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Rodney Dawson v. Ocean Township

March 14, 2011


The opinion of the court was delivered by: Arpert, U.S.M.J




This matter having come before the Court on a Motion by Plaintiff Rodney Dawson ("Plaintiff") to compel certain discovery including, among other things, personnel and internal affairs files [dkt. entry. no. 20] and, separately, on a Motion by Defendants Ocean Township ("Township"), Antonio Amodio, Jr. ("Amodio"), Patrolman Ryan Vaccaro ("Vaccaro"), and Sergeant Gregory Tongring ("Tongring") (collectively, "Defendants") to compel certain discovery from Plaintiff including, but not limited to, answers to interrogatories and responses to requests for productions [dkt. entry no. 21], both returnable February 22, 2011. Defendants filed opposition on February 7, 2011. Plaintiff filed opposition on February 14, 2011. Defendants filed a reply on February 17, 2011. For the reasons stated herein, Plaintiff's Motion is granted in part and denied in part and Defendants' Motion is granted in part and denied in part.


On or about August 5, 2008, Plaintiff "was driving...a large truck within the scope of his employment as an independent carrier and owner of RB Dawson Transport to deliver materials to Hillel Yeshiva, a school in Ocean Township". See Pl.'s Comp., dkt. entry no. 1 at 2. While the truck was being unloaded, Plaintiff "noticed a missed call on his cellular phone and retrieved messages from his voicemail", one of which was "from an Ocean Township police officer informing Plaintiff that [he] had some property of his", including a license plate and advised Plaintiff "to call the police station". Id. at 2-3. Plaintiff alleges that he "called the Ocean Township Police Department police officer" and was informed "his...truck...caused damage to a stop sign in the area and advised Plaintiff to wait for a patrol unit to be sent to his location". Id. at 3. While waiting for the police to arrive, Plaintiff "examined his vehicle", "found no damage", and noticed that "his license plate was still secured to his vehicle". Id. Upon calling the Ocean Township Police Department a second time, Plaintiff was " find a way to get to the police station". Id. Plaintiff alleges that he "retrieved his credentials from his truck", was "given a ride from a Yeshiva member", and was "met by Vaccaro" when he arrived at the Ocean Township police station. Id. Thereafter, Plaintiff alleges that Vaccaro told him "that he would take a look at [Plaintiff's] truck and inspect it for damage". Id. Plaintiff told Vaccaro "that his truck was at...Yeshiva being unloaded" whereupon Vaccaro "asked Plaintiff for his credentials". Id. Plaintiff then asked "if [Vaccaro] was going to inspect [his] truck for damage prior to issuing any summonses" and, in turn, Vaccaro "refused to inspect Plaintiff's truck" and "threatened to arrest Plaintiff" after asking for Plaintiff's credentials again. Id.

Plaintiff alleges that after asking "Vaccaro how the police had gotten his cell phone number", "where his alleged license plate was being kept", "why [Vaccaro] was going to arrest him", and requesting that "Vaccaro conduct an investigation into the incident", Vaccaro "pushed Plaintiff against a wall". Id. at 3-4. Subsequently, Plaintiff alleges, he "was...assaulted by Vaccaro, Tongring, and/or John Does 1-5". Id. at 4. Plaintiff maintains that his arms were yanked behind his back and that his shoulder was dislocated, "causing...excruciating pain". Id.

Plaintiff further alleges that he "was forced to sit on the floor of the police station for an extended period of time with tightly applied handcuffs and a dislocated shoulder without any medical assistance". Id. Plaintiff was charged with "Obstructing the Administration of Law, N.J.S.A. 2C:29-1a, Careless Driving, N.J.S.A. 39:4-97, Failure to Report a Motor Vehicle Collision, N.J.S.A. 39:4-129, and Leaving the Scene of a Motor Vehicle Accident, N.J.S.A. 39:4-130". Id. Plaintiff states that he "was acquitted of all motor vehicle violations" on January 6, 2009 and that he was "acquitted of Obstructing the Administration of Law" on May 15, 2009. Id.

