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D'Orazio v. Washington Township

September 16, 2008

ERNEST M. D'ORAZIO, III, PLAINTIFF,
v.
WASHINGTON TOWNSHIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joel Schneider, United States Magistrate Judge

[Doc. No. 13]

OPINION AND ORDER

The primary issue before the Court is whether defendants should disclose the identities of two (2) confidential informants who allegedly possess information critical to plaintiff's case.*fn1 Defendants resist the discovery. After receiving defendants' Motion for Protective Order [Doc. No. 13] and plaintiff's opposition [Doc. No. 14], and holding oral argument, the Court GRANTS in part and DENIES in part defendants' motion.

Fact Background

In or about December 2005 or January 2006 plaintiff started working as a Special Law Enforcement or Class II Officer for the Washington Township Police Department ("WTPD"). This was a temporary appointment that expired on December 31, 2006.

Defendants claim that in December 2006 they obtained "intelligence" that plaintiff disclosed confidential police information to two individuals about an undercover drug investigation. Defendants further claim the disclosure compromised their investigation and put the safety of their officers at risk.

On January 23, 2007, Police Chief Muniz issued a "Preliminary Notice of Disciplinary Action" ("Notice") directed to plaintiff. The Notice issued eight (8) charges against plaintiff for violating the WTPD's Rules and Regulations and recommended that plaintiff be dismissed with no possibility of reappointment. Plaintiff appealed the charges and thereafter the parties participated in a multi-day hearing before the Honorable Donald A. Smith, Jr., J.S.C. (retired). On October 16, 2007, Judge Smith issued his finding and recommendation that none of the charges leveled against plaintiff should be sustained. See Exhibit E to defendants' Brief ("Db"). Washington Township has not yet formally adopted or rejected Judge Smith's recommendation.

Plaintiff filed this lawsuit on October 23, 2007. Plaintiff denies he disclosed confidential police information to anyone. Plaintiff also claims he was qualified to be a full-time police officer and he should have been appointed to the position. Plaintiff alleges the reason he was not appointed was because of his "political affiliation." See Complaint [Doc. No. 1] at ¶¶27-30,34. In addition, plaintiff claims that Detective Jason Player ("Player") falsified his police reports, provided false information in a police investigation, testified falsely under oath and violated police policy and procedure. Id. at ¶81. Plaintiff named as defendants Washington Township, Player, Detective Rolando, Richard Sumek (Detective Sergeant in the Narcotics Unit), Rafael Muniz (Chief of Police), Dennis Sims (Corporal) and Paul Moriarity (Mayor). Plaintiff claims defendants violated his first and fourth amendment rights and engaged in a civil conspiracy to deprive him of his constitutional rights.

Defendants claim that in July 2006, Player received information from Confidential Informant ("CI") 1 that Michael Dove ("Dove") was selling drugs at a local restaurant and bar (P.J. Whelihans). See Exhibit I. Player thereafter was put in charge of the Dove investigation. At the moment it is not known what steps, if any, the WTPD or Player took between July and November 2006 to investigate Dove. A key event in the case occurred on December 11, 2006.*fn2 On that date Player and CI2 participated in an "overhear" with Dove.*fn3 Player's December 11, 2006 report of the call states:

I overheard Dove related that he was contacted by Special Officer II Ernie D'Orazio after D'Orazio read the subjects names that were arrested. Dove stated that D'Orazio told him that he "better watch out" because of what happened at PJ's and who was arrested. D'Orazio also stated that the suspects arrested "would probably end up with community service for cooperating." Dove also stated that he was "gonna lay low" for awhile, but would reach out for the CI at a later date and time.

See Exhibit G. This conversation was not recorded. After Player's report was prepared Detective Rolando was assigned to supervise the investigation of the plaintiff. On December 18, 2006, Player and CI2 participated in another important phone call. Player's written report of the recorded call includes the following statement:

The CI[2] is heard mentioning Special Officer D'Orazio's name on numerous occasions and Dove explains how Special Officer D'Orazio told him about the arrests at P.J. Whelihans.

See Exhibit H. According to Player, on December 20, 2006, he received a call from CI3 who told Player he was concerned for his safety because he was getting calls to the effect that drug dealers knew he was cooperating with the police. See Exhibit K. Player received a similar call from CI3 on February 15, 2007. See Exhibit L.

During the course of discovery plaintiff asked defendants to reveal the identities of CI1 and CI2. Plaintiff undoubtedly wants the information so he can either interview or depose the CIs about issues relevant to the case. Further, in order to assure he received all relevant documents, plaintiff asked Player to produce a copy of the file directory on his computer. In addition, plaintiff asked defendants to produce the audiotape of the December 18, 2006 phone conversation. Defendants resisted ...


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