Lindsey v. Butler et al

Filing 118

ORDER granting in part and denying in part 107 Motion to Compel: Pro se plaintiff Anthony Lindsey brings this action pursuant to 42 U.S.C. § 1983, alleging that Detectives Sean Butler and Richard Werner violated his constitutional rights whe n they forcibly shaved his facial hair over his religious objection during post-arrest questioning on December 16, 2008. Pending before the Court is Plaintiff's motion to compel discovery. Doc. 107. To the extent that Defendants possess relevant information, the Court directs Defendants to respond to interrogatories 1, 2, 4, 5, 8, 11, 12, 14, 16, 19, and document requests 2, 3, 4, 8, 10, 11. Regarding document request 1, which seeks "all documents identified in the preceding interrogat ories," Defendants are only directed to provide documents relating to interrogatories that have been identified as within the scope of discovery for Plaintiff's remaining excessive force claim. Defendants are directed to comply with this order by no later than October 16, 2017. The Clerk of the Court is respectfully requested to terminate the motion, Doc. 107. (Signed by Judge Edgardo Ramos on 9/18/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY LINDSEY,
Plaintiff,

ORDER
11 Civ. 9102 (ER)

- against DETECTIVE SEAN BUTLER and
DETECTIVE RICHARD WERNER,
Defendants.

Ramos, D.J.
Pro se plaintiff Anthony Lindsey brings this action pursuant to 42 U.S.C. § 1983, alleging
that Detectives Sean Butler and Richard Werner violated his constitutional rights when they
forcibly shaved his facial hair over his religious objection during post-arrest questioning on
December 16, 2008. Pending before the Court is Plaintiff’s motion to compel discovery. Doc.
107. For the reasons set forth herein, Plaintiff’s motion is GRANTED in part and DENIED in
part.
I.

Factual Background 1
Plaintiff, a practicing Black Sunni Muslim, was arrested on December 16, 2008, by

Detectives Sean Butler and Richard Werner of the New York Police Department (“NYPD”). Am.
Compl. ¶¶ 8, 10. Plaintiff was transported to the NYPD’s Sixth Precinct before being transferred
to the Manhattan Robbery Squad Building. Id. ¶ 11. After several hours of questioning,
Detectives Butler and Werner arranged for a police lineup. Id. ¶ 29. When the “fillers” arrived

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The following facts are based on allegations in Plaintiff’s Amended Complaint (“Am. Compl.”) (Doc. 37). The
facts recited herein do not constitute findings of fact by this Court.

for the lineup, the detectives realized that they were all “clean shaven and none were similar to
Plaintiff.” Id. Because the detectives “could not place [Plaintiff] in the line-up where Plaintiff
was [the] only one with facial hair,” they asked Lindsey “if he would forfeit his religious rights
and allow them to shave his face.” Id. Plaintiff objected, “NO!” Id. Lindsey also requested
counsel. Id.
Later in the questioning, Lindsey asked Detective Butler if he could use the bathroom.
Id. When Lindsey exited the bathroom, several unidentified officers rear-cuffed him and
knocked him down to the floor while Detective Werner “forcibly shaved Plaintiff[’s] facial hair.”
Id. Plaintiff alleges that Detective Butler ordered the shaving, despite Lindsey’s objections and
request to contact counsel. Id. ¶ 12.
Plaintiff alleges that he suffered “various injuries” as a result of Defendants’ conduct,
including a mild concussion from being slammed on the floor and lower back pain. Am. Compl.
¶ 21. According to Plaintiff, Detective Butler denied his requests for medical attention, “stating
that there is no medical here and you’re not getting medical assistance or [a]ttention.” Id.
II.

Procedural Background
Plaintiff filed an Amended Complaint on September 3, 2013, bringing claims under the

First, Fourth, Eighth, and Fourteenth Amendments. Doc. 37. In addition to Detectives Butler
and Werner, Plaintiff named former NYPD Commissioner Raymond Kelly and the City of New
York as Defendants. Id. On August 29, 2014, the Court dismissed Plaintiff’s Eighth Amendment
claim, as well as all claims against former NYPD Commissioner Raymond Kelly and the City of
New York. Doc. 50. The Court further held that the Amended Complaint stated a claim under
the First Amendment and the Fourth Amendment, and denied Detective Butler’s motion to
dismiss the Fourth Amendment claim on the basis of qualified immunity. Detective Butler