Thereafter, Plaintiff filed a Complaint alleging violations of 42 U.S.C. § 1983 including "excessive force" (Id. at 4-5), "false arrest/imprisonment" (Id. at 5-6), "supervisory liability" (Id. at 6-7), "abuse of process" (Id. at 7-8), "malicious prosecution" (Id. at 8-9), "failure to intervene" (Id. at 9-10), "unlawful policy, custom, practice/inadequate training" with respect to "(1) unlawfully and maliciously assaulting, arresting and harassing citizens, (2) intentionally, recklessly and/or negligently misrepresenting the facts of arrests and/or other police-citizen encounters, (3) falsifying police and/or other official records, (4) withholding and/or mishandling evidence, (5) making false arrests, and/or (6) using unreasonable and excessive force" (Id. at 10-12), and, separately, state law violations including "abuse of process" (Id. at 14-15), "malicious prosecution" (Id. at 15-16), "assault and battery" (Id. at 16-17), "false arrest/imprisonment" (Id. at 17-18), and deprivation of substantive due process under N.J.S.A. 10:6-1, et seq. (Id. at 18-19).

Due to ongoing discovery disputes between the parties, the Court ordered that any motions to compel discovery be filed by January 10, 2011. [dkt. entry no. 19] Plaintiff's Motion is based on Plaintiff's contention that Defendants should be compelled to provide "internal affairs documentation...with respect to ...[Vaccaro and Tongring and for any other] officer employed by the Township of Ocean who may have had an internal affairs complaint filed against him" with respect to excessive force, false arrest, malicious prosecution, or demeanor complaints which indicate violent propensities and/or untruthfulness during the five (5) years preceding the alleged incident as well as "personnel files" of Vaccaro and Tongring. See Pl.'s Br. at 2-3; see also Pl.'s Proposed Form of Order, dkt. entry no. 20-3. Plaintiff also seeks an award of counsel fees and costs. See Pl.'s Proposed Form of Order, dkt. entry no. 20-3. Separately, Defendants' Motion is based on Defendants' contention that Plaintiff should be compelled to provide:

-fully responsive answers to Tongring's interrogatories 1-14, 18, 19, and 20; -fully responsive answers to Amodio's interrogatories 1, 2, and 3; -the Owner's Manual for the truck which Plaintiff operated on August 5, 2008; -any and all tax returns filed by Plaintiff individually for tax years 2004 through the present; -any and all tax returns filed by R.B. Dawson Transport, Inc. for tax years 2004 through the present; -all other documents which support Plaintiff's claim for lost wages; -documents supporting Plaintiff's claim for lost economic opportunity; and -photographs of Plaintiff's trailer and tractor taken on August 5, 2008 which were marked as D-4 in evidence at [Plaintiff's] Municipal Court trial.

See Def.'s Proposed Form of Order, dkt. entry no. 21-5. The Court notes that Defendants have withdrawn their request to compel production of the Owner's Manual for the truck and trailer which Plaintiff operated on the date of the alleged incident. See Def.'s Reply Br., dkt. entry no. 24 at 1. The Court also notes that fact discovery ended on December 31, 2010. [dkt. entry no. 16]

A. Plaintiff's Arguments in Support of his Motion to Compel

1. The discovery sought is basic to a claim brought under 42 U.S.C. § 1983.

Citing Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001), Simmons v. City of Philadelphia, 957 F.2d 1042 (3d Cir. 1991), Taylor v. Plousis, 101 F. Supp. 2d 255 (D.N.J. 2000), Vega v. Merlino, 2005 WL 1541061 (D.N.J. 2005), and Suarez v. Camden County Bd. of Chosen Freeholders, 972 F. Supp. 269 (D.N.J. 1997), Plaintiff states that a Complaint "brought under Title 42 U.S.C. § 1983 against individuals or governmental entities for a violation of a constitutional right...must allege the specific constitutional right alleged to be violated and that the deprivation was committed by those acting under color of law, as well as minimal facts which, if proven, would be sufficient to hold Defendants liable for the deprivation". See Pl.'s Br. at 3. Plaintiff maintains that his Complaint "meets these criteria" and notes that he "seeks to hold...Defendants directly responsible" for his injury. Id. at 3-4.

