Boggs et al v. Town Of Riverhead et al

Filing 52

MEMORANDUM OF DECISION & ORDER re 50 motion, pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P" or "Rule") 72(a), by the Town and Riverhead Town Police Officer "John Does" 1-10 and "Jane Does" 1 -10 (collectively, the "Town Defendants"), objecting to an order by United States Magistrate Judge Steven I. Locke compelling the deposition of the Town's Chief of Police. ECF 49 (the "Order"). For the foregoing reasons, t he Court grants the Town Defendants' motion pursuant to Rule 72(a) in its entirety and sustains their objections to the Order. The Plaintiffs' demand to depose Chief Hegermiller is hereby quashed. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 4/21/2020. (Coleman, Laurie)

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FI LED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

ELENDELL BOGGS and RANDY MOUZON,

LONG ISLAND OFFICE

--------------------·-------------X
Plaintiff,
-against-

APR 20 2020

*

MEMORANDUM OF
DECISION & ORDER
2:17-cv-05411 (ADS) (SIL)

TOWN OF RIVERHEAD, Riverhead Town
Police Officers "JOHN DOES" 1-10 and "JANE
DOES" 1-10, in their official and individual
capacities; RIVERHEAD VILLAGE
PRESERVATION LLP; and New York State
Law Enforcement Agents "JOHN DOES" 1-10
and "JANE DOES" 1-10, in their official and
individual capacities,
Defendants.

-----------------------------------------------------X
APPEARANCES:
Law Office of Harriet A. Gilliam
Attorney for the Plaintiffs
21 W Second St
Po Box 1485
Riverhead, NY 1190 I
By:
Harriet A. Gilliam, Esq., Of Counsel.
Campolo, Middleton & McCormick, LLP
Attorneys for Defendants Town of Riverhead and Riverhead Town Police Officers Joh Does 1-10
and Jane Does 1-10
4175 Veterans Memorial Hwy
Ronkonkoma, NY 11779
By:
William McDonald, Esq.,
Meghan McGuire Dolan, Esq., Of Counsel.
London Fischer LLP
Attorneys for Defendant Riverhead Village Preservation LLP
59 Maiden Lane, 39th Floor
New York, NY 10038
By: Brian Patrick McLaughlin, Esq., Of Counsel.

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SPATT, District Judge:

The plaintiffs Elendell Boggs ("Boggs") and Randy Mouzon ("Mouzon") (collectively, the
Plaintiffs") bring this action pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging violations of
their federal and state constitutional rights by the Town of Riverhead (the "Town"), Riverhead
Village Preservation LLP, and various law enforcement officers named as John and Jane Does.
Presently before the Court is a motion, pursuant to Federal Rule of Civil Procedure ("Fed.
R. Civ. P/' or "Rule") 72(a), by the Town and Riverhead Town Police Officer "John Does" 1-IO
and "Jane Does" 1-IO (collectively, the "Town Defendants"), objecting to an order by United
States Magistrate Judge Steven I. Locke compelling the deposition of the Town's Chief of Police.
ECF 49 (the "Order'').
For the following reasons, the Court grants the Town Defendants' motion and sustains their
objections to the Order.
I. BACKGROUND
A. THE ALLEGATIONS IN THE COMPLAINT.

This action arises from an incident that allegedly took place on November 6, 2014 at the
Plaintiffs' apartment in Riverhead, Suffolk County, New York. ECF 1 ,r 16. According to the
Plaintiffs, law enforcement officers from the Town, the City, and the State of New York entered
the Plaintiffs' apartment without requesting permission, showing a search warrant, identifying
themselves, or explaining the reason for their presence. Id.

,r 19-21. Upon entering the apartment,

they handcuffed all the individuals present, including Mouzon, but not Boggs, who they told to sit
on the couch. Id.

,r,r 23-24. The officers then proceeded to search the remainder of the apartment.

Jd.,I31.

2

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The Complaint alleges that the officers "mocked" and "taunted" and threatened the
Plaintiffs throughout the search. Id

,r 38. At some point, one of the officers took Mouzon into a

different room and called Boggs into that room 20 minutes later. Id.

,r,r 33-34. Then, the officers

told the Plaintiffs that they were looking for Mouzon's son and threatened to arrest the Plaintiffs
if they did not assist. Id.

,r,r 35-36. The Plaintiffs further allege that the officers denied Mouzon

medical assistance in the fonn of his asthma inhaler, despite his visible difficulty breathing. Id.

