Dobson, et al v. County of Livingston, et al
Filing
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DECISION AND ORDER directing defendants to produce records identified in the Conclusion of this Decision and Order. Signed by Hon. Michael J. Roemer on 12/3/2018. (RAZ) Personnel files addressed in this Decision and Order (p.10) will be returned to defense counsel via U.S. Mail by Chambers.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JEFFREY A. DOBSON, et al,
17-CV-1014-LJV-MJR
DECISION AND ORDER
Plaintiffs,
-vLIVINGSTON COUNTY SHERIFF
THOMAS J. DOUGHERTY, et al,
Defendants.
___________________________________
This case has been referred to the undersigned pursuant to Section 636(b)(1) of
Title 28 of the United States Code, by the Honorable Lawrence J. Vilardo, for all pretrial
matters.
Plaintiffs Jeffrey Dobson and Shannon Dobson allege that defendants
Livingston County Sheriff Thomas J. Dougherty (the “Sheriff”), County of Livingston (the
“County”), Brandan J. Flickner, and James Merrick violated Jeffrey Dobson’s Fourth and
Fourteenth Amendment rights in contravention of Section 1983 of Title 42 of the United
States Code (“Section 1983”). (Dkt. No. 10). Presently before the Court is a discovery
dispute. The Court resolves the dispute in the manner set forth below.
Relevant Facts and Background
Plaintiffs commenced this case by filing a summons with notice in New York State
Supreme Court, County of Erie, on September 22, 2017. (Dkt. No. 1). Defendants
removed the action to the Western District of New York on October 6, 2017 and filed an
answer to the summons with notice on October 23, 2017. (Dkt. Nos. 1 and 2). On January
9, 2018, the Court held a preliminary pretrial conference and issued a Case Management
Order, setting discovery dates and other deadlines. (Dkt. No. 9). Plaintiffs filed the
complaint that same day, and defendants filed an answer on January 23, 2018. (Dkt.
Nos. 10 and 13).
The complaint alleges that on September 21, 2016, at approximately 3:30 p.m.,
Livingston County Sheriff’s Deputy Brandan Flickner responded to a 911-complaint that
a black Silverado pick-up truck traveling northbound on Interstate 390 in Avon, New York
was driving “all over the highway.” 1 Jeffrey Dobson, the driver of the pick-up truck, was
exiting the Interstate 390 at East Avon Lima Road in Avon. Upon exiting, Dobson pulled
over and stopped. Flickner, who had been waiting for Dobson to exit, pulled up behind
the parked pick-up truck and activated his lights.
Flickner questioned Dobson and
Dobson indicated that he was not under the influence of drugs or alcohol. Dobson also
informed Flickner that he was a farmer and was fatigued from working 16-hour shifts, in
the field, on each of the previous three days. Flickner reviewed Dobson’s Department of
Motor Vehicles records and learned that Dobson had a prior alcohol related driving
violation. Flickner instructed Dobson to exit the car and then conducted a field sobriety
test. Flickner, a Certified Drub Recognition Expert, concluded that Dobson failed several
of the tests. Flickner also had Dobson blow into an alco-sensor, which produced a .000%
reading. Flickner arrested Dobson for operating a motor vehicle while impaired by drugs,
in violation of Section 1194(4) of the New York State Vehicle and Traffic Law. Flickner
also issued Dobson a ticket for affixing two stickers on the rear windshield of his vehicle,
in violation of Section 375 of the New York State Vehicle and Traffic Law.
Dobson was then taken to the Livingston County Sheriff’s Department. He was
given a breathalyzer test that was negative for the presence of alcohol. Livingston County
1
The facts set forth herein have been taken from the complaint, the parties’ submissions regarding the
discovery dispute, and representations made by counsel during appearances before the Court.
2
Sheriff’s Deputy James Merrick, also a Certified Drug Recognition Expert, conducted a
second evaluation. Merrick took Dobson’s pulse and blood pressure, interviewed him,
and administered additional field sobriety tests. Merrick concluded that Dobson was
under the influence of narcotics. Dobson was held at the Livingston County Sheriff’s
Department overnight until he could be arraigned the following morning. He also provided
a urine sample during the time he was detained. Toxicology reports from the sample later
indicated an absence of drugs in Dobson’s body on September 21, 2016. The criminal
charges filed against Dobson were ultimately dismissed.
