United States District Court, D. New Jersey
JERAME C. REID, Plaintiff,
CUMBERLAND COUNTY, et al., Defendants
Decided March 18, 2013
[Copyrighted Material Omitted]
For JERAME C. REID, Plaintiff: RYAN MARC LOCKMAN, MARK FROST & ASSOCIATES, PHILADELPHIA, PA.
For CUMBERLAND COUNTY, Defendant, Cross Defendant: BRENDAN J. KAVANAGH, LEAD ATTORNEY, KAVANAGH & KAVANAGH, LLC, MILLVILLE, NJ; BRUCE K. WARREN, LEAD ATTORNEY, Kavanagh & Kavanagh, P.C., Woodbury, NJ; MICHAEL E. BENSON, LEAD ATTORNEY, BUONADONNA & BENSON, VINELAND, NJ.
For CUMBERLAND COUNTY DEPARTMENT OF CORRECTIONS, Defendant, Cross Claimant: SHANNA MCCANN, LEAD ATTORNEY, CHANCE & MCCANN LLC, WOODSTOWN, NJ.
For WARDEN ROBERT BALICKI, in his individual and official capacities, Defendant, Cross Defendant: JOHN CHARLES HEGARTY, LEAD ATTORNEY, JASINSKI, P.C., West Atlantic City, NJ.
For OFFICER ZAMONT, in his individual and official capacities, OFFICER BALLARD, in his individual and official capacities, OFFICER BERMUDEZ, in his individual and official capacities, Defendants, Cross Defendants: SHANNA MCCANN, LEAD ATTORNEY, CHANCE & MCCANN LLC, WOODSTOWN, NJ; THEODORE ELLIS BAKER, LEAD ATTORNEY, COUNTY OF CUMBERLAND, BRIDGETON, NJ.
[Doc. No. 46]
ORDER ON INFORMAL APPLICATION
ANN MARIE DONIO, UNITED STATES MAGISTRATE JUDGE.
This matter comes before the Court by way of letter application [Doc. No. 46] of Plaintiff, Jerame C. Reid (hereinafter, " Plaintiff" ), seeking to overrule privilege claims asserted by Defendant Cumberland County Department of Corrections (hereinafter, " CCDOC" ) and to compel discovery. (Pl.'s Ltr. Mem. to Overrule Privilege Claims and Compel Disc. [Doc. No. 46] (hereinafter, " Pl.'s Ltr. Mem." ).) The Court has considered the submissions of the parties and held oral argument on the matter. For the reasons set forth herein,
the Court grants in part Plaintiff's request and orders CCDOC to produce the information within the personnel files of the defendant officers as set forth infra, the Internal Affairs (" IA" ) files, complaints, and disciplinary reports within the Officer Defendants' personnel files as limited infra ; the IA files, interviews, and other records from the October 15, 2009 incident; and all complaints against all officers at CCDOC regarding excessive force from January 1, 2005 through October 31, 2009 and corresponding IA files, use of force reports from the same time period, and statistics about how many times force was used during that time period if such statistics exist.
This action involves claims under 42 U.S.C. § 1983 against Cumberland County Correctional Officers Zamont, Ballard, and Burmudez, Warden Robert Balicki, Cumberland County Department of Corrections, and Cumberland County. (Amended Compl. [Doc. No. 16].) Plaintiff alleges in his amended complaint that on October 15, 2009, while incarcerated at the Cumberland County Jail, " Officers Zamont and Burmudez entered Plaintiff's cell and, without legal justification, willfully, maliciously and intentionally punched and kicked the Plaintiff until he was curled up on the ground." (Id. ¶ ¶ 14, 20.) Plaintiff further alleges that mace was sprayed in his face. (Id. at ¶ 22.) Plaintiff alleges that Defendant Ballard " not only approved of the beating but also took the affirmative step of opening the cell door so that Defendants Burmudez and Zamont could attack Plaintiff." (Id. at ¶ 24.) As a result of the alleged excessive force, Plaintiff asserts that he was treated for injuries " including but not limited to broken ribs, a fracture of his left orbital bone, and loss of sensation and nerve damage in his lips and cheek area." (Id. at ¶ 31.) Plaintiff asserts claims against Defendants Ballard, Bermudez, and Zamont (hereinafter, " Officer Defendants" ) for violations of the Eighth Amendment, violations of 42 U.S.C. § 1985, assault and battery, common law conspiracy, and intentional infliction of emotional distress; against the Officer Defendants, Warden Balicki and Cumberland County for violations of 42 U.S.C. § 1983; and against the Officer Defendants, Warden Balicki, Cumberland County, and CCDOC for violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2 et seq. (Id. at ¶ ¶ 36-88.)
