Alford v. The City Of New York. et al

Filing 35

ORDER granting in part and denying in part 29 Motion for Discovery Stay. The defendants' application for a stay is granted as to Monell discovery and denied in other respects. Ordered by Magistrate Judge Marilyn D. Go on 3/20/2012. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DOUGLAS ALFORD,
Plaintiff,
ORDER
- against CV 2011-0622 (ERK)(MDG)
THE CITY OF NEW YORK, et al.,
Defendants.
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By letter motion dated February 6, 2012, defendants move for
a stay of discovery pending resolution of their motion to
dismiss.

See ct. doc. 29.

Although plaintiff did not file a

response to defendants’ motion to stay, plaintiff indicated in a
letter dated January 31, 2012 that it would oppose any such
application.

See ct. doc. 25 at 2.
BACKGROUND

In his amended complaint, plaintiff alleges claims for,
inter alia, false arrest, denial of the right to a fair trial and
excessive force pursuant to 42 U.S.C. § 1983 arising out of his
arrests on August 5, 2010 and August 13, 2010 while selling CDs
on the sidewalk.
35-36.

Amended Complaint (ct. doc. 21) at ¶¶ 13-14,

Plaintiff was arrested for Unlicensed General Vending and

Failure to have a Certificate of Authority with respect to the
first arrest, which charges were adjourned contemplating
dismissal on October 6, 2010.

Declaration of Curt Beck dated

February 1, 2012 (“Beck Decl.”) (ct. doc. 28-1), Exh. G.

At the

time of the first arrest, there was an outstanding bench warrant
for plaintiff issued on December 14, 1997.

Id., Exh. F.

With

respect to the August 13, 2010 arrest, plaintiff was charged with
Unlicensed General Vending and Failure to Disclose the Origin of
Recording.

Declaration of Wale Mosaku dated February 23, 2012

(“Mosaku Decl.”) (ct. doc. 30), Exh. 1.

Following a bench trial

on November 16, 2011, the charges stemming from the August 13
arrest were dismissed.

Id., Exh. 4.
DISCUSSION

A party seeking a stay of discovery pursuant to Fed. R. Civ.
P. 26(c) bears the burden of showing good cause.

Brooks v.

Macy’s, Inc., 2010 WL 5297756, at *1 (S.D.N.Y. 2010); Telesca v.
Long Island Hous. P'ship, Inc., 2006 WL 1120636, at *1 (E.D.N.Y.
2006).

The pendency of a dispositive motion is not, in itself,

an automatic ground for a stay.

Id.

Rather, a court determining

whether to grant a stay of discovery pending a motion must look
to the particular circumstances and posture of each case.
Hachette Distribution, Inc. v. Hudson County News Co. Inc., 136
F.R.D. 356, 358 (E.D.N.Y. 1991).

Courts consider the following

factors in determining whether a stay is appropriate: 1) whether
the defendant has made a strong showing that the plaintiff's
claim is unmeritorious; 2) the breadth of discovery and the
burden of responding to it; and 3) the risk of unfair prejudice
to the party opposing the stay.

See Telesca, 2006 WL 1120636, at

*1; In re Currency Conversion, 2002 WL 88278, at *1 (S.D.N.Y.

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2005).

Courts also may take into consideration the nature and

complexity of the action, whether some or all of the defendants
have joined in the request for a stay, the type of motion and
whether it is a challenge as a matter of law or to the
sufficiency of the allegations, and the posture or stage of the
litigation.

See Telesca, 2006 WL 1120636, at *1; Hachette

Distribution, 136 F.R.D. at 358.
This Court has preliminarily reviewed the papers submitted
by the parties with respect to defendants' motion to dismiss
plaintiff's claims.

While the defendants may have substantial

arguments for dismissal of some of the claims, this Court is
doubtful that defendants will succeed in dismissing all of the
claims against them.

For example, defendants argue that

plaintiff’s denial of fair trial claim is duplicative of the
false arrest and malicious prosecution claims.

However, many

courts in this Circuit have permitted claims for denial of the
right to a fair trial based on the same fabrication of evidence
underlying the plaintiff’s Fourth Amendment claims.