Citing City of Oklahoma v. Tuttle, 471 U.S. 808 (1985), Monell, A.M. v. Luzerne County Juvenile Detention Center, 372 F.3d 572 (3d Cir. 2004), Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003), Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990), Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), and Andrews v. Camden County, 95 F. Supp. 2d 271 (D.N.J. 2000), Plaintiff acknowledges that "liability may not be predicated upon respondeat superior but must be founded upon evidence that the [municipality] itself supported a violation of constitutional rights" and that he "must show that constitutional deprivation resulted from an official custom or policy, or from the direct actions of an official with authority to establish government policy". Id. at 4. Citing Natale, Bielevicz, Boston v. New Brunswick Police Department, 2005 WL 1661582 (D.N.J. 2005), Simmons, and Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997), Plaintiff maintains that "policy is shown where the official with decision-making authority actually establishes a policy" and that "custom can be shown by proving that an informal course of conduct or practice, although not specifically endorsed or authorized by law, is so well settled as to have the force of law". Id. Citing Beck, Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992), Natale, Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), Sample v. Diecks, S.R.O., 885 F.2d 1099 (3d Cir. 1989), Beers-Capitol, Brandon v. Holt, 469 U.S. 464 (1985), Bielevicz, Brown v. Monmouth County Sheriff's Dept. of Corrections & Medical Dept., 2005 WL 1116370 (D.N.J. 2005), Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982), City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), and Simmons, Plaintiff maintains that "the course of conduct giving rise to an unofficial custom can be proven in a myriad of ways, including the showing of a pattern of misconduct through prior incidents, ...proof of knowledge and acquiescence in unlawful conduct, ...tolerating, ignoring and avoiding taking remedial action with respect to a given course of conduct, ...failing to implement or enforce adequate policies and procedures, ...failing to properly investigate complaints or discipline employees guilty of misconduct, ...failure to accept and/or discourage complaints, ...the failure to keep and maintain proper records including the tracking of complaints of misconduct, ...failure to have adequate investigation procedures, ...[or] failure to adequately train". Id. at 4-5. Importantly, Plaintiff notes that "it must also be shown that the unlawful custom would most likely lead to a constitutional violation and that the [municipality] knew about it or that it was so obvious it can be inferred that they did". Id. at 5. Further, citing City of Oklahoma City, "Plaintiff...bears the...burden of proving that the unlawful policy or custom was a proximate cause of the injuries [such] that there is a substantial nexus between the unlawful conduct and the infringement of constitutional rights". Id.

Citing Estate of Bailey by Oare v. County of York, 768 F.2d 503 (3d Cir. 1985), Black, Beck, Brandon, Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir. 1993), Brice v. City of York, 528 F. Supp. 2d 504 (M.D. Pa. 2007), Hernandez v. Borough of Palisades Park Police Dept., 58 Fed. Appx. 909, 912 (3d Cir. 2003), Plaintiff contends that there is a wide range of the type of "proof available to establish a constitutional violation" in § 1983 cases, including, but not limited to, promulgation and implementation, or lack thereof, of deficient investigative and disciplinary procedures, complaints about particular individuals demonstrating a propensity to engage in improper conduct, shallow and meaningless review of such complaints, poor recordkeeping evidencing deliberate indifference, policies and procedures encouraging a code of silence or covering up officer misconduct, inadequate or improper training policies, or failure to investigate citizen complaints. Id. at 5-6. Citing Fletcher v. O'Donnell, 867 F.2d 791 (3d Cir. 1989) and Vega, Plaintiff notes that "a single isolated incident of misconduct does not generally permit a finding of constitutional deprivation unless it has been the result of specific action by the policymaker so egregious that an inference of a custom of tolerance can be made". Id. at 6-7. Thus, Plaintiff states that he "must identify a policy, practice, or custom that caused the constitutional violation and prove that policy, practice, or custom by obtaining access to appropriate discovery". Id. at 7.