Plaintiffs allege that the Special Traffic Options Program for Driving While
Intoxicated (“STOP-DWI”) is a policy and program promulgated by the County and the
Sheriff. Flickner, a road patrol officer, was working the STOP-DWI Shift at the time he
pulled Dobson over and arrested him. Plaintiffs contend that STOP-DWI and the salaries
of deputies working the STOP-DWI Shift are funded, in part, through fines paid by drivers
convicted of operating motor vehicles under the influence of drugs or alcohol. Plaintiffs
allege that deputies such as Flickner and Merrick have a strong motive to make stops
and arrests pursuant to STOP-DWI, since an increase in alcohol and drug related
convictions secured through STOP-DWI results in a decreased need for monetary
support from the County, the Sheriff and the tax-payers. Plaintiffs further contend that
STOP-DWI allows the Sheriff to share in the “financial and political benefits” of funding
law enforcement positions with fines as opposed to tax dollars. As a result, deputies are
commended by the Sheriff for convictions obtained through the program. The complaint
alleges that Dobson was arrested not based on probable cause but instead because of
his prior arrest for an alcohol related driving violation and because, at the time of the
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arrest, Flickner was working the STOP-DWI Shift. Plaintiffs’ claims include, inter alia: (1)
false arrest; (2) false imprisonment; (3) malicious prosecution; (4) abuse of process; and
(5) assault and battery. The complaint also alleges that STOP-DWI is an unconstitutional
policy or program, promulgated by the Sheriff and the County, whereby deputies are
encouraged or predisposed to arrest drivers without probable cause in order to obtain
monetary gain and other benefits.
On January 30, 2018, the Court received a letter from defense counsel indicating
that a discovery dispute had arisen between the parties. Specifically, plaintiffs request
the disclosure of the personnel files of Flickner and Merrick (the “Deputies”). Defendants
refuse to produce the Deputies’ personnel files on the grounds that the information
contained therein is irrelevant and not discoverable. Plaintiffs counter that any records
discussing the Deputies’ participation in STOP-DWI are relevant to their claims. Plaintiffs
also request records from an arrest of a different motorist by Flickner on December 15,
2016. Defendants argue that these records are not relevant because the arrest occurred
after Dobson’s arrest. Plaintiffs maintain that the arrest records are relevant because
they could show a pattern or practice by defendants of arresting motorists without
probable cause. The parties appeared before the Court on September 13, 2018 for oral
argument. 2
At the conclusion of oral argument, the Court instructed defendants to
produce the Deputies’ personnel files as well as records from the December 15, 2016
2 Defendants also objected to plaintiffs’ request to depose the toxicologist who rendered the report as to
the testing of the urine sample provided by Dobson on September 21, 2016. During oral argument, defense
counsel indicated that defendants did not intend to argue, or introduce evidence, that Dobson had drugs or
alcohol in his system on the day of his arrest. Further, defendants were likely to enter into a stipulation to
that effect. The Court concluded, based on defendants’ representations and plaintiff’s ability to retain their
own expert, that it would not require defendants to produce the toxicologist for a deposition by plaintiffs.
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arrest for the Court to review in camera. 3 Plaintiffs and defendants also filed briefs in
support of their respective positions. (Dkt. Nos. 22 and 24).
The Court has reviewed the Deputies’ personnel files, the records from the
December 15, 2016 arrest, and the parties’ written submissions. 4 The Court orders the
following with respect to discovery of these records and documents.
Personnel Files: Disciplines or Complaints
Issues of privilege in federal civil rights cases are governed by federal law. Martin
v. Lamb, 122 F.R.D. 143 (WDNY 1988). Thus, Section 50-a of the New York Civil Rights
Law does not prohibit the discovery of police personnel records in federal suits. Id. To
that end, courts in the Western District of New York typically direct production of
documents contained in an officer’s personnel file if the documents are relevant to the
constitutional claims and involved disciplinary action taken against the officer. Worthy v.
City of Buffalo, 11-CV-872, 2013 U.S. Dist. LEXIS 146242 (WDNY Oct. 9, 2013)
(Schroeder, M.J.) (“[B]ecause the [personnel] records contained no evidence of a prior,
substantiated claim of excessive force, [the] Court finds that there is no need to order the
disclosure of any portion of the records reviewed.”). See also Rashada v. City of Buffalo,
et al., 11-CV-873, 2013 U.S. Dist. LEXIS 16231 (WDNY Feb. 6, 2013) (Scott, M.J)
(directing disclosure of documents “relating to any 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
3
On September 27, 2018, defendants submitted to the Court, for in camera review, the personnel files of
Flickner and Merrick and the County of Livingston Police Department’s records of the December 15, 2016
arrest. On October 2, 2018, this Court issued an Order directing the Town of Geneseo Justice Court to
produce, to defense counsel, additional documents related to the December 15, 2016 arrest. (Dkt. No. 23).