See, e.g.,

Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir.
1997); Nibbs v. City of N.Y., 800 F. Supp. 2d 574, 576 (S.D.N.Y.
2011); Brandon v. City of N.Y., 705 F. Supp. 2d 261, 275-76
(S.D.N.Y. 2010); Cruz v. Reilly, 2009 WL 2567990, at *3 (E.D.N.Y.
2009); Schiller v. City of N.Y., 2008 WL 200021, at *9-*10
(S.D.N.Y. 2008); Jovanovic v. City of N.Y., 2006 WL 2411541, at
*12-*13 (S.D.N.Y. 2006).

Even if probable cause existed for

plaintiff’s arrests, defendants still could be liable for
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fabricating evidence against plaintiff.

See Ricciuti, 124 F.3d

at 129-30 (“No arrest no matter how lawful or objectively
reasonable, gives an arresting officer . . . license to
deliberately manufacture false evidence against an arrestee.”).
Defendants also argue that plaintiff’s excessive force claim
stemming from his being handcuffed fails to state a claim.
Courts have dismissed claims of excessive force where the
handcuffing is routine but have found that handcuffing can give
rise to a section 1983 claim where the plaintiff suffers an
injury.

Compare Drummond v. Castro, 522 F. Supp. 2d 667, 679

(S.D.N.Y. 2007) (plaintiff failed to present any evidence apart
from tight handcuffs) and Hamlett v. Town of Greenbugh, 2007 WL
119291, at *3 (S.D.N.Y. 2007) (finding numbness resulting from
handcuffing insufficient to constitute excessive force) with
Gonzalez v. City of N.Y., 2000 WL 516682, at *4 (E.D.N.Y. 2000)
(denying summary judgment where plaintiff presented evidence of
permanent injury from handcuffs).

Among the factors courts

consider in determining whether a case involves routine
handcuffing is whether the handcuffs were unreasonably tight,
whether the officers ignored the arrestee’s pleas that the
handcuffs were too tight and the degree of injury to the
arrestee’s wrists.

See Jouthe v. City of N.Y., 2009 WL 701110,

at *13-*16 (E.D.N.Y. 2009) (discussing Esmont, 371 F. Supp. 2d
202, 215 (E.D.N.Y. 2009)).

Plaintiff alleges that the tight

handcuffs placed on him caused “pain . . . and numbness,”
“resulting in physical injuries,” and that his complaints were
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“ignored by [defendant] Gong.”
69-70.

Amended Complaint at ¶¶ 17-18,

Although plaintiff’s allegations are vague, they may be

sufficient to survive defendants’ motion to dismiss.
While discovery is often an onerous process, the parties
have completed document discovery and defendants have failed to
prove that it will be unduly burdened by taking or defending
depositions.

Defendants predict that at least 9 depositions will

be required, including several non-parties, which appears to be
an overgenerous estimate.

For example, the testimonies of both

police officers Raznikiewicz and Pinkey would be duplicative, the
testimony of the Administrative Law Judge is not necessary since
his Decision and Order speaks for itself and the parties could
agree on a stipulation in lieu of testimony from a
representative of the Recording Industry Association of America
as the parties did at plaintiff’s trial arising out of the August
13th arrest.

In any event, having to participate in the

depositions of non-party witnesses also does not constitute "good
cause."

See Hollins v. United States Tennis Ass'n, 469 F. Supp.

2d 67, 79 (E.D.N.Y. 2006); Howard v. Galesi, 107 F.R.D. 348, 350
(S.D.N.Y. 1985).

The fact that plaintiff has already sought to

schedule the depositions of defendants weighs against delaying
discovery by granting a stay.
F.R.D. at 359.

See Hachette Distribution, 136

On the other hand, plaintiff has not articulated

how he would be prejudiced by a stay.
In sum, after weighing the relevant factors, I find that
defendants have not established good cause to warrant a stay of
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all discovery pending the Court's ruling on defendants' motion to
dismiss.

However, the defendants’ motion is granted to the

extent of staying Monell discovery.

Accordingly, the application

for a stay is granted in part and denied in part.
CONCLUSION
For the foregoing reasons, the defendants' application for a
stay is granted as to Monell discovery and denied in other
respects.
SO ORDERED.
Dated:

Brooklyn, New York
March 20, 2012
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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