Citing Farmer, Natale, Stoneking, Sample, Simmons, Beers-Capitol, Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980), cert. denied, 449 U.S. 1016 (1980), Tennessee v. Garner, 471 U.S. 1 (1985), City of Canton, Monell and A.M., Plaintiff maintains that he "must also demonstrate deliberate indifference" and notes that same may be established by way of showing a failure to properly train, supervise, and/or discipline. Id. at 7. Plaintiff argues that "personnel records of the individual defendants are extremely probative as to [the] training, supervision, and discipline of these defendants". Id. Plaintiff contends that there is a wide range of the type of proof available to demonstrate deliberate indifference including, but not limited to, "knowledge of a pattern of conduct or custom likely to lead to a constitutional deprivation and the failure to act upon that knowledge", "a policy, practice, or custom of failing to take action regarding complaints or by conduct shown to be condoned or acquiesced in", demonstration of "prior incidents with no remedial action", "acquiescence in a longstanding policy or custom of inaction", "failure to respond appropriately in the face of an awareness of a pattern of injury", "failure to implement [or] enforce existing policy [which creates] a situation likely to create a serious risk of harm", or "failure to train". Id. at 7-8.

Here, Plaintiff "points to the following potential policies and practices which would give rise to deliberate indifference in this case: failure to implement and execute appropriate...policies regarding use of force...", "failure to effectively investigate or discipline officers where complaints were made...", "failure to abide by and enforce existing polices", "failure to supervise", "failure to train", "failure to keep and maintain proper records", "failure to implement and maintain written policies and procedures for the investigation of complaints and discipline of employees", "failure to discipline", "failure to have a system in place [for] tracking and cross-tracking complaints", "failure to take affirmative action in the face of prior incidents, claims, [or] lawsuits". Id. at 8-9. Plaintiff argues that he "has come forward with sufficient facts based show a good faith basis for proceeding with [his] constitutional claims". Id. at 9. As such, Plaintiff argues that he "is entitled to discovery with respect to custom, practice, pattern and usage" and is, therefore, "not only entitled to documentation with respect to internal affairs investigations initiated against the individually named defendants..., but also as to other officers employed by the Township of Ocean". Id. Plaintiff notes that Defendants "have provided Internal Affairs Summary Report Forms for the years 2005-2009" and that "within these forms, internal affairs complaints are categorized into eight types: Excessive Force, Improper Arrest, Improper Entry, Improper Search, Differential Treatment, Demeanor, Other Rule Violation, and Other Criminal Violation". Id. Importantly, Plaintiff further notes that "the vast majority of complaints fall under the category of Demeanor or Other Rule Violation". Id. Plaintiff argues that "documentation with respect to Excessive Force and Improper Arrest complaints is obviously probative and should be produced". Id. Separately, Plaintiff argues that "without having the opportunity to review exactly what allegations were raised" under the Demeanor or Other Rule Violation categories of complaint, "Plaintiff has no idea as to whether these complaints involve false reporting, excessive force, malicious prosecution, mishandling of evidence, or mistreating detainees in custody" and "need not rely on the categorization placed on certain reports as determined by employees of Defendants". Id. Plaintiff argues that he "should be provided with information surrounding these complaints or be permitted to inspect the contents of these files in order to properly investigate his allegations with respect to policy, practice or custom and deliberate indifference". Id.

2. The discovery sought is relevant and calculated to lead to admissible evidence.

Citing FED. R. CIV. P. 26(b), Caver v. City of Trenton, 192 F.R.D. 154 (D.N.J. 2000), and Jones v. Derosa, 238 F.R.D. 157 (D.N.J. 2006), Plaintiff maintains that "discovery rules are to be construed liberally in favor of discovery of all relevant information, including all information reasonably calculated to lead to the discovery of admissible evidence". Id. at 10. Referencing Jones, Plaintiff argues that personnel files of individual defendant police officers and "information relating to [a municipality's] reports, investigations, and documents relating to policies, procedures and all other members of the police department" are both "within the permissible scope of discovery" when a "Section 1983 claim [is asserted] directly against [a] municipality as opposed to solely against...individual officers". Id. Citing Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988) and Frazier v. Southeastern Pennsylvania Transportation Auth., 785 F.2d 65 (3d Cir. 1986), Plaintiff contends that he "is not required to provide either proof of [his] claims or a proffer of all available evidence because in civil rights cases much of the evidence can be developed only through discovery of materials held by defendant officials". Id. at 10-11. Citing Farmer v. Brennan, 511 U.S. 825 (1994) and Fletcher, Plaintiff maintains that "summary judgment [has] been delayed pending completion of discovery" in § 1983 cases and district court findings of no deprivation have been reversed based upon "erroneous exclusion of evidence offered to show policy and custom in an excessive force case through prior incident". Id.