The additional documents were provided to this Court, for in camera review, on November 7, 2018.
4 Copies of all of the documents and records reviewed, in camera, by the Court will be retained and filed
under seal in connection with this Decision and Order.
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administrative investigation or court proceeding”); Wright v. Goord, 04-CV-6003, 2008
U.S. Dist. LEXIS 54021 (WDNY 2008) (Payson, M.J.) (directing search of personnel files
for documents relating to disciplinary action or investigations taken against defendants
based upon use of excessive force).
While Courts in this District often limit discovery to substantiated complaints or
incidents that actually resulted in discipline of an officer, other districts in the Second
Circuit have ordered discovery of any complaints of similar conduct by a defendant,
whether substantiated or not. See e.g., Frails v. City of New York, 236 F.R.D. 116, 117
(EDNY 2006) (“Disciplinary records involving complaints of a similar nature, whether
substantiated or unsubstantiated, could lead to evidence that would be admissible at trial
and thus, are discoverable.”); Bradley v. City of New York, 04 Civ. 8411, 2005 U.S. Dist.
22419 (SDNY Oct. 3, 2005) (“we emphatically reject defendants’ contention that
‘unsubstantiated’ complaints should… not be produced.”). Further, there is a stronger
argument in favor of disclosure of unsubstantiated complaints in cases, like this one,
which involve a Section 1983 claim against a municipality, or Monell claim. In Phillips v.
City of New York, the Southern District of New York Court opined that the purpose of
permitting discovery concerning complaint and disciplinary history is that it “may lead to
evidence of a pattern, intent and absence of mistake, or support a plaintiff’s claim for
municipal liability under Monell.” 277 F.R.D. 82, 83 (EDNY 2011). Similarly, in Harper v.
Port Authority, the Southern District of New York Court ordered defendants to disclose
individual officers’ records concerning claims of false arrest, false imprisonment,
malicious prosecution, false testimony and other similar misconduct, including
unsubstantiated complaints and charges. 05 Civ. 5534, 2006 U.S. Dist. LEXIS 46949, *7
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(SDNY July 10, 2006). The Court reasoned that “because [plaintiff] asserts claims based
on Monell, the [defendant’s] knowledge of, and response to, defendants’ behavior and
complaint history is relevant.” Id.
Here, the Deputies’ personnel files do not contain any records of disciplinary
actions for excessive force, false arrest, malicious prosecution or any other conduct
similar to that alleged in this lawsuit. With respect to complaints against the Deputies,
Flickner’s file contains a page stating that “Personnel Complaint 14-10, is filed in the
Office of the Secretary to the Sheriff.” However, there is no further information about the
specific nature of this complaint. Likewise, there is no information as to whether the
complaint was substantiated or resulted in discipline against Flickner. Based upon the
case law discussed above, the details of this complaint, whether substantiated or not,
may be relevant and discoverable if the complaint involved allegations of false arrest,
malicious prosecution, abuse of process, assault and battery or other conduct similar to
that alleged here. Further, the complaint may be relevant and discoverable even if it is
later deemed inadmissible at trial. See King v. Conde, 121 F.R.D. 180, 194 (E.D.N.Y.
1988) ("Discovery is of broader scope than admissibility…and discovery may be had of
inadmissible matters."); Barrett v. City of New York, 237 F.R.D. 39, *41 (EDNY 2006)
(“Although unsubstantiated allegations may not be admissible at trial, they may lead to
witnesses who have [relevant] evidence.”). Thus, the Court concludes that if Personnel
Complaint 14-10 involves conduct similar in nature to the behavior alleged in this lawsuit,
and if additional information about this complaint is within the custody or control of
defendants, those records or documents are to be disclosed to plaintiffs. However,
defendants are not required to create documents or produce documents not in their
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possession. See Williams v. City of Hartford, 3:15-CV-00933, 2016 U.S. Dist. LEXIS
57709 (D. Conn. May 2, 2016) (“Rule 34 only requires a party to produce documents that
exist at the time of the request; a party cannot be compelled to create a document for its
production.”).