The discovery currently at issue consists of: (1) the personnel and IA files of the Officer Defendants; (2) the IA reports, interviews or other records from the October 15, 2009 incident; and (3) " [c]omplaints by inmates (or their family members) about corrections officers using excessive force on inmates between 01/01/05 and 10/31/09, and the corresponding IA files resulting from those complaints;  [u]se of force reports between 01/01/05 and 10/31/09; " and " [s]tastics about how many times force was used between 01/01/05 and 10/31/09." (Letter from Shanna McCann [Doc. No. 54] 1.) Defendant CCDOC asserts that the official information privilege  and the deliberative
process privilege preclude discovery of each of these three categories. CCDOC further asserts that it " clearly can demonstrate that confidentiality is vital to the decision making process in the instant case and in all internal affairs investigations." (CCDOC's Letter Br. [Doc. No. 47] 3.) Plaintiff disputes CCDOC's assertions of these privileges and asserts that Plaintiff's need for the requested discovery outweighs any justification for withholding the discovery at issue. (Pl.'s Letter Application [Doc. No. 46] 2.)
Defendant CCDOC asserts that the CCDOC has policies against disclosure of the requested materials and that the requested production " would undermine the integrity of entire CCDOC and render the administration of CCDOC's internal affairs investigations unworkable." (CCDOC's Letter Br. at 3.) In support of its assertions of privilege, CCDOC has provided an affidavit of Captain Michael Palau detailing the alleged harm  to CCDOC in the event the Court orders the production of the requested documents. (Second Affidavit of Captain Michael Palau [Doc. No. 47-1] (hereinafter, " Palau Affidavit" ).) CCDOC further asserts that the " deliberative process privilege must be applied to any and all conclusions and evaluative materials regarding this incident, and any past incidents, as they are evaluative, and disclosure of sad documents could result in making the deliberative processes and all future internal affairs investigations within the CCDOC ineffective." (CCDOC's Reply Letter Br., [Doc. No. 49] (hereinafter, " CCDOC's Reply Letter" ), 2.) CCDOC asserts that " CCDOC began making decisions not only about the facts of this incident but also about the type of investigation that would ensue" and that " [i]n a scenario like the one in this case, the CCDOC, for example, would have to begin a deliberative process to determine whether to undertake an administrative investigation or to refer it to the prosecutor for a criminal investigation." (Id. at 2.) CCDOC asserts that the written by-products of these evaluations must be kept confidential and that this confidentiality is critical to the " candor" and " honest[y]" of the internal investigation process. (Id. at 2.)
Plaintiff asserts that CCDOC has improperly asserted the deliberative process privilege and that Plaintiff's need for the requested documents outweighs any justification for withholding the documents. (Pl.'s Letter Application [Doc. No. 46] 2.)
Specifically, Plaintiff asserts that the deliberative process privilege does not apply to factual information such as interviews or statements and that CCDOC has " not provided any specifics as to why Defendants' personnel and IA files, as well as complaints and IA files related to past incidents of excessive force would fall under the deliberative process privilege." (Id. at 3.)
Plaintiff further asserts that CCDOC has articulated no basis other than confidentiality to support the privilege. (Id. at 5.) Plaintiff cites several cases in which courts have required the production of defendants' personnel files and prior IA files addressing complaints against defendants. (Id. at 4-5.) Plaintiff further asserts that the special investigation file pertaining to the October 15, 2009 incident must be produced in its entirety. (Id. at 6.) Plaintiff additionally asserts that even if the special investigation file contains confidential information, the presence of confidential information is not alone enough to prevent production of the file. (Id. at 6.) Based on an alleged lack of specific harm that would result from disclosure and the alleged vital nature of the requested information, Plaintiff asserts that the special investigation report should be produced. (Id. at 7.) Finally, Plaintiff asserts that the files and information regarding other complaints of excessive force must also be provided. (Id. at 7.) Plaintiff cites the Third Circuit case, Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) asserting that Beck holds such prior instances of excessive force to be highly relevant in cases asserting claims against a governmental agency.