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moved for partial reconsideration of the Court’s decision, arguing that the Court should have
granted his motion to dismiss the First Amendment claim on the basis of qualified immunity.
The Court dismissed the First Amendment claim on November 5, 2014. Doc. 59. Accordingly,
Plaintiff’s only remaining claim is for excessive force under the Fourth Amendment.
In March 2016, the Court was made aware of a discovery dispute between the parties.
Doc. 81. On March 7, 2016, the Court received a letter from Plaintiff indicating that Defendants
had not responded to the discovery demands Plaintiff served on them on January 11, 2016. Doc.
81. Plaintiff’s discovery demands consisted of 20 interrogatories and 13 document requests.
Doc. 112-2. On March 9, 2016, the Court directed Defendants to respond to Plaintiff by March
16, 2016. On March 14, 2016, Plaintiff filed a motion to compel Defendants to respond to
Plaintiff’s interrogatories and document requests, suggesting that Defendants had not complied
with the Court’s March 16, 2016 Order. Doc. 82. In a letter filed on April 11, 2016, Defendants
informed the Court that they had indeed served responses and objections to Plaintiff’s discovery
demands on Plaintiff by March 16, 2016. Doc. 84. Accordingly, the Court denied Plaintiff’s
motion to compel as moot on May 5, 2016. Doc. 86. The Court also directed the parties to meet
and confer regarding Defendants’ objections to Plaintiff’s discovery requests. Id. The Court
stated that if, after such discussions, the parties were still unable to resolve their discovery
dispute, Plaintiff would be granted leave to file a motion to compel. Id.
The discovery dispute between the parties continued. On June 17, 2016, Plaintiff once
again requested the Court’s intervention by compelling Defendants to answer his interrogatories
and document requests. Doc. 87. In a June 24, 2016 letter, Defendants informed the Court that
they had requested that Plaintiff write them a letter setting forth his particularized objections to
their responses and objections to Plaintiff’s discovery demands. Doc. 89. Defendants indicated

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that Plaintiff responded by letter on May 16, 2016, but failed to address his objections. Id.
According to Defendants, Plaintiff had “repeatedly elected not to explain his positions in writing
to defense counsel or make good faith efforts to confer about the litigation.” Id. In an effort to
move the action forward, Defendants proposed that the parties proceed to conduct Plaintiff’s
deposition and that, at the deposition, the parties address and hopefully resolve any discovery
disputes in person. Id. On June 27, 2016, the Court directed Plaintiff to provide Defendants
with a detailed written explanation of his objections to their discovery responses. Doc. 92. In
the event that the parties were unable to resolve the dispute by July 27, 2016, the Court directed
the parties to proceed with Plaintiff’s deposition and to meet and confer regarding the discovery
dispute during the deposition. Id. The Court stated that if, after such discussion, the parties were
still unable to resolve their dispute, Plaintiff would be granted leave to file a motion to compel.
Id.
The dispute continued throughout the year, culminating in an Order of this Court, entered
October 17, 2016, directing Defendants to (i) provide Plaintiff with a written explanation of their
position regarding the scope of his discovery demands by no later than October 21, 2016;
(ii) depose Plaintiff by November 17, 2016 if they wished to do so; (iii) meet and confer with
Plaintiff regarding the discovery dispute at Plaintiff’s deposition; and (iv) provide the Court with
an update on Plaintiff’s deposition and the discovery dispute by no later than November 18,
2016. Doc. 101 (the “October 17, 2016 Order”).
On or around November 18, 2016, Plaintiff filed a motion to compel Defendants to
respond to his discovery demands. Doc. 107. According to Plaintiff, Defendants “disregarded”
the October 17, 2016 Order directing the parties to discuss the discovery dispute at Plaintiff’s
deposition. Id. Because Defendants had failed to provide the Court with an update on the

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discovery dispute by November 18, 2016, as directed in the October 17, 2016 Order, the Court
issued an Order to show cause for why Defendants should not be sanctioned for failure to
comply with the October 17, 2016 Order. Doc. 108.
Defendants filed a letter on December 5, 2016, explaining that their failure to provide the
Court with an update by November 18, 2016 was due to oversight. Doc. 109. Defendants
indicated that they deposed Plaintiff via videoconference on November 10, 2016, and attempted
to confer with Plaintiff regarding the discovery dispute after the deposition. Id. Defendants
stated that their efforts to confer with Plaintiff were unsuccessful because “Plaintiff was
unwilling to cooperate” and “was not willing to try to resolve the parties’ dispute.” Id. The
Court issued an Order on December 5, 2016 stating that it would not impose sanctions on
Defendants for failure to comply with the October 17, 2016 Order, and set a briefing schedule for
Plaintiff’s motion to compel. Doc. 110.
Defendants filed their opposition to Plaintiff’s motion to compel on December 19, 2016.
Doc 112. As an exhibit, Defendants included their objections to Plaintiff’s discovery demands.
Id. Defendants object to all of Plaintiff’s discovery requests and have not provided Plaintiff with
any discovery material. Id. According to Defendants, the parties disagree about the proper
scope of discovery. Doc. 112 at 1. Defendants submit that the scope of discovery should be
limited to Plaintiff’s alleged forcible shaving at the Manhattan Robbery Squad following his
arrest. See Doc. 112 at 2. In addition, Defendants object to many of Plaintiff’s discovery
demands on the basis that they purportedly (1) assume facts not established, and (2) rely on
factual premises which defendants deny and are unsupported by the evidence. Id. Defendants
assert that Plaintiff’s demands are “overbroad, unintelligible, vague, ambiguous, not sufficiently

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limited in scope in light of the single claim at issue, and are not proportional to the needs of the
case.” Id. at 1-2.
III.