Plaintiff argues that Defendants "cannot hide behind claims of burden or irrelevance to avoid their obligations under the law". Id. at 11. Specifically, Plaintiff contends that "it is the governmental entity [that] must pay the price for inadequate filing, tracking, and maintaining records relating to complaints of misconduct, notices of claims and lawsuits" and that Defendants "very failure to do so is evidence of deliberate indifference". Id. Plaintiff further states that "the Township may be shown to have purposefully created a recordkeeping system which avoids the disclosure of misconduct and makes it extremely difficult and cumbersome to obtain". Id. Ultimately, Plaintiff argues that "the discovery requested is relevant, probative, likely to lead to admissible evidence, and must be produced". Id.

B. Defendants' Arguments in Opposition to Plaintiff's Motion to Compel

1. Discovery of the entire Ocean Township Police Department's internal affairs files is not relevant to the Plaintiff's Monell claim and is abusive and disproportionate.

Defendants note that "the core federal claims alleged against the individual defendants are (1) excessive force, (2) false arrest, (3) abuse of process, and (4) malicious prosecution" and that "no internal affairs complaints alleging false arrest, abuse of process, malicious prosecution, or any complaint that challenges the truthfulness of the individual police officer defendants exist". See Def.'s Opp'n Br. at 15. Defendants argue that "Plaintiff's Monell claim is only actionable insofar as the core constitutional causes of action are viable" such that "if there is no underlying core constitutional violation, there is no Monell claim". Id. Citing Bd. of the County Commissioners v. Brown, 117 S. Ct. 1382, 1388 (1997), City of Canton v. Harris, 489 U.S. 378, 385 (1989), and Brown v. Pa. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003), Defendants contend that in order to maintain his Monell claim, "Plaintiff must show that the Township of Ocean was (1) deliberately indifferent to a known risk as evidenced by an alleged failure to train, supervise or discipline Vaccaro and/or Tongring, and (2) that the deliberate indifference was the moving force behind the alleged violations of Plaintiff's civil rights on August 5, 2008". Id. Further, Defendants maintain that the Court's "first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link...between a municipal policy or custom and the alleged constitutional violation". Id.

Here, Defendants note that "the alleged constitutional violation[s] that [are] the subject of the discovery requests...[are] alleged excessive force, false arrest, and malicious prosecution/abuse of process" as "no other constitutional violation is alleged in the complaint and none is before the Court". Id. at 15-16. Defendants argue that "some other alleged case of excessive some other Ocean Township police some other time cannot form the basis for...Plaintiff's Monell claim" because "there is no logical connection between some unrelated alleged misconduct by another officer to some other citizen and the underlying conduct here that...can be shown to be the moving force behind the alleged excessive force on Plaintiff". Id. at 16. Defendants maintain that in order "to convince this Court that the internal affairs complaints against other Ocean Township police officers, [including] those occurring after the incident involving Plaintiff, are reasonably calculated to lead to admissible evidence as against the Township..., Plaintiff must demonstrate: (1) that the excessive force complaints against the other Ocean Township police officers were valid..., (2) that their alleged excessive force did not result in further training, discipline or supervision, (3) that the failure to train and supervise or discipline the other officers was known to Vaccaro, and (4) that the Police Department's failure to train or discipline the other officers...was the moving force behind Vaccaro's alleged violation of Plaintiff's civil rights...". Id. Defendants argue that "there is simply no [such] logical connection". Id.