Plaintiff further asserts in a supplemental letter that a confidentiality order would negate many of CCDOC's concerns as to the confidentiality of the documents in question. (Pl.'s Letter Response [Doc. No. 50] 1.) Plaintiff further asserts that CCDOC has consented to the production of the personnel files of two non-party officers, and that based on these disclosures the withholding of the Defendant Officers' personnel files " makes no sense." (Pl.'s Letter Response 2.)
As set forth by this Court in Hite v. Peters, No. 07-4492, 2009 WL 1748860, at *3 (D.N.J. June 19, 2009):
As a general matter, parties may " obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense [.] ..." Fed.R.Civ.P. 26(b)(1). The Court may also permit for " good cause" discovery of matters that are " relevant to the subject matter involved in the action." Id. " Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.; see also
Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990) (" [I]t is important to distinguish the right to obtain information by discovery from the right to use it at trial." ). Thus, relevancy is more liberally and broadly construed at the discovery stage than at trial. See Nestle, 135 F.R.D. at 104.
Here, Plaintiff asserts claims against the Officer Defendants for their individual involvement in the alleged assault and against Defendants Cumberland County, Warden Balicki, and CCDOC in their supervisory roles. As to the claims against the County and Warden Balicki, Plaintiff asserts that the County and Defendant Balicki " developed policies and/or customs which caused the deprivation of Plaintiff's constitutional and statutory rights." (Amended Compl. ¶ 54.)
Defendant CCDOC does not dispute the relevance of the IA files as to the October 15, 2009 incident and the Court finds that the IA files and any records addressing the October 15, 2009 incident are clearly relevant to the underlying excessive force claims against the Defendant Officers.
Defendant CCDOC, however, disputes the relevance of the Defendant Officers' personnel files and the IA files for prior incidents of excessive force of other officers. In addressing the relevancy of the Defendant Officers' personnel files and the IA files of other instances of excessive force from January 2005 to October 2009 of non-party officers, the Court notes that " [i]n order to prove municipal liability under § 1983, a plaintiff must prove that the alleged constitutional violation resulted from an official policy or an unofficial custom." Torres v. Kuzniasz, 936 F.Supp. 1201, 1206 (D.N.J. 1996)(citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
A government policy or custom can be established in two ways. Policy is made when a decisionmaker possessing final authority to establish a municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a custom when, though not authorized by law, such practices of state officials [are] so permanently and well-settled as to virtually constitute law.
McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009). Proving the existence of a custom " requires proof of knowledge and acquiescence by the decisionmaker." Id. " A custom of failing to investigate citizen complaints may provide a basis for municipal liability if 'a policy-maker (1) had notice that a constitutional violation was likely to occur, and (2) acted with deliberate indifference to the risk.'" Merman v. City of Camden, 824 F.Supp.2d 581, 589 (D.N.J. 2010)(quoting Brice v. City of York, 528 F.Supp.2d 504, 518 (M.D. Pa. 2007)). In Merman, the district judge relying on Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) held that the plaintiff's reliance on internal affairs reports demonstrating questionable investigations into prior instances of alleged police misconduct was sufficient to allow the plaintiff to survive a motion for summary judgment on the issue of municipal liability. Merman, 824 F.Supp.2d at 590-96. Likewise, in Beck the Third Circuit reversed a district court's decision on a motion for judgment as a matter of law and expressly found that prior written complaints regarding the use of excessive force by an individual officer " were sufficient for a reasonable jury to infer that the Chief of Police of Pittsburgh and his department knew, or should have known, of [the officer's] violent behavior in arresting citizens . . . ." Beck 89 F.3d at 973.
In establishing a claim of municipal liability in excessive force cases, a plaintiff must do more than " 'recit[e] a number of complaints or offenses.'" Merman, 824 F.Supp.2d at 591. Rather, a plaintiff " must show why those prior incidents deserved discipline and how the misconduct in those situations was similar to the present one." Id. Here, Plaintiff alleges that Cumberland County and Defendant Balicki failed to address past instances of excessive force and that such failure created a policy or custom that resulted in Plaintiff's injuries. (Amended Compl. ¶ ¶ 53-61.) In light of the nature of the claims against the County, the Court ...