Legal Standard
Federal district courts have broad discretion in deciding motions to compel. See Grand

Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 488 (2d Cir. 1999). The scope of discovery is
generally limited to any “nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The
information sought need not be admissible at trial as long as the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Relevance
“has been construed broadly to encompass any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
“The party resisting discovery bears the burden of showing why discovery should be
denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009). “General
and conclusory objections as to relevance, overbreadth, or burden are insufficient to exclude
discovery of requested information.” Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL
22434101, at *1 (S.D.N.Y. Oct. 23, 2003). “Rather, a party resisting discovery has the burden of
showing ‘specifically how, despite the broad and liberal construction afforded the federal
discovery rules, each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive.’” Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase &

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Co., 297 F.R.D. 99, 102–03 (S.D.N.Y. 2013) (quoting Compagnie Francaise d’Assurance Pour
le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984).
IV.

Discussion
Plaintiff requests that Defendants answer a set of 20 interrogatories and 13 document

requests. Defendants assert that Plaintiff’s demands are “overbroad, unintelligible, vague,
ambiguous, not sufficiently limited in scope in light of the single claim at issue, and are not
proportional to the needs of the case.” See Doc. 112 at 1-2. Because Defendant’s main objection
to the requested discovery is based on relevance, the Court, at the outset, defines the appropriate
scope of discovery. As stated, the Court dismissed Plaintiff’s claim based on the act of shaving.
However, his claim of excessive force during the shaving, which allegedly occurred immediately
prior to the line-up, remains. Accordingly, discovery reasonably related to the events leading up
to, during, and after the shaving are relevant to Plaintiff’s remaining claim and within the scope
of discovery.
For ease of reference, the Court groups Plaintiff’s discovery requests thematically into the
following categories:
1. Requests regarding the details surrounding the alleged shaving incident (Interrogatories
1, 5, 11, 14, 16, 19 and document requests 2 and 3);
2. Requests regarding the use of force to shave Plaintiff (Interrogatories 2, 12 and document
requests 8, 10, 11);
3. Requests regarding the police-arranged line-up (Interrogatories 3, 4, 6, 9, 10, 15, and
document requests 5, 6, 7, 9);
4. Requests for information that Defendants intend to use for their defense (Interrogatories
18, 20 and document request 12); and
5. Requests for information about Defendants (Interrogatories 7, 8, 13, 17 and document
request 4).
Each category is discussed in turn.
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1. Plaintiff’s requests for details regarding the alleged shaving incident
Interrogatories 1, 5, 11, 14, 16, 19 and document requests 2 and 3 concern the details of
the alleged shaving incident on December 16, 2008. Plaintiff requests that Defendants identify
all persons who were present at or had knowledge of the events before the police-arranged lineup, where Defendants were at the time of the shaving, their shifts and locations on the date of the
shaving, the exact time that the Plaintiff came into their custody on the date of the shaving, and
who gave Defendants the order to shave Plaintiff’s facial hair. Plaintiff also requests all
documents regarding the incident. Doc 112.
Contrary to Defendants’ assertion, details surrounding the shaving incident are within the
scope of discovery because they are reasonably related to Plaintiff’s claim of excessive force.
While the shaving itself is no longer a subject of this action, Plaintiff alleges that Defendants
used excessive use of force when they shaved him. Thus, information reasonably related to the
events leading up to, during, and after the shaving are relevant and proportional to the needs of
the case. Moreover, Plaintiff’s requests are neither vague nor ambiguous as Defendants contend.
Defendants are directed to produce the information requested and to specifically state if
they do not have information that is responsive to Plaintiff’s particular discovery requests in this
category.

2. Plaintiff’s requests for information regarding use of force to shave Plaintiff
Interrogatories 2 and 12 and document requests 8, 10, and 11 concern the use of force
allegedly used to shave Plaintiff. Plaintiff requests that Defendants identify all requests that were
made to force Plaintiff to be shaved and identify all occasions where Defendants had to use force
during their interactions with Plaintiff. Plaintiff further requests Defendants to produce the

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warrant and judge’s order to use force in holding Plaintiff down to shave him, the use of force
reports, and witness statements of descriptions to warrant the shaving of Plaintiff. Doc 112.
Information regarding the use of force during the shaving incident falls squarely within
the scope of discovery. Any requests made to shave Plaintiff forcibly and to identify Defendants’
use of force are directly relevant to Plaintiff’s remaining claim. Fed. R. Civ. P. 26(b)(1),
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329
U.S. 495, 501 (1947)).
Defendants are directed to produce the information requested and to specifically state if
they do not have information that is responsive to Plaintiff’s particular discovery requests in this
category.