Personnel Records: Participation in STOP-DWI
Plaintiffs further argue that the personnel files are relevant and discoverable
because they may contain information about participation in STOP-DWI by Merrick and
Flickner. A Monell claim cannot be maintained against a municipality unless a plaintiff
establishes that the alleged deprivation of his federal constitutional rights resulted from a
“governmental custom, policy or usage of the municipality.” Jones v. Town of East Haven,
691 F.3d 72, 80 (2d Cir. 2012); citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978). Thus, municipal liability may only be found where the execution of a municipal or
governmental policy inflicts the injury. Monell, 436 U.S. at 691. To hold a municipality
liable under Section 1983 for the unconstitutional actions of employees, a plaintiff must
prove: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right. Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007). To that end, where lawsuits involve Monell claims, courts have ordered discovery
of documents and information that establish a municipality’s policies or customs as well
as individual defendants’ participation in or reliance on those policies or customs. For
example, in Gentile v. County of Suffolk, the Eastern District of New York Court
determined that portions of a government report finding police and prosecutorial
misconduct were relevant in a Section 1983 action because the report tended to
“establish the existence of a municipal policy or practice [and] also support[ed] plaintiffs’
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allegation that the police and the District Attorney’s Office were likely because of a course
of conduct to consistently ignore evidence on the part of the defendant officers and to
sanction and cover up any wrongdoing.” 129 F.R.D. 435, 445-446 (EDNY 1990). The
Gentile Court emphasized that “[t]he appropriate inquiry in this Monell-type claim focuses
on the actual or constructive knowledge of the municipality as well as upon the implied
knowledge and reliance of municipal employees on that practice.” Id. at 446.
Here, plaintiff is alleging that STOP-DWI was an official policy, promulgated by the
Sheriff and the County, that caused and encouraged deputies to arrest individuals without
probable cause. The Deputies’ personnel files contain information about the periods of
time Flickner and Merrick were assigned to the STOP-DWI Shift within the Road Patrol
Division, their general participation in STOP-DWI, and, in some cases, their performance
with respect to the goals of the program. This information is relevant to plaintiffs’ claims
in that it tends to show: (1) that STOP-DWI existed and the general goals of the program;
(2) that the Sheriff and the County valued the program; (3) that Flickner, a road patrol
officer, was working the STOP-DWI Shift at the time of Dobson’s arrest and had other
involvement in the program; and (4) that Merrick previously worked the STOP-DWI Shift
and continued to have some involvement with STOP-DWI. Indeed, this information is not
probative as to whether there was probable cause to arrest Dobson on September 21,
2016. However, the information does help to establish foundational facts necessary for
a Monell claim, such as the existence of a policy or program and the individual defendants’
knowledge of or reliance on the policy or program. For these reasons, the Court finds
that any information in the personnel files related to the Deputies’ participation in STOPDWI is to be disclosed to plaintiffs. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain
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discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case.”); Condit v. Dunne, 225 F.R.D. 100,
105 (SDNY 2004) (“Although not unlimited, relevance, for purposes of discovery, is an
extremely broad concept.”).
During its in camera review of the personnel files, the Court placed paper tabs on
the portions of the personnel files that contain information about the Deputies’
participation in STOP-DWI. The Court will return the files, to defense counsel, with the
paper tabs indicating the specific information that should be disclosed. It is noted that
most of the tabbed-information is contained within the Deputies’ yearly performance
reviews. The performance reviews contain other information that is not relevant to this
case and that should not be disclosed in order to protect the Deputies’ privacy. Thus,
prior to producing the information, defense counsel is instructed to redact the tabbeddocuments to disclose only the information pertaining to the Deputies’ involvement in
STOP-DWI.
The December 15, 2016 Arrest
Livingston County Police Department and Town of Geneseo Justice Court records
indicate that an individual was arrested by Flickner on December 15, 2016 and charged
with driving a motor vehicle while impaired by drugs. The individual also received citations
for stickers affixed to the rear windshield and a muffler/exhaust violation. Like Dobson,
the individual was taken to the Livingston County Sheriff’s Department after the arrest.
There, Merrick performed a drug evaluation and concurred that the individual was under
the influence of narcotics. A breathalyzer test was administrated and came back negative
for the presence of alcohol. A urine sample was also taken at the time of the arrest. A
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toxicology report later indicated that the urine sample was negative for the presence of
narcotics. Defendants maintain that records regarding the December 16, 2015 arrest of
this individual are not relevant because the incident post-dated Dobson’s arrest.
In Cooks v. Town of Southampton, a plaintiff asserted Section 1983 claims against
an officer and a town after discovering that following his arrest and sentence for
possession of controlled substances, the officer involved was investigated for misconduct
and may have been under the influence of prescription drugs at or around the time of the
arrest. 13-3460, 2015 U.S. Dist. LEXIS 42917 (EDNY Mar. 31, 2015). In rendering a
decision on a number of discovery demands, the Eastern District of New York Court
concluded that alleged improprieties or misconduct occurring after the arrest were not
probative of the municipality’s policies and practices at the time of the arrest and therefore
did not have to be disclosed. Id.