2. The frequency of excessive force complaints in Ocean Township do not show a pattern of misconduct.

Defendants argue that, "taken to its logical and untenable extension, Plaintiff's avowed need to see the internal affairs files for the entire 60 plus member Ocean Township Police Department, over the course of 5 years, regardless of the nature of the internal complaint...would establish a precedent to extract internal affairs files from towns and cities...without any limitation". Id. at 17. Defendants contend that "this would result in a wholesale intrusion into confidentiality both for the officers and the public...[and] a great burden would be placed on municipalities to cull and sift through potentially hundreds of files and documents in order to satisfy plaintiffs even in cases where...the internal affairs records...[have] nothing to do with the individual police officer defendants in the complaint". Id.

Defendants note that "in this case, there were a total of eight internal affairs excessive force complaints made...against a 60-62 member department over five years" resulting in a frequency of "1.6 complaints per year...against the entire Ocean Township Police Department". Id. Citing Artiles v. Vitanza, 2009 U.S. Dist. LEXIS 68820, at *98 (D.N.J. 2009), Mariani v. City of Pittsburgh, 624 F. Supp. 506, 511 (W.D. Pa. 1986), and Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir. 1985), Defendants argue that "this de minimis number of complaints hardly establishes a pattern of misconduct, even assuming that any of the complaints were valid", and "does not show that the officers who were [the] subject of the complaints deserved discipline...[or] how the alleged misconduct in those cases was the moving force behind the present action". Id. at 17-18. Citing Professional Recovery Services v. General Electric Capital Corp., 2009 U.S. Dist. LEXIS 3889, at *11 (D.N.J. 2009), Defendants contend that "two unfounded excessive force complaints against Vaccaro in 2006 represents a complaint in .38%...of the citizen encounters he had that year" and that "requiring production of these materials would be neither relevant nor proportional" given that Plaintiff "has provided no standard to show that this frequency is disproportional". Id.

Defendants maintain that "Plaintiff should not be heard to argue that the burden of this case is minimal since there have only been eight excessive force complaints filed in the five years requested" because in so doing, "Plaintiff will undercut his own theory as to why the discovery is justified (i.e. that the instances of unchecked excessive force in the Ocean Township Police Department were so widespread and systemic that they were the rule of law or that they established a custom of assaulting arrestees which was known to the Township)". Id. Defendants note that they "offered to produce...the Ocean Township Police Department internal affairs files for excessive force of Vaccaro and the incident reports regarding the Monmouth County Prosecutor's Office's investigation" and that "Plaintiff rejected this offer" without making any "attempt to argue how a file pertaining to a complaint brought against another reasonably calculated to lead to admissible evidence against Vaccaro and Tongring". Id. at 18-19. Defendants argue that Plaintiff's reliance on Jones v. Derosa, 238 F.R.D. 157, 163 (D.N.J. 2006) is misplaced, as that case "involved a subpoena served on the Township of Clinton and the individual police officers more than a year after the claims for municipal liability had been dismissed" and the court found that "plaintiff [had] failed to show good cause as to why the information regarding officers other than...[the individually named defendants] are relevant". Id. at 19. Importantly, Defendants contend that "based on...[the] particular language of the [Jones] opinion, it is unclear whether Plaintiff sought internal affairs and personnel files for the entire department...[or simply] training or other documents" and that "any commentary made...not pertinent to the issues actually decided is dicta". Id. at 19-20. Citing FED. R. CIV. P. 26(b)(1) and Robbins v. City of Camden, 105 F.R.D. 49, at *54 (1985), Defendants argue that Plaintiff "makes no argument to demonstrate why the files against non-party police officers are relevant to the claims in this case" and that the "Court should not sanction..over-discovery and discovery abuses". Id. at 20.