3. Requests regarding the police-arranged line-up
Interrogatories 3, 4, 6, 9, 10, 15 and document requests 5, 6, 7, 9 concern the identities of
all persons involved in the making of the line-up, all persons who participated in the line-up,
information on whether Defendants have been trained on how to conduct a proper line-up, and
the dates of Defendants’ last trainings prior to the December 16, 2008 incident. Plaintiff also
requests that Defendants identify the Standard Operating Procedure (“SOP”) for conducting a
line-up and to provide related documents, the warrant to alter Plaintiff’s facial hair, and the
judge’s order to alter the appearance of Plaintiff to stand in the line-up. Doc 112.
Defendants contend that Plaintiff’s requests are beyond the scope of discovery because
they are vague, ambiguous, overbroad. Plaintiff’s request for the identity of all persons who
were present at the line-up is neither vague nor ambiguous. Individuals who were present at the
line-up may have witnessed the alleged use of excessive force during Plaintiff’s shaving, which

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directly bears on Plaintiff’s claim. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).
However, given that the only issue remaining is the excessive force claim, the details
surrounding the line-up itself are not likely to lead to the discovery of admissible evidence and
are not proportional to the needs of the case insofar as the burden and expense of producing
information outweigh any likely benefit. The Court finds that requests regarding the actual lineup, which took place after the shaving, fall outside the scope of discovery because they are not
sufficiently relevant to Plaintiff’s excessive force claim.
Defendants are directed to respond to interrogatory 4, which asks Defendants to identify
and list all persons who participated in the police-arranged line-up, and to specifically state if
they do not have responsive information. Plaintiff’s motion to compel responses to
interrogatories 3, 6, 9, 10, 15, and document requests 5, 6, 7, 9 is denied.
4. Plaintiff’s requests for information that Defendants intend to use in their defense
Interrogatories 18 and 20 and document request 12 concern information Defendants
intend to use in their defense. Plaintiff requests that Defendants identify contact information of
individuals likely to have information that may be used to support their defense, a copy of all
documents that may be used to support their defense, and all disclosures and correspondence
between Defendants and counsel. Doc 112.
The Court agrees with Defendants that Plaintiff’s request for information used to support
the defense is overbroad and not sufficiently limited in scope. These requests are not tied to a
specific subject matter or time, and therefore bear no specific relevance to the claims or defenses
raised in this matter. Mirmina v. Genpact LLC, No. 3:16CV00614, 2017 WL 2559733, at *7 (D.
Conn. June 13, 2017). Additionally, the Court agrees with Defendants that the burden of

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responding to this portion of Plaintiff’s discovery requests outweighs its likely benefit. Fed. R.
Civ. P. 26(b)(1). Taking into account the needs of the case and the importance of the proposed
discovery in its resolution, these requests do not reasonably bear on Plaintiff’s excessive force
claim. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). These requests are not
relevant to Plaintiff’s claims, and instead appear to be an investigation into Defendants’
arguments against Plaintiff’s contention, which is not allowed. Haber v. ASN 50th St., LLC, 272
F.R.D. 377, 382 (S.D.N.Y. 2011) (Plaintiff is not permitted to use the discovery process to
investigate into unrelated matters). Moreover, to the extent Plaintiff seeks discovery regarding
correspondence between Defendants and their counsel, such communication is protected by
attorney-client privilege.
Plaintiff’s motion to compel responses to these requests is denied.
5. Plaintiff’s request for information about Defendants
Interrogatories 7, 8, 13, 17 and document request 4 concern information about
Defendants. Plaintiff asks whether Defendants have been the subject of police brutality and the
number of years they have been employed by the NYPD. Plaintiff also requests that Defendants
identify every lawsuit to which they have been a party and asks whether Defendants have been
the subject of complaints made to the Civilian Complaint Review Board and the Internal Affairs
Bureau and to produce all related documents. Doc 112.
To the extent that Plaintiff requests information regarding prior investigations,
complaints, or lawsuits against Defendants on the subject matter of use of excessive force, they
are within the scope of discovery. Information regarding allegations of Defendants’ past use of
excessive force may reasonably bear relevance to Plaintiff’s own claim. However, Plaintiff’s
requests go beyond that. The Court will not order Defendants to produce discovery material

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