Worthy v. City of Buffalo et al

Filing 32

DECISION AND ORDER denying 23 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr. on October 9, 2013. (APG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARCUS A. WORTHY,
11-CV-872A(Sr)
Plaintiff,
v.
CITY OF BUFFALO, et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #6.

Plaintiff, Marcus A. Worthy, commenced this action alleging that his rights
under the Fourth and Fourteenth Amendments to the United States Constitution and
Title 42, United States Code, Section 1983 were violated by reason of the defendants’
actions. Specifically, as against defendants Corey Krug, William Macy, Thomas
Herbert, Joseph Paskiewicz, Melinda Jones and Brian Strobele, plaintiff asserts claims
under Title 42, United States Code, Section 1983 for excessive force, false arrest,
malicious prosecution and malicious abuse of process. As against defendant City of
Buffalo, plaintiff asserts a single claim for municipal liability under Title 42, United
States Code, Section 1983 and Monell v. New York Department of Social Services, 436
U.S. 658 (1978). Presently pending is plaintiff’s motion to compel the disclosure of

“defendants’ disciplinary and complaint (both substantiated and unsubstantiated)
histories of excessive force or false reporting as Buffalo Police Officers for the past ten
years.” Dkt. #23.

BACKGROUND
Plaintiff, Marcus A. Worthy, alleges that on August 29, 2010 at
approximately 10:30 p.m., he was standing and speaking with an acquaintance on
private property, the porch outside 52 Langmeyer Street, Buffalo, New York. Dkt. #1, ¶
10. At the time, plaintiff alleges that he was a security-guard trainee in possession of a
valid pistol permit, had just completed a firearms training course and was wearing his
licensed firearm in its holster. Id. at ¶ 11. The complaint alleges, upon information and
belief, that the City of Buffalo Police Department had just received a call earlier that
evening concerning a domestic dispute at a nearby location where an individual had
brandished a sword. Id. at ¶ 12. At approximately 10:40 p.m., defendants Krug, Macy,
Herbert, Paskiewicz and Jones arrived at 52 Langmeyer Street and began to run
towards plaintiff with guns drawn. Id. at ¶¶ 13 and 14. Thereafter, the complaint
alleges,
15. Plaintiff heard those Defendants shout something, but
before he could decipher what they were saying, those
Defendants struck Plaintiff in the back, causing him to fall
forward. Defendants then seized Plaintiff’s arms and head,
held down Plaintiff’s head, and cuffed Plaintiff’s hands
behind his back.
16. At this point, Defendants realized that Plaintiff had a
gun. Plaintiff attempted to lift his head to speak to
Defendants, and stated that he had a permit for the gun in
his car, which was parked on the street in front of the house.
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17. In response, Defendant Krug beat Plaintiff in the back of
the head with Defendant Krug’s police department-issued
metal flashlight.
18. Defendant Krug administered several blows with his
metal flashlight, causing severe swelling and bleeding to
Plaintiff’s head and causing Plaintiff to feel dizzy. Plaintiff
was handcuffed behind his back at the time each such blow
was administered.
19. After Plaintiff fell over the back of the police car [sic]
under the force of the blows administered by Defendant
Krug with his metal flashlight, Defendant Herbert removed
Plaintiff’s firearm from its holster and seized it.
20. Defendants Krug, Herbert, Macy, and Paskiewicz then
proceeded to walk Plaintiff to a police cruiser and deposit
him in the back seat thereof.
21. During the aforementioned excessive use of force and
unlawful arrest of Plaintiff, Defendant Jones looked on and
silently approved.
22. After Plaintiff was deposited in the police cruiser,
Defendants searched Plaintiff’s car, locating a valid pistol
permit, a valid license for the seized pistol, and
documentation of Plaintiff’s completion of firearms and other
security guard training courses.
Dkt. #1, ¶¶ 15-22. Plaintiff’s complaint further alleges that defendants Krug, Herbert,
Macy, Paskiewicz and Jones conspired to cover up their unlawful use of force and
arrest of plaintiff by bringing false criminal charges of resisting arrest and obstructing
governmental administration. Ultimately, the six charges were presented to an Erie
County Grand Jury and the Grand Jury voted to dismiss all six charges against the
plaintiff.

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The plaintiff asserts the following claims pursuant to Title 42, United
States Code, Section 1983: excessive force [Count 1] against defendants Krug,
Herbert, Macy, Paskiewicz and Jones; municipal liability [Count 2] against the City of
Buffalo; false arrest [Count 3] against defendants Krug, Herbert, Macy, Paskiewicz and
Jones; malicious prosecution [Count 4] against Krug, Herbert, Macy, Paskiewicz, Jones
and Strobele; and, malicious abuse of process [Count 5] against Krug, Herbert, Macy,
Paskiewicz, Jones and Strobele. In addition, plaintiff seeks punitive damages against
defendants Krug, Herbert, Macy, Paskiewicz, Jones and Strobele for their conduct.

In the instant motion, plaintiff describes that in response to his request for
disclosure of “defendants’ substantiated and unsubstantiated disciplinary history for
excessive force and false reporting,” counsel for defendants, by letter dated June 21,
2013, refused to disclose such records on the grounds that New York State Civil Rights
Law section 50-a “subjects the defendants’ personnel files to confidentiality.” Dkt. #24,
p.2. Thereafter, based on defendants’ refusal, plaintiff filed the instant motion to
compel. Dkt. #23. In their response to the instant motion, defendants state in pertinent
part, “with regard to certain items contained in an officers’ personnel files which can be
considered dealing with disciplinary issues and/or complaints against such officers, the
defendants continue to oppose release of such due to the confidentiality provisions of
Civil Rights Law Section 50-A and Federal Court decisions.” Dkt. #27, p.2.

