Worthy v. City of Buffalo et al
Filing
42
DECISION AND ORDER granting 33 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr. on September 16, 2014. (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). After conducting an in camera review, this Court previously denied
plaintiff’s 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.” Dkt. #32. Presently pending
is plaintiff’s motion to compel the disclosure of the investigative file, Internal Affairs
Division file number 2010-270, as it relates to the investigation of the incident alleged in
the instant complaint. Dkt. #33.
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.
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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.
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 prior to and at defendants’
depositions, he requested the disclosure of the internal investigation file related to the
incident alleged in the complaint, including prior statements by all defendants and a use
of force form completed by defendant Krug. Dkt. #33. Specifically, plaintiff states, “[o]n
October 16, 2013, and again at the depositions, ACC Carmen Gentile refused to
produce the internal investigation file directly related to this incident stating that it was
potentially part of the files the Court already reviewed in camera (although he could not
say because he did not review those files) and refused to produce it because it was
confidential under New York State Civil Rights Law Section 50-a.” Id. at p.5. In their
response, defendants concede that the Internal Affairs Division file relating to this
incident was not previously disclosed, in part, because plaintiff’s previous request was
limited to those Internal Affairs Division files opened prior to August 29, 2010 (the date
of the incident). Dkt. #35. Notwithstanding the fact that any Internal Affairs Division file
relating to the August 29, 2010 incident would have to have been opened after August
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29, 2010 and was therefore not subject to this Court’s prior Decision and Order,
defendants maintain that the file is confidential and not subject to disclosure by reason
of New York Civil Rights Law §50-a. Id. Specifically, in their response to the instant
motion, defendants repeat the identical argument presented in response to the previous
motion, stating, “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. #35, p.3.
DISCUSSION AND ANALYSIS
As this Court found in its previous Decision and Order (Dkt. #32), in
federal civil rights cases, issues of privilege are governed by federal, not state law. It is
undisputed that under federal law, New York 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). This Court hereby incorporates by reference the complete discussion set forth in
its previous Decision and Order with respect to the applicable law governing the
disclosure of the contents of a personnel file of a defendant officer.
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
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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.
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).
Unlike the records this Court reviewed in camera as part of its previous
Decision and Order, the records at issue here are undeniably relevant to this action. 1
The records requested are the Internal Affairs Division file for the incident alleged in the
complaint bearing file number 2010-270. According to the defendants, “the ultimate
disposition for such file relating to the police officers’ conduct involved was ‘not
sustained’ i.e. not substantiated.” Dkt. #35, p.2. As set forth in its response to the
instant motion, the defendants have made the erroneous assumption that because in its
previous Decision and Order this Court concluded that disclosure of other Internal
Affairs Division files was not required because the determination in each instance was
1
The Court notes that the Internal Affairs Division file number 2010-270 relating to this
incident was not among those files previously submitted for this Court’s in camera
review.
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“not sustained” or “not substantiated,” that this Court would find that the Internal Affairs
Division file relative to this incident would likewise be not subject to disclosure. In sharp
contrast to the defendant’s presumption, the Internal Affairs Division investigative file as
it relates to this incident is relevant and should be disclosed to plaintiff. Questions as to
admissibility of Internal Affairs Division file number 2010-270, in whole or in part, at a
trial of this matter are left to the trial judge to whom this case is assigned. To the extent
that the defendants believe that contained within the subject Internal Affairs Division file
2010-270 is confidential information that should be redacted, the defendants are
directed to file a motion seeking in camera review and a protective order no later than
October 17, 2014. Otherwise, disclosure of the subject file shall be made to plaintiff no
later than, October 17, 2014. For the foregoing reasons, plaintiff’s motion to compel is
granted.
SO ORDERED.
DATED:
Buffalo, New York
September 16, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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