Marom et al v. The City of New York et al

Filing 109

MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, the motion to set aside or modify the Magistrate Judge's Order of November 30, 2016 is DENIED. SO ORDERED. (Signed by Judge P. Kevin Castel on 4/21/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YOTAM MAROM, MIRIAM ROCEK, and DON
FITGERALD,
Plaintiffs,
-against-

15-cv-2017 (PKC)
MEMORANDUM
AND ORDER

THE CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT (“NYPD”) CHIEF OF
DEPARTMENT JOSEPH ESPOSITO, NYPD
DEPUTY INSPECTOR EDWARD WINSKI,
NYPD LIEUTENANT FRANK VIVIANO,
NYPD SERGEANT FIOR BLANCO, NYPD
LEGAL BUREAU OFFICER OLEG
CHARNYAVSKY, NYPD OFFICER MICHAEL
GALGANO, SHIELD NO. 2671, NYPD
OFFICER CYNTHIA BOYLE, SHIELD NO.
6663, NYPD OFFICER STEVEN VALENTINE,
SHIELD NO. 13585, and NYPD OFFICERS
JOHN and JANE DOE #1-15,
Defendants.
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CASTEL, District Judge:
Plaintiffs bring this action against various defendants in connection with
plaintiffs’ March 2012 arrests in connection with the Occupy Wall Street protests in Zuccotti
Park. On November 22, 2016, plaintiffs moved to compel the discovery of certain non-party
arrest processing information, including Online Booking System (“OLBS”) Arrest Reports,
Online Prisoner Arraignment System (“OLPA”) Reports, as well as the memo book entries of
certain officers of the New York City Police Department (“NYPD”), which contain notes of their
observations and actions. (Dkt. 81.) By order dated November 30, 2016, (“November 30, 2016
Order”) Magistrate Judge Sarah Netburn granted plaintiffs’ request in full. (Dkt. 86.)

Defendants have moved pursuant to Rule 72(a), Fed. R. Civ. P., to set aside the November 30,
2016 Order. (Dkt. 90.) For reasons to be explained, the Court declines to modify or set aside the
Magistrate Judge’s Order because it is not clearly erroneous or contrary to law.
PROCEDURAL HISTORY
Plaintiffs Yotam Marom, Miriam Rocek, and Don Fitzgerald brought this action
against the City of New York, eight named individual defendants employed by the NYPD, and
15 unnamed individual NYPD Officers (Officers John and Jane Doe #1-15), asserting nine
claims under 42 U.S.C § 1983 and the First, Fourth, Sixth, and Fourteenth Amendments.
Plaintiffs alleged in their complaint that certain rights of theirs were violated in connection with
their participation in a protest in Zuccotti Park marking the six-month anniversary of the Occupy
Wall Street movement. Plaintiffs alleged that they were falsely arrested, subjected to excessive
use of force, excessive detention, and malicious abuse of process, prevented from exercising
their First Amendment rights, deprived of their rights to a fair trial, and denied the equal
protection of the laws. By an order of this Court dated March 7, 2016, plaintiffs’ claims were
dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief
could be granted, except for Marom’s, and Rocek’s false arrest, First Amendment retaliation, and
certain failure to intervene claims, and Fitzgerald’s claim of excessive force. (Dkt. 48.) By
order of this Court dated July 29, 2016, the Court reinstated plaintiffs’ fair trial claims. (Dkt.
66.)
This action was referred to Magistrate Judge Netburn for general pretrial
supervision. Plaintiffs moved to compel the discovery of certain non-party arrest processing
information, including OLBS Arrest Reports, OLPA Reports, and the memo book entries of

