.
2018 (1978).
Col. Fuentes moved to dismiss the 3AC. I denied that motion in an
Opinion and Order dated March 11, 2016 (“MTD Op.”, ECF no. 51). My Opinion
cited well-established case law to the effect that the liability of a supervisor in a
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Section 1983 civil rights action cannot be predicated on respondeat superior
and that the supervisor must have been involved personally, through personal
direction or actual knowledge and acquiescence. (MTD

op.

3) The plaintiffs’

allegations suggest that they rely on a theory that Col. Fuentes, who occupied a
policymaking position, with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused
the constitutional harm. (MTD Op. 4, citing A.M. ex rd. J.M.K. v. Luzeme Cnty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). A policy may be official
and formal, but a custom may be found in a well-entrenched course of dealing,
including a custom of failure to properly train personnel. (MTD Op. 4—5)
Then, as now, Defendant Fuentes expressed concern that the plaintiffs’
allegations against him were part of a proverbial “fishing expedition.” I
expressed confidence that Judge Clark would keep discovery within proper
bounds, and suggested that he might prioritize discovery to deal first with the
incident itself, and then work up the ladder to supervisors and broader
allegations of “custom and practice” liability. (MTD Op. 7)
The record suggests that the Magistrate Judge has done precisely that.
Discovery to date, closely supervised by the Judge Clark, has thoroughly
explored the events in suit, and is nearing completion. Col. Fuentes replies,
however, that enough is enough. He points out that he has already responded
to two sets of interrogatories. Defendants have supplied copies of SOPs and
training materials, and have directed the plaintiffs to public websites that
compile annual statistics on complaints against the State police, investigations,
and disciplinary outcomes. Defendants also opine that the process thus far has
not produced evidence of the systemic problems posited by the plaintiffs;
indeed, they suggest, the evidence demonstrates that the consent order in
effect from 1999—2009 has been very effective in creating policies and
procedures to prevent the very practices complained of here.
Col. Fuentes stresses that Fed. R. Civ. P. 26, although broad, is not
unlimited, and that “high ranking government officials” are not subject to being
deposed merely upon a litigant’s say-so. See Def. Brf. (ECF no. 75-2) (citing,
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e.g., United States v Morgan, 313 U.S. 419, 422 (1941); United States v Sensient
Co’ors, Inc., 649 F. Supp. 2d 309, 316 (D.N.J. 2009); Buono v City of Newark,
249 F.R.D. 469, 470 n.2 (D.N.J. 2008) (noting interest in “ensuring that high
level government officials are permitted to perform their official tasks without
disruption or diversion.). Such a witness, in defendants’ view, cannot be
deposed absent “extraordinary circumstances.” See id. That would require a
showing that
(1) the official’s testimony is necessary to obtain relevant
information that is not available from another source; (2) the
official has first-hand information that cannot reasonably be
obtained from other sources; (3) the testimony is essential to the
case at hand; (4) the deposition would not significantly interfere
with the ability of the official to perform his government duties;
and (5) the evidence sought is not available through less
burdensome means or alternative sources. See Buono, 249 F.R.D.
at 471 n. 2.
Sensient Colors, 649 F. Supp. 2d at 322. Judge Clark cited Sensient Colors, and
his analysis demonstrates that he was sensitive to the five factors enumerated
there:
I

let me commend your attention or at least I’ll say for the
record that I’ve read and am relying in some degree on the case, a
District of New Jersey case, United States v. Sensient Colors Inc.,
and that is 649 F. Supp. 2d 309, and its District of New Jersey,
2009. In that case, the
the Court specifically on page 322, notes
that any number of high-ranking officials including, you know,
former Governor Blagojevich in the state of Illinois, former
Governor Cuomo in a case where he wasnt even named a party
were ordered to appear for depositions, and the key was
the key
generally speaking is that there are allegations that the official
acted with improper motive or acted outside the scope of their
official duty and that they had unique personal knowledge.
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Now, I know, Mr. Rizzo’s going to argue that, well, the colonel
has no knowledge, but he has unique personal knowledge of the
fact he has no knowledge. And, quite frankly, I don’t know why the
plaintiff should be forced to trust the representations of counsel on
the record that the colonel has no knowledge. Mr. Graves has just
pointed out that he wants to know if he’s ever seen reports that
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said this, what his knowledge is of statistics regarding these kinds
of crimes.
Hes in the case. I mean, he did not get rid of this case.
Judge McNulty kept him in the case. And I am sensitive to the fact
that Judge McNulty said we need to keep the discovery
manageable here, but in some respects, if he appears for a short
deposition where he confirms he has no knowledge, that may be a
lot more manageable than anything else I can conceive of right
now. I do not think that he is immune from appearing for a
deposition. I do think he will have
he’s the only one who knows
- who has knowledge about what he actually knows with respect to
the practices in
you know, with respect to these kinds of stops
and these kinds of actions by police. I can’t say that the plaintiff
isn’t allowed to probe that. And the plaintiff may come up dry. And
if the plaintiff comes up dry and the documentary evidence comes
up, you know, short, then I suppose Colonel Fuentes will get out
on summary judgment. But the rules provide for a
the right to
take a deposition. And the colonel is a party to this litigation. He’s
the only one who knows what he knows about all of these topics.
The allegation is that he acted with improper motive or outside the
scope of his
the action
the allegation is that at the very least
he acted negligently. I’m not saying that that’s right or not. But
that’s the allegation. And that allegation survived a preliminary
motion.
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--

