Levy v. Harrington et al

Filing 31

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 26 Motion to CompelPlaintiff's motion to compel production of documents reviewed by this Court in camera is denied. Defense counsel shall contact Chambers to make arrangements to retrieve the in camera documents.So Ordered. Signed by Hon. Hugh B. Scott on 12/5/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
JUSTIN L. LEVY,
Plaintiff,

Hon. Hugh B. Scott

09CV720A
v.
Order

RAYMOND HARRINGTON,
CITY OF BUFFALO,
Defendants.
_________________________________________
Before the Court is plaintiffs’ motion to compel (Docket No. 26). In particular, this
Order follows the in camera review of the personnel and disciplinary records of officer Raymond
Harrington, pursuant to an earlier Order of this Court (Docket No. 30, Order of Oct. 31, 2011),
Levy v. Harrington, 2011 U.S. Dist. LEXIS 125496 (W.D.N.Y. Oct. 31, 2011) (Scott, Mag. J.),
familiarity with which is presumed.
Defendants timely submitted the materials for in camera review on November 28, 2011.
BACKGROUND
This is a removed civil rights action alleging excessive force, false arrest, false
imprisonment, malicious prosecution, unreasonable seizure, deprivation of liberty without due
process (Docket No. 1, Notice of Removal, Ex. A, State Compl.). Plaintiff alleges that defendant
City of Buffalo Police officer Harrington arrested him without probable cause. In the state court
action, plaintiff asserts that he was falsely arrested, maliciously prosecuted, and that Harrington

violated his civil rights. (Id.) Defendants removed this action on August 18, 2009 (Docket
No. 1), and answered on the next day (Docket No. 3).
Plaintiff moves to compel complete answers to his Interrogatories and document demands
from defendant Officer Harrington (Docket No. 26, Pl. Atty. Decl. ¶¶ 5-8). Plaintiff seeks
Harrington’s disciplinary records involving allegations of excessive use of force (id. ¶¶ 8, 10,
Exs. A, C). Defendants invoked New York State Civil Rights Law § 50-a as precluding
disclosure (id. ¶¶ 9, 11-12, Exs. B, D, E).
This Court recognized that Civil Rights Law § 50-a did not create an evidentiary privilege
recognized by federal courts to preclude discovery, Pierce v. Ottaway, No. 06CV644, 2009 U.S.
Dist. LEXIS 21866, at *9-11 (W.D.N.Y. Mar. 18, 2009) (Curtin, J.); see also Martin v. Lamb,
122 F.R.D. 143, 147 (W.D.N.Y. 1988) (Fisher, Mag. J.) (Docket No. 30, Order of Oct. 31, 2011,
at 4-5), Levy, supra, 2011 U.S. Dist. LEXIS 125496. The Court then ordered the in camera
inspection of Harrington’s records to determine their relevance to plaintiff’s discovery demands
and whether they should be disclosed to plaintiff.
DISCUSSION
Before deciding the relevance and balancing the interest in keeping these records
confidential, this Court must review the personnel records in question in camera, Pierce, supra,
2009 U.S. Dist. LEXIS 21866, at *2, 9-10; Martin, supra, 122 F.R.D. at 147, 148. In Pierce,
Judge Curtin found after in camera inspection that there was nothing “remotely relevant” to
plaintiff’s claims in the officers’ personnel records, Pierce, supra, 2009 U.S. Dist. LEXIS 21866,
at *10-11.

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If the personnel and disciplinary records indicate that the officer was exonerated from any
disciplinary complaints charged, those records need not be produced, see Law v. Cullen, 613 F.
Supp. 259, 262 (S.D.N.Y. 1985) (unsubstantiated civilian complaints merely charges, not actual
findings of abuse); see also Hart v. Goord, No. 08CV681, 2010 U.S. Dist. LEXIS 39888, at *5
(W.D.N.Y. Apr. 22, 2010) (Scott, Mag. J.) (denying discovery of grievances against corrections
officer found to be unsubstantiated, with its probative value being quite limited); Woodward v.
Mullah, No. 08CV463, 2010 U.S. Dist. LEXIS 77065, at *8 (W.D.N.Y. July 29, 2010)
(McCarthy, Mag. J.); Rasmussen v. City of New York, No. 10 Civ. 1088, 2011 U.S. Dist. LEXIS
10089, at *24-28 (E.D.N.Y. Feb. 2, 2011)(court there recognized that plaintiffs, in making
argument that authorities in other cases erred in not finding substantial claims of abuse, took
upon themselves the burden of showing that “every other unsubstantiated complaint on which
they rely entailed a constitutional violation” and that the sample of cases cited were
representative in order to resist a defense summary judgment motion).
Officer Harrington’s Records
This Court has reviewed the personnel and disciplinary records of Officer Harrington
produced by defendants. The personnel records consist of pay and financial records, attendance
and other personnel records, and various commendations noted in the officer’s file. They do not
indicate any litigation or claims commenced against this officer. These materials are not
remotely relevant to plaintiffs’ claims and therefore are not to be produced.
Officer Harrington’s disciplinary records during the relevant period (the past ten years)
involve six incidents. Two called for administrative conferences regarding procedures and did
not involve incidents similar to the case at bar. Two more involved automobile accidents where
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Harrington was driving; in both of which he was exonerated or charges were not sustained. He
was exonerated on another alleged procedural violation. The last complaint, Internal Number
2007-118, Harrington was the back up officer during an arrest where he had to remove the
suspect unwillingly from his vehicle and restrain him to hand cuff the suspect. The charges there
were not sustained. These records thus are not to be produced.
Therefore, plaintiff’s motion to produce these records (Docket No. 26) is denied.
CONCLUSION
For the reasons stated above, regarding so much of plaintiff’s motion to compel (Docket
No. 26) seeking production of the individual defendant’s personnel or disciplinary records, this
motion is denied as discussed above. Defense counsel shall make arrangements with Chambers
of the undersigned to retrieve the copies of the in camera documents reviewed by this Court.
So Ordered.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Buffalo, New York
December 5, 2011

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