Almonte v. New York Police Department et al
Filing
35
OPINION AND ORDER: I write to resolve the parties' disputes concerning certain discovery requests served by plaintiff. The discovery requests in issue appear to be primarily aimed at obtaining similar act evidence concerning the individual defe ndants. (As further set forth in this Order.) To the extent the foregoing overrules defendants' objections, defendants are to produce responsive documents no later than December 9, 2016. (Signed by Magistrate Judge Henry B. Pitman on 11/18/2016) Copies Mailed By Chambers. (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MARCO ALMONTE,
:
Plaintiff,
KENNETH HINES, et al.,
Defendants.
15 Civ. 6843 (PAE)(HBP)
:
-against-
:
OPINION
AND ORDER
:
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I write to resolve the parties' disputes concerning
certain discovery requests served by plaintiff.
This is an action brought pursuant to 42 U.S.C. § 1983
in which plaintiff alleges that two New York City Police Officers
stopped and frisked him without cause or reasonable suspicion,
physically assaulted him and subsequently arrested him without
probable cause.
Plaintiff claims that as a result of the encoun-
ter he suffered a fractured wrist and hand and severe contusions
and cuts to his forearm.
The discovery requests in issue appear to be primarily
aimed at obtaining similar act evidence concerning the individual
defendants.
The admissibility of similar act evidence in Section
1983 excessive force cases has been met with mixed responses in
this Circuit.
In O'Neill v. Krzeminski, 839 F.2d 9 (2d Cir.
1988), all three members of the appellate panel took a different
view as to the admissibility of the evidence but unanimously
agreed that if there was error, it was harmless.
In Berkovich v.
Hicks, 922 F.2d 1018 (2d Cir. 1991), the Court of Appeals held
that the exclusion of such evidence was not an abuse of discretion.
And in Ismail v. Cohen, 899 F.2d 183 (2d Cir. 1990), the
Court of Appeals held that the admission of such evidence was not
an abuse of discretion.
These cases demonstrate that the admis-
sibility of similar act evidence in an excessive-force case
cannot be resolved by a broad-brush rule but must be the subject
of an inquiry into the specific facts of the case.1
Although the foregoing decisions are material to the
dispute before me, the issue before me is relevance within the
meaning of Fed.R.Civ.P. 26(b)(1), not admissibility.
Even after
the December 2015 amendments to the Federal Rules of Civil
Procedure, the quantum of relevance necessary to warrant discovery is still lower than the quantum of relevance necessary for
admissibility at trial.
A.M. v. Am. Sch. for the Deaf, No.
3:13CV1337 (WWE), 2016 WL 1117363 at *2 (D. Conn. Mar. 22, 2016);
1
The opinions that do find such similar act admissible in an
excessive force case have usually relied on Fed.R.Evid. 404(b)
and have found the evidence to be relevant to the issue of the
defendants' intent. See Ismail v. Cohen, supra, 899 F.2d at 18889; O'Neill v. Krzeminski, supra, 839 F.2d at 11 n.1.
2
accord Kelley v. City of Hamden, No. 3:15CV00977 (AWT), 2016 WL
5348568 at *4 (D. Conn. Sept. 23, 2016); see State Farm Mut.
Auto. Ins. Co. v. Fayda, 14 Civ. 9792 (WHP)(JCF), 2015 WL 7871037
at *2 (S.D.N.Y. Dec. 3, 2015) (Francis, M.J.), aff'd, 2016 WL
4530890 (S.D.N.Y. Mar. 24, 2016) (Pauley, D.J.).
The defendants do not challenge plaintiff's requests to
the extent plaintiff is seeking substantiated prior complaints
against the individual defendants, but defendants do object to
the plaintiff's requests to the extent plaintiff seeks information concerning unsubstantiated complaints.
Although this is a
distinction that Corporation Counsel routinely draws with respect
to such requests, counsel does not explain the reason for this
distinction.
As far as the record reflects, plaintiff was not a
party to any prior disciplinary proceeding against the individual
defendants nor was plaintiff a party to any proceeding before the
Civilian Complaint Review Board ("CCRB").
Thus, he cannot be
bound by any application of the doctrines of collateral estoppel
or res judicata.
In addition, the mere fact that the CCRB found
a prior charge to be unsubstantiated does not necessarily imply
actual innocence; a charge may be found to be unsubstantiated
simply because the complaining witness failed to appear.
I
conclude that the better view is that plaintiff is entitled to
discovery of both substantiated and unsubstantiated charges of
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misconduct concerning similar alleged conduct.
Pacheco v. City
of New York, 234 F.R.D. 53, 54 (E.D.N.Y. 2006); Fountain v. City
of New York, 03 Civ. 4526 (RWS), 2004 WL 941242 at *2 (S.D.N.Y.
May 3, 2004) (Sweet, D.J.) (collecting cases), reconsidered in
part, 2004 WL 1474695 (S.D.N.Y. June 30, 2004).
Although the
complaints themselves would, in all probability, be inadmissible
as hearsay, they may permit plaintiff to identify and locate the
complainant and secure evidence of similar acts in admissible
form.
To the extent that defendants are willing to produce
responsive information and documents, they state that they are
willing to do so only after an appropriate protective order is
entered.
Defendants, however, offer no explanation of why a
protective order is appropriate.
Accordingly, to the extent
defendants are claiming that a protective order is appropriate
with respect to the discovery sought by plaintiff, their application is denied without prejudice to a renewed application that
explains why a protective order is appropriate.