In contrast, other courts in the Second Circuit have held that incidents or
complaints occurring after the events at issue in a Section 1983 lawsuit may be relevant
and discoverable for reasons other than proving the existence of a municipal policy or
custom. In Barrett v. City of New York, a plaintiff filed a Section 1983 case alleging false
arrest, illegal strip search, malicious prosecution, and fabricated evidence. 237 F.R.D.
39 (EDNY 2006). Plaintiff sought discovery of unsubstantiated civilian complaints and
disciplinary records concerning the officers. Defendant opposed the request, in part,
because the complaints involved events that occurred after the events in the lawsuit or
more than ten years before.
The Eastern District of New York Court rejected this
argument and found that age did not make the complaints less relevant, since
“investigations older than ten years may still be relevant to the current action, for example,
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to establish a pattern or knowledge, and should not be barred from discovery based solely
on their age.” Id. Further, the Court held that investigations of civilian complaints that
post-date the current action “could still be relevant to the case and should be disclosed.”
Id. Indeed, while the complaints may not prove notice to a municipal defendant, “post
incident investigations regarding a police officer defendant in a section 1983 case may
be relevant to issues of pattern, intent and absence of mistake.” Id. See also Wisniewski
v. Claflin, CV 05-4956, 2007 U.S. Dist. LEXIS 27850 (EDNY 2007) (two complaints of
similar misconduct that post-dated the action at issue in the lawsuit were relevant and
discoverable as they could indicate pattern, intent, or absence of mistake); Ismail v.
Cohen, 899 F.2d 183 (2d Cir. 1990) (upholding the admission of evidence concerning
post-incident misconduct by a police officer defendant in a Section 1983 case where the
district court found, pursuant to Rule 404(b), that the misconduct was relevant to issues
of pattern, intent, and absence of mistake).
Here, the December 15, 2016 arrest of another motorist, which occurred three
months after Dobson’s arrest, would not tend to show a pattern or practice by the County
or the Sheriff at the time of the events in question. However, like the records in Barrett,
Wisniewski and Ismail, the records are potentially relevant as to the Deputies’ pattern,
intent, lack of mistake or motis operandi with regard to their arrest of Dobson. The Court
acknowledges that the documents at issue in Barrett, Wisniewski and Ismail pertained to
disciplines or complaints against the defendants while the records here do not involve
disciplines or complaints.
However, the instant records do pertain to a factually
analogous arrest involving the same officers where the arrestee was later determined not
to have narcotics in his system. Defendants contend that the prior arrest is irrelevant, in
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part, because subjective intent or motivation is not to be considered when examining
probable cause for an arrest. Notwithstanding, other similar conduct by the Deputies may
be admissible for reasons other than intent, such as to demonstrate a pattern by those
individuals, a lack of mistake, or a modus operandi. Moreover, the concept of discovery
is broad and extends to relevant material reasonably calculated to lead to the discovery
of admissible evidence. Finally, a determination as to whether any information about the
December 15, 2016 arrest is admissible is to be made at the time of trial and will depend,
in substantial part, on the specific purpose for which it is introduced in relation to the other
evidence offered and arguments made. For these reasons, the Court orders defendants
to disclose the Livingston County Police Department and Town of Geneseo Justice Court
records of the December 15, 2016 arrest. It is noted that the records involve the arrest
of a non-party. To protect their privacy, defense counsel is instructed to redact the
individual’s name and all other identifying information.
Conclusion
For the foregoing reasons, defendants are ordered to produce the following from
the personnel files of Brandan J. Flickner and James Merrick: (1) any information in
defendants’ possession as to Personnel Complaint 14-10, if the complaint involves
allegations of false arrest, malicious prosecution, abuse of process, assault and battery,
or other conduct similar to the allegations in this lawsuit; and (2) information about the
Deputies’ participation in STOP-DWI subject to the redactions discussed above. The
remainder of the information contained in the personnel files is irrelevant to this litigation
and need not be disclosed. Defendants are further ordered to produce records from the
Livingston County Police Department and Town of Geneseo Justice Court as to the arrest
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of another motorist on December 15, 2016, subject to the redactions described above.
On or before December 10, 2018, the parties are to confer and submit, to the Court, a
proposed amended Case Management Order containing deadlines for any remaining
discovery and a date for the filing of dispositive motions.
SO ORDERED.
Dated: December 3, 2018
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
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