Since the filing of the instant motion, the Court has granted the parties
request for an extension of the discovery deadline to October 15, 2013 and the
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deadline to file dispositive motions to December 1, 2013. Dkt. #29. On September 20,
2013, this Court received a letter request from counsel for the plaintiff, with the consent
of counsel for the defendants, seeking another extension of time to complete
depositions. In the letter, counsel stated that the parties had set aside the dates of
October 17, 18, 21 and 22 for depositions. On September 24, 2013, this Court issued
the following Text Order,
Plaintiff's counsel's September 20, 2013 letter request (on
consent) for an extension of the deadline to complete
depositions to October 31, 2013 is granted. With respect to
plaintiff's pending motion to compel [Dkt. #23] the disclosure
of "defendants' disciplinary and complaint (both
substantiated and unsubstantiated) histories of excessive
force or false reporting as Buffalo Police Officers for the past
ten years" (August 29, 2000 to August 29, 2010),
defendants are hereby directed to turn over the requested
records to the Court under seal for an in camera review. The
records shall be turned over to the Chambers of the Hon. H.
Kenneth Schroeder, Jr. no later than October 4, 2013 for this
in camera review. Upon completion of the in camera review,
this Court will issue its Decision and Order on the pending
motion to compel. SO ORDERED.
Dkt. #31. The Court received records containing complaints filed regarding some
defendants for in camera review on October 4, 2013.

DISCUSSION AND ANALYSIS
As stated above, defendants oppose plaintiff’s motion to compel on the
grounds that the material being sought is protected by section 50-a of the New York
State Civil Rights Law. Dkt. #27. In federal civil rights cases, issues of privilege are
governed by federal, not state law. It is undisputed that under federal law, New York

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Civil Rights Law section 50-a does not prohibit discovery of police personnel
documents. See Martin v. Lamb, 122 F.R.D. 143 (W.D.N.Y. 1988); Rashada v. City of
Buffalo, et al., No. 11CV873, 2013 WL 474751 (Feb. 6, 2013); Evans v. Murphy, et al.,
No. 12CV365, 2013 WL 2250709 (May 22, 2013). As Magistrate Judge Hugh B. Scott
has previously stated,
[t]hat does not mean that the state statute is to be given no
effect. According to the New York State Court of Appeals,
the legislative intent underlying the enactment of § 50–a was
enacted to prevent time consuming and perhaps vexatious
investigation into irrelevant collateral matters in the contest
of a civil or criminal action, and to avoid embarrassment and
harassment of testifying officers by cross-examination
concerning “unsubstantiated and irrelevant” matters in their
personnel files. See Matter of Capital Newspapers v. Burns,
67 N.Y.2d 562, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986).
Rashada, 2013 WL 474751, at *4.

Generally, the Courts in the Western District of New York will direct the
production of documents contained in the personnel file of an officer only if the
documents are relevant and involved disciplinary action taken against the officer. See
Rashada v. City of Buffalo, et al., 2013 WL 474751 (W.D.N.Y. 2013) (Scott, M.J.)
(directing disclosure of documents “relating to claims of excessive use of force,
improper arrest, improper detention, improper prosecution, or racial insensitivity
involving the defendants which have been substantiated upon the conclusion of an
internal administrative investigation or court proceeding”); Evans v. Murphy, et al., 2013
WL 2250709 (W.D.N.Y. 2013) (Scott, M.J.) (directing disclosure of documents relating
to any substantiated claims of excessive use of force for in camera review); Diaz v.
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Goord, 2007 WL 2815735 (W.D.N.Y.2007) (Payson, M.J.) (directing disclosure of
documents relating to disciplinary action imposed on the defendants in connection with
allegation of excessive force); Wright v. Goord, 2008 WL 2788287 (W.D.N.Y.2008)
(Payson, M.J.) (directing search of personnel files for documents relating to disciplinary
action taken against defendants based upon the use of excessive force).
It is unlikely that documents relating to unsubstantiated
claims of excessive force would lead to admissible evidence.
See Crenshaw v. Herbert, 409 Fed.Appx. 428 (2d. Cir.2011)
(the district court did not abuse its discretion by denying
plaintiff's motion to compel production of defendant's
personnel file; the court properly relied on defense counsel's
affirmation that the file contained no relevant disciplinary
records; even if evidence of a prior substantiated excessive
force investigation existed, on the facts of the particular case
before us such evidence would be inadmissible to show that
defendant acted violently in this instance). Crenshaw, 409
Fed.Appx. at 430 citing Fed.R.Evid. 404(b). See also DiRico
v. City of Quincy, 404 F.3d 464 (1st Cir.2005) (district court
in arrestee's § 1983 action against police officer for injuries
sustained in arrest did not plainly err in excluding evidence
of an earlier arrest by officer that resulted in a complaint of
use of excessive force; evidence had no special relevance
to any issue in action, evidence relating to a single,
unsubstantiated claim of use of excessive force had limited
probative value, and admission would have created danger
that jury would render verdict on improper basis that officer
was prone to engaging in violent behavior.).
Rashada, 2013 WL 474751, at *4 (emphasis in original).

This Court has undertaken a thorough review of the records submitted for
its in camera inspection on October 4, 2013. Based on its review of the records, this
Court has determined that after investigation, none of the complaints were upheld.
Therefore, because the records contained no evidence of a prior substantiated claim of

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excessive use of force, this Court finds that there is no need to order the disclosure of
any portion of the records reviewed. Accordingly, plaintiff’s motion to compel is denied.
The records submitted for in camera inspection will be maintained by this Court until
final disposition of this issue.

SO ORDERED.

DATED:

Buffalo, New York
October 9, 2013

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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