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certain NYPD officers. Magistrate Judge Netburn granted plaintiffs’ request and defendants
objected to this ruling.
FACTUAL BACKGROUND
As part of NYPD arrest processing, an OLBS Arrest Report is created for each
arrest. (Pl.’s Mem. in Opp., January 2, 2017, Dkt. 93 (“Pl.’s Opp.”) at 11.) An OLBS Arrest
Report is a standardized NYPD form filled out electronically that includes a “DETAILS” section
in which an officer sets forth a statement of facts regarding the conduct underlying the arrest, a
field in which an officer indicates whether force was used during the arrest, and fields identifying
other personnel who assisted in creating the Report. (Id.) When the officer filling out an OLBS
Arrest Report is not the officer who observed the unlawful conduct for which the arrest was
made, that officer must indicate that they were informed by an observing officer of the facts set
forth in the Report. (Id. at 12.)
OLPA Reports are digitally accessible documents that reflect the arrest processing
steps an NYPD officer makes, listing the times and locations at which these steps were taken,
and including such information as custody time, arraignment time, arraignment status, and
lodging status/history. (Pl.’s November 22, 2016 Letter, Dkt. 81 at 4; Dkt. 81-2.)
DISCUSSION
In reviewing a non-dispositive order of a magistrate judge, “[t]he district judge in
the case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Rule 72(a), Fed. R. Civ. P.; see also 28 U.S.C. §
636(b)(1)(A) (a district court does not disturb a magistrate judge’s rulings on non-dispositive
matters unless they are “clearly erroneous or contrary to law”).

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Defendants argue that the materials sought by plaintiffs are irrelevant, and thus
Magistrate Judge Netburn misapplied Rule 26(b), Fed. R. Civ. P. (Pl.’s Rule 72 Motion,
December 12, 2016, Dkt. 90 (“Pl.’s R. 72”) at 5-6.) Rule 26(b)(1), Fed. R. Civ. P., states that:
Parties may obtain discovery regarding 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.
Defendants argue that, because plaintiffs have admitted to taking actions that
constitute probable cause for arrest, nothing in the materials sought advance either plaintiffs’
false arrest or fair trial claims. (Pl.’s R. 72 at 4-5.)
Defendants’ argument lacks merit. The existence of probable cause to arrest is
not dispositive of a fair trial claim. See Garnett v. Undercover Officer C0039, 838 F.3d 265, 280
(2d Cir. 2016); Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129-30 (2d Cir. 1997). “[E]ven if
there is probable cause to arrest a defendant, an officer who subsequently fabricates that
defendant’s confession ‘and forwards that information to prosecutors . . . violates the accused’s
constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is
redressable in an action for damages under 42 U.S.C. § 1983.’” Garnett, 838 F.3d at 268
(quoting Ricciuti, 124 F.3d at 130) (omission in original). The same applies to fabrications
regarding an officer’s observation of alleged criminal activity. Id. at 274 (“[A] Section 1983
plaintiff may sue for denial of the right to a fair trial based on a police officer’s fabrication of
information . . . when the information fabricated is the officer’s own account of his or her
observations of alleged criminal activity, which he or she then conveys to a prosecutor.”)

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Plaintiffs argue that the OLBS Arrest Reports, OLPA Reports, and the memo
book entries are relevant to the inquiry into whether the arresting documents were prepared or
signed by officers or supervisors who had no personal knowledge of the facts pertinent to the
charges for arrest and whether some or all of the arrestees were detained on the basis of
identically worded allegations, which would suggest that at least some of the documents
contained inaccurate information. (Pl.’s Opp. at 4-5.)
The Court finds that Magistrate Judge Netburn’s order was not clearly erroneous
or contrary to law. The documents plaintiffs seek are relevant to at least their fair trial claims.
Magistrate Judge Netburn’s determination that defendants’ production of the documents would
not be disproportionate or unduly burdensome was reasonable. Further, as Magistrate Judge
Netburn correctly noted, “there is no conflict [here] between the federal discovery standard and
[New York Crim. Proc. Law § 160.50], as Plaintiffs have expressly consented to the redaction of
all personally identifying information except arrest numbers on all of the documents sought.”
(November 30, 2016 Order at 3.)
Finally, Magistrate Judge Netburn’s determination that the Mass Arrest Report
was relevant, and her order that defendants’ produce this report subject to her described
redactions, were not clearly erroneous or contrary to law.

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CONCLUSION
For the foregoing reasons, the motion to set aside or modify the Magistrate
Judge’s Order of November 30, 2016 is DENIED.
SO ORDERED.

Dated: New York, New York
April 21, 2017

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