--

So I think on these two items, for
as far as Colonel
Fuentes goes, he’s going to have to appear for a deposition. You
can work that out. You know, I encourage you to work it out, make
it as easy for the parties as possible. But he’s going to have to
appear for a deposition in this case and confirm his knowledge or
lack of knowledge with respect to the things that the plaintiff is
alleging.
--

(Tr. 15—16)
This ruling was well within Judge Clark’s considerable discretion, and I
find no clear error or error of law that would justify reversal. Nevertheless, to
avoid doubt, I will briefly perform an independent analysis. Under the five
overlapping Buono factors, I find that a deposition is warranted.

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The information obtainable through deposition is both relevant and
necessary. It is easy to see, of course, that a litigant might seek discovery from
a high official totally unconnected to the case, simply for purposes of
harassment. As Judge Clark pointed out, however, such cases generally (if not
always) involve high-ranking government officials who are not parties to the
litigation.’ Here, as Judge Clark pointed out, Col. Fuentes is a party defendant.
He remains in the case following an unsuccessful motion to dismiss. I add that
he is a defendant in his personal capacity. I must also consider the peculiar
legal context of supervisor liability under

§

1983. Plaintiffs are not merely

attempting to satisfy their curiosity about who knew what; personal
involvement and pattern-and-practice evidence are required in the

§

1983

context, where there is no respondeat superior liability. Proof of such a pattern
or practice—assuming it exists—might require a range of documentary,
statistical, and testimonial evidence. But Col. Fuentes’s knowledge and/or
participation is a part of that picture.
Col. Fuentes, starting in 2003, was in charge as the State Police strove to
bring themselves into compliance with the consent order. The defendants argue
that Col. Fuentes has no knowledge of any current pattern, practice, or custom
of the kind alleged by the plaintiffs. Still, there is enough of a history to make
me agree with Judge Clark’s ruling that plaintiffs should not have to simply
accept counsel’s representation that a party has no relevant knowledge. That is
a fact that can only be established definitively through deposition of that party.
In short, what plaintiffs seek is an opportunity to go on the record with Col.
Fuentes.
The factor that gives me pause is the fourth: whether the deposition will
interfere with the official’s duties. As to that, I do not think that the plaintiffs
have made a strong showing. I take judicial notice that many cases are brought

In Buono, for example, a city employee sued based on alleged retaliation during
the former mayor’s administration, and sought to depose the current mayor, who was
not a party to the litigation.
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against the State Police, and it stands to reason that Col. Fuentes could not
discharge his duties if he were deposed in all of them. I also take note of the
defendants’ showing that they have turned over extensive relevant evidence,
and that Col. Fuentes has answered two sets of interrogatories. Under the
circumstances, the extent of the deposition may rightly be curtailed.
Judge Clark referred to a “short” deposition, but did not elaborate
further. For the foregoing reasons, I will affirm Judge Clark’s order but modify
it to limit the deposition to two hours. I reiterate his admonition that the
parties work out a place and time that is convenient and least disruptive to
official business.

ORDER

Defendants having filed an appeal (ECF no. 75) of the Magistrate Judge’s
order (ECF no. 73) compelling the deposition of defendant Col. Joseph R.
Fuentes; and the plaintiffs having filed a response (ECF no. 78); and the
defendants having filed a reply (ECF no. 80); for the reasons expressed on the
record by Magistrate Judge Clark (ECF no. 77), as supplemented by the
foregoing Opinion, and good cause appearing therefor;
IT IS this 27th day of July, 2017
ORDERED that the appeal is DENIED, and that the Letter Order of
Magistrate Judge Clark (ECF no. 73) compelling the deposition of Defendant
State Police Colonel Joseph R. Fuentes is AFFIRMED as modified to limit the
deposition to two hours.

Hon. Kevin McNulty
United States District

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