With these general principles in mind, I turn to the
specific requests in issue.
Interrogatory No. 1.: On the night of December 5th,
2013 police officer Kenneth Hines was on or had previously been placed on "performance monitoring" for
excessive complaints that he used excessive force. The
plaintiff requests, exposure into the records [sic] and
4
all documents related including all facts related as,
when, why and for how long officer "Hines" was placed
on performance monitoring.
Ruling:
Defendants are to produce responsive docu-
ments, if any, for a period of five years prior to the date of
the alleged incident giving rise to this action to the extent, if
any, the performance monitoring was the result of either Officer
Hines' actual or alleged use of excessive force or falsification
of official documents.
Interrogatory No. 2: Plaintiff requests, copies of all
reports where excessive force was alleged to have been
committed by officer Kenneth Hines and officer Laura
Cadavid to which false or exaggerated arrest reports
and complaints were filed.
Ruling:
Defendants are to produce responsive docu-
ments, if any, for a period of five years prior to the date of
the alleged incident giving rise to this action to the extent, if
any, such documents reflect allegations that Officer Hines or
Officer Cadavid either used excessive force or falsified official
documents.
Interrogatory No. 3: Plaintiff requests,
Complaint Review Board complaints against
P.O. Kenneth Hines and P.O. Laura Cadavid
names, telephone numbers and addresses of
plainants.
Ruling:
the Civilian
Defendants
including the
said com-
Defendants are to produce responsive docu-
ments, if any, for a period of five years prior to the date of
the alleged incident giving rise to this action to the extent, if
5
any, such documents reflect allegations that Officer Hines or
Officer Cadavid either used excessive force or falsified official
documents.
Interrogatory No. 4: Plaintiff requests, all documentary evidence and facts or omissions [sic] directly or
indirectly related to the case where officer Kenneth
Hines' service weapon was used in a crime.
Ruling:
The defendants' objections are sustained.
The
requested discovery is irrelevant to plaintiff's claims of the
use of excessive force and false arrest.
The information sought
does not make plaintiff's allegations more likely or less likely
true.
Interrogatory No. 5: Plaintiff requests, all documentary evidence, 911 calls recorded, complaint[s], photos
and reports related to officer Kenneth Hines being
arrested during [Hurricane] Sandy for domestic violence.
Ruling:
The defendants' objections are sustained.
The
requested discovery is irrelevant to plaintiff's claims of the
use of excessive force and false arrest.
The information sought
does not make plaintiff's allegations more likely or less likely
true.
Interrogatory 6: Plaintiff requests, all documents,
photos, complaints, hospital reports related to the
case of Pujols, et al. v. City of New York, et al., 11
CV 3328 (S.D.N.Y.); Wright and Abdul Bashir v. City of
New York, 07 CV 2093 (S.D.N.Y.); Alpha Jalloh v. The
City of New York and Kenneth Hines, 13 CV 1008; Solano,
et al. v. City of New York, 0309062/2012.
6
Ruling:
Pujols, Wright and Jalloh are all other
actions brought against Officer Hines alleging excessive force
and false arrest.
settled.
It also appears that all three matters were
I shall assume that Solano was a similar matter,
although I do not have access to any information concerning the
matter.
In addition to reasserting their general objections,
defendants object to this request as follows:
"Defendants
further object [to Interrogatory No. 6] to the extent it implicates the sealing provision of N.Y.C.P.L. § 160.50, § 160.55, §
190.25(4), F.C.A. § 375.1 and/or HIPPAA [sic]."
New York Criminal Procedure Law Sections 160.50 and
160.55 relate to the sealing of records after the completion of a
state criminal proceeding in which the charges are dismissed or
result in convictions for non-criminal offenses.
Because the
foregoing actions are civil actions, defendants' blanket reliance
on these provisions to block discovery of all documents concerning several civil actions is non-sensical and appears to violate
Fed.R.Civ.P. 26(g)(1)(B).
Defendants' reliance on New York
Criminal Procedure Law Section 190.25(4), which relates to the
confidentiality of grand jury proceedings, and Family Court Act
Section 375, which relates to the sealing of certain Family Court
proceedings, suffers from the same defect.
Finally, defendants'
non-specific citation of Health Insurance Portability and Ac7
countability Act ("HIPAA"), with no explanation of how the
statute applies to litigation records, is defective under
Fed.R.Civ.P. 34(b) (2) (B).
As reported on Westlaw, HIPAA, exclu-
sive of its implementing regulations, is 95 pages long.
Defen-
dants' blanket reference to "HIPPAA [sic]", with no citation to a
specific statutory provision or regulation, in response to a
document request seeking documents concerning closed civil
litigations does not "state with specificity the grounds for
objecting to the request, including the reasons" as required by
Fed.R.Civ.P 34(b) (2) (B) and also appears to violate Fed.R.Civ.P.
26(g) (1) (B).
Because defendants have not validly stated objec-
tions to Interrogatory 6, they are directed to produce responsive
documents.
To the extent the foregoing overrules defendants'
objections, defendants are to produce responsive documents no
later than December 9, 2016.
Dated:
New York, New York
November 18, 2016
SO ORDERED
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Copies mailed to:
Mr. Marco Almonte
Reg. No. 69856-054
FCI - Otisville
P.O. Box 1000
Otisville, New York
10963
Eviana L.F. Englert, Esq.
Assistant Corporation Counsel
City of New York
NYC Law Department
100 Church Street
New York, New York 10007
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