3. Information that is deemed private and confidential is also entitled to protection from disclosure.

Citing Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000), OMS Investments, Inc. v. Lebanon Seaboard, 2008 U.S. Dist. LEXIS 94165, at *4 (D.N.J. 2008), Bayer v. Township of Union, 414 N.J. Super. 238, 273 (App. Div. 2010), and State v. Kaszubinski, 177 N.J. Super. 136, 138 (Law Div. 1980), Defendants note that "the Third Circuit recognizes that trial courts may limit intrusions into information that would compromise legitimate interests such as privacy and...confidentiality", that "New Jersey law recognizes that maintaining the confidentiality of police personnel records is a matter of significant public interest", and that the "New Jersey Department of Law and Public Safety ("NJDOLPS") has...determined that police internal affairs files are confidential and that their disclosure is permitted on an extremely limited basis". Id. at 20. Citing FED. R. CIV. P. 26(c), Defendants maintain that "the court has discretion to issue protective orders that impose limitations on the extent and matter of discovery" with "respect to maintaining the confidentiality of police personnel records". Id. at 20-21.

Defendants argue that "the Ocean Township Police Department is required to adhere to the confidentiality provisions of the Internal Affairs policy promulgated by the NJDOLPS...[and] recognizes...a significant public interest in the confidentiality of internal affairs files and in police officer personnel files". Id. at 21. Citing the Certification of Captain Neil Ingenito, Defendants maintain that "the confidentiality of these records pertains to the nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials" such that "the complainants, witnesses and the subject officers have a substantial interest in the confidentiality of these records as well". Id. Defendants argue that "disclosure of these records would have a chilling effect on complainants and witnesses" because "complainants who have been arrested and perhaps convicted of offenses reluctant to air their cases again in order to provide discovery to plaintiffs" and "few witnesses will come forward if they know that they will be embroiled in a lawsuit years after their matter has been resolved". Id. Further, "individual officers not involved with this case, but who may have had an internal affairs complaint made against them, have an interest in the confidentiality of their own records" as "disclosure would subject an officer to renewed scrutiny in a matter which has already been resolved". Id.

Citing Bayer v. Township of Union, 414 N.J. Super. 238, 273 (App. Div. 2010), Defendants note that "there was an in camera review of the internal affairs complaints against the defendant officers" wherein "the Appellate Division upheld the trial court's determination that nothing in the internal affairs files was relevant to the plaintiff's section 1983 claim...and endorsed the findings...that demeanor complaints which accused the officer of not being polite or comforting had nothing to do with violating a citizen's civil rights during an arrest". Id. at 21-22. In this case, Defendants argue that "Ocean Township internal affairs files are categorized in the same fashion as in Bayer" as "demeanor complaints relate to a citizen's perception of an officer's politeness...and no internal affairs complaint that concerns an alleged violation of a citizen's civil rights is considered a demeanor complaint". Id. at 22.

4. Discovery of personnel files is not relevant to Plaintiff's claim.

Initially, Defendants note that "the personnel files sought by Plaintiff were not referenced in Plaintiff's September 23, 2010 letter...nor were personnel files referenced in his October 20, 2010 deficiency letter". Id. Defendants maintain that "for this reason alone, the request to order production of personnel files should be denied" because "Plaintiff made no good faith effort to confer and resolve this issue prior to filing this motion". Id.

Separately, citing Professional Recovery Services v. General Electric Capital Corp., 2009 U.S. Dist. LEXIS 3889, at *11 (D.N.J. 2009), Defendants note that "personnel files may contain information that is both private and irrelevant to [this] case and special care must be taken before...[they] are turned over to an adverse party". Id. Defendants maintain that "Ocean Township Police personnel files contain no information that is discoverable in this case" such as "information relating to internal affairs complaints or investigation" which are housed "in the internal affairs unit and marked as CONFIDENTIAL". Id. at 22-23. Instead, personnel files "contain mundane information regarding the officer's benefits, work habits, and family". Id. Defendants argue that "Plaintiff has not advanced [any] argument as to why the personnel files would contain relevant information...particularly...[in light of] Defendants' discovery responses indicat[ing] that there have been no lawsuits against the officers, there are no Title 59 notices of claim, and there have been no administrative actions, no discipline, and no criminal charges filed against them". Id. at 23. Defendants argue that the case cited by Plaintiff for the proposition that a police department may be required to produce officer personnel files, Denis v. City of Newark, 30 N.J. Super. 304 (App. Div. 1998), "did not involve a Monell...[or] section 1983 claim" and "the Appellate Division held only that the production of the officer's employment file was appropriate because the plaintiff asserted a claim for negligent retention on the part of the [municipality]". Id. Defendants note that there is "no claim for negligent retention pleaded" in this case". Id.