,r 38.
Based on these events, the Plaintiffs allege that the Town, the City, and the State of New
York (the "State") conspired to violate their rights under the United States and New York State
Constitutions. Id.

,r,i 56-59. The Plaintiffs assert that the Town, the City, and the State engaged

the Village, which is the management company of the Plaintiffs' apartment building, in the
conspiracy. Id.

,r 17, 27, 57. Accordingly, the Plaintiffs brought this action against the Town, the

City, and the Village, as well as Riverhead Town Police Officers, "John Does" 1-10 and "Jane
Does" 1-10; New York City Law Enforcement Agents "John Does" 1-10 and "Jane Does" 1-10
(the "City John and Jane Does"); and New York State Law Enforcement Agents "John Does" 110 and "Jane Does" 1-10.
On November 7, 2018, the Court granted a motion to dismiss by the City and the City John
and Jane Doe; dismissed all claims against those defendants; and denied the Plaintiffs leave to
amend.

B. THE PRESENT DISPUTE.
On November 14, 2019, the Plaintiffs flied a motion to compel the deposition of the Town
of Riverhead Chief of Police David Hegenniller ("Chief Hegenniller"). The Plaintiffs contended
they needed to depose him because he allegedly "has infonnation as to the operations and
3

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procedures of the Department and its officers when it comes to cooperating with other municipal
law enforcement agencies, as was the case here, and information which may lead to discoverable
information as to documentation or procedures which cover the actions and involvement of the
officers in this matter, as well as the preparation and processing of required documentation." ECF
42 at 1-2.
On December 4, 2019 Judge Locke initially denied the Plaintiffs' motion to compel,
without prejudice, in order for them to determine if the impending depositions of Town of
Riverhead police officers Sergeant Atkinson, Sergeant Welsley and Detective McDermitt would
enable them to ascertain what these policies and procedures were, and whether they were followed
in this case. ECF 44.
The Plaintiffs claim that those depositions were not determinative and failed to unearth the
information they sought. Further, the Plaintiffs claim that the officers' deposition testimony
revealed inaccuracies in the Town's response to the first set of interrogatories, which stated that
no Town of Riverhead police officers ever entered the Plaintiffs' apartment or participated in any
way in the City's conduct on the night of the alleged incident. Sergeant Wesley, Detective
McDermitt and another Town officer, Officer Bums, cumulatively testified that at least three Town
of Riverhead Police officers-Officer Bums, Detective McDermitt and Detective Sergeant
Frost-entered the Plaintiffs' apartment that night. Based on this testimony, on February 21, 2020,
the Plaintiffs renewed their motion seeking to depose ChiefHegermiller.
On February 25, 2020, after hearing the oral argument of the parties, Judge Locke granted
the Plaintiffs' renewed motion and ordered that Chief Hegermiller appear for a two hour
deposition, because "the inconsistencies explained both on the record and in writing are such that

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[he could not] understand exactly what the policy is that these officers may or may not have
complied with in terms of getting into the house." ECF 49 at 11:1-5. He further elaborated that:
But I think that the inconsistencies as they exist in the record and that fact that I'm
anticipating, a trial in this case-I'm not suggesting anything about the merits one
way or the other, that Ms. Gilliam will do what plaintiff's lawyers do, which is try
to create a narrative and a broad picture, and then plug the individuals into different
spots in that picture, in a way that the jury can understand and will support her
version. I don't see, as the evidence is unfolding, that she can do that given the
memories of the witnesses she has deposed in conjunction with the inconsistencies
in the record, and that is the basis for overruling the objection, granting the motion
to compel the deposition of the Chief
ECF 49 at 11:23-12:12.

II. DISCUSSION
When considering an appeal of a magistrate judge's ruling on a non-dispositive matter, a
district judge shall "modify or set aside any part of the order that is clearly erroneous or is contrary
to law." Fed. R. Civ. P. Rule 72(a); see also 28 U.S.C. § 636(b)(l)(A) ("A judge of the court may
reconsider any [nondispositive] pretrial matter ... where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to law."). A finding is clearly erroneous if "the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364,395, 68 S.Ct. 525, 92 L.Ed.
746 (1948); United States v. Jsiofia, 310 F.3d 226,232 (2d Cir.2004). An order is contrary to law
"when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Catskill

Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002).
The Court agrees with the Town Defendants that permitting the deposition of Chief
Hegermiller under these circumstances would be contrary to law. The party seeking a deposition
of a high-ranking official must establish that exceptional circumstances warrant the taking of the
deposition. Lederman v. New York City Dep't ofParks & Recreation, 131 F.3d 199,203 (2d Cir.
5

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2013). The parties agree that Chief Hegenniller, as the Town of Riverhead Chief of Police, is the
sort of official for whom this privilege applies. See, e.g., Murray v. Cty. ofSuffolk, 212 F.R.D. 108,
109-10 (E.D.N.Y. 2002); Brown v. Vitucci, No. 14-cv-5034, 2018 WL 2304739, at *6 (E.D.N.Y.
May 21, 2018); Gil v. Cty. ofSuffolk, No. 06-cv-1683, 2007 WL 2071701, at *1-2 (E.D.N.Y. July
13, 2007).
The Second Circuit has found that exceptional circumstances exist if "the official has
unique first-hand knowledge related to the litigated claims or that the necessary infonnation cannot
be obtained through other, less burdensome or intrusive means." Lederman, 731 F.3d at 203. Thus,
the Plaintiffs may only take Chief Hegenniller's deposition if"( 1) the deposition is necessary in
order to obtain relevant infonnation that cannot be obtained from any other source; and (2) the
deposition would not significantly interfere with the ability of the official to perfonn his or her
governmental duties." Boudouris v. Cty. of Nassau, No. I4-cv-6719, 2016 WL 4288645, at * I.
(E.D.N.Y. 2016).
The Plaintiffs seek information regarding the Riverhead Police Department's assistance to
City law enforcement agencies, and what policies and procedures exist regarding documenting
that assistance. The Plaintiffs deposed two Riverhead Patrol Sergeants, who testified that no
official or written policy exists in that regard. See ECF 50 at 3. Their testimony directly resolves
the Plaintiffs' inquiry, because they affinnatively testified that the policies and procedures the
Plaintiffs seek information on do not exist. The fact that this answer is unsatisfactory to the
Plaintiffs, in that they would prefer that such a policy or procedure existed, is of no moment.
Moreover, the Plaintiffs have neither alleged that Chief Hegermiller possesses unique-first
first-hand knowledge related to their claims nor explained why Chief Hegenniller would likely
contradict the testimony of those Sergeants. See Ebbert v. Nassau Cty., No. 05-cv-5445, 2007 WL
6

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674725, at *6 (E.D.N.Y. Mar. 5, 2007) (denying motion to compel deposition of high ranking
government official where "[n]o evidence has been presented thus far to demonstrate that Wall
had any direct involvement in the actual preparation or administration of the examinations[.]").
The fact that he was the ultimate decision-maker regarding the alleged policy is not a
sufficiently exceptional circumstance to compel a deposition. See Murray v. Cty. of Suffolk, 212
F.R.D. 108, 109-10 (E.D.N.Y. 2002) (rejecting request to compel the deposition of a police
commissioner in a Monell case because he was "the ultimate individual in care of departmental
policy."); Universal Calvary Church v. City ofNew York, No. 96 CIV .4606RPP, 1999 WL 350852,
at *7 (S.D.N.Y. June 2, 1999) (rejecting request to compel deposition of mayor and police
commissioners in a Monell claim on the sole basis that they were "policy makers").
The Plaintiffs argue that the deposition of ChiefHegenniller is also warranted because the
Town Defendants submitted an incorrect response to an interrogatory, by stating that no officers
entered the Plaintiffs' apartment on the night of the alleged incident. This response was later shown
to be untrue during the depositions of Town police officers. The Court does not understand the
Plaintiffs' reasoning. Nothing about that inconsistency makes Chief Hegenniller more likely to
possess knowledge about a policy or procedure regarding assisting outside law enforcement
agencies than the officers they deposed. Rather, at least circumstantially, it would seem to confirm
those officers' testimony that no such policy existed, because it infers the Town lacked written
records regarding who entered the Plaintiffs' apartment on the night of the incident.
Therefore, the Court finds that the Plaintiffs have not established exceptional
circumstances justifying compelling the deposition of Chief Hegenniller.

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III. CONCLUSION
For the foregoing reasons, the Court grants the Town Defendants' motion pursuant to Rule
72(a) in its entirety and sustains their objections to the Order. The Plaintiffs' demand to depose
ChiefHegermiller is hereby quashed.

SO ORDERED.

Dated: Central Islip, New York
April.lo, 2020

n
/s/ Arthur D. Spatt
L

ARTHURD. SPATT
United States District Judge

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