C. Defendants' Arguments in Support of their Motion to Compel

1. The answers to interrogatories sought by Defendants are relevant and should be provided.

Defendants maintain that "the discovery sought in this [Cross-Motion] is intended to flesh out the various allegations asserted in the complaint" and no argument claiming that same is irrelevant has been asserted by Plaintiff "in any of his discovery responses or at the meet and confer session on December 23, 2010". See Def.'s Br. at 1-2. Specifically, Defendants contend that "the interrogatory questions that remain unanswered go to the allegations in paragraphs 61 and 62 of the complaint, where it is alleged (in ¶ 61) that the Township of Ocean has an official policy, custom or practice of intentionally or recklessly, with deliberate indifference, failing to train, supervise, control and discipline Vaccaro and Tongring from maliciously assaulting, arresting and harassing citizens, intentionally...misrepresenting facts of arrests and of police-citizen encounters, falsifying police and other official records, withholding or mishandling evidence, making false arrests and using excessive force". Id. at 2. Separately, "paragraph 62 repeats these allegations, but alleges that there have been numerous citizen encounters involving Vaccaro and Tongring where they have frequently and customarily subjected citizens to physical and mental abuse, maliciously assaulted and arrested and harassed citizens, and intentionally misrepresented the facts of arrests, falsified police reports and other official records, made false arrests, mishandled evidence and withheld evidence and used excessive force". Id.

Defendants argue that "these allegations have no basis in fact", that "there was not a good faith basis to have made them", and that "the discovery responses that...Plaintiff has proffered thus far are an obvious attempt to avoid answering the interrogatories directly...because there is no evidence to support these claims". Id. Citing FED. R. CIV. P. 11, Defendants argue that "these allegations should be withdrawn" and that "Plaintiff will voluntarily do so assuming...there is no evidence support ¶¶ 61-62 of the complaint". Id. at 2-3. Specifically, Defendants seek fully responsive answers to interrogatories 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, and 20 served by Tongring and fully responsive answers to interrogatories 1, 2, and 3 served by Amodio. See Def.'s Proposed Form of Order, dkt. entry no. 21-5.

2. The documents requested by Defendants are relevant and should be produced.

Defendants maintain that "the documents requested [in September 2010] are acknowledged to be relevant by Plaintiff and to be in Plaintiff's possession, custody or control". Id. at 3. Defendants note that "Plaintiff's constant refrain is that he will produce [the requested documents] when he is able to", pointing out that Plaintiff "claims his tax returns and the tax returns of his company (R.B. Dawson Transport, Inc.) are with his accountant". Id. Defendants ask "why Plaintiff cannot simply contact his accountant and request copies of the returns". Id.

Separately, Defendants "expected that Plaintiff would have been eager to produce any and all other documents that support his claim for lost wages and lost economic opportunity since these documents would potentially increase the value of his case". Id. Defendants maintain that it is "hard to understand" why they "received an objection that the request for these documents was vague" and argue that "the supporting documents should be produced". Id. Specifically, Defendants seek (1) the Owner's Manual for the truck which Plaintiff operated on August 5, 2008, (2) any and all tax returns filed by Plaintiff individually for tax years 2004 through the present, (3) any and all tax returns filed by R.B. Dawson Transport, Inc. for tax years 2004 through the present, (4) all other documents which support Plaintiff's claim for lost wages, (5) documents supporting Plaintiff's claim for lost economic opportunity, and (6) photographs of Plaintiff's trailer and tractor taken on August 5, 2008 which were marked as D-4 in evidence at his Municipal Court trial. See Def.'s Proposed Form of Order, dkt. entry no. 21-5.

D. Plaintiff's Arguments in Opposition to Defendants' ...

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