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Groark v. Timek

United States District Court, D. New Jersey

November 27, 2013


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For AC NIGHTLIFE, LLC, doing business as DUSK NIGHTCLUB, Defendant, Cross Defendant, Cross Claimant: SCOTT M. RUSS, LEAD ATTORNEY, Capehart & Scatchard, Mt. Laurel, NJ; CHRISTOPHER J. HOARE, CAPEHART & SCATCHARD PA, MT.LAUREL, NJ.



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JOEL SCHNEIDER, United States Magistrate Judge.

[Doc. No. 32]

Plaintiff Matthew Groark alleges Atlantic City Police Officers Frank Timek (" Timek" ) and Sterling Wheaten (" Wheaten" ) beat him up without provocation and then filed false criminal charges. Plaintiff learned in discovery that from May 2001 to the present, Timek and Wheaten have collectively been the subject of approximately 78 complaints similar to those asserted here - excessive force, assault, threats, improper search and arrest, and malicious prosecution.[1] Atlantic City's Police Department (" Atlantic City" ) did not sustain any of the complaints and Timek and Wheaten were never disciplined. Plaintiff's Motion to Compel Discovery asks the Court to Order Atlantic City to produce Timek and Wheaten's complete Internal Affairs (" IA" ) files so plaintiff can determine if Atlantic City's IA unit and investigations are a sham. Plaintiff argues that Atlantic City is deliberately indifferent to its police officers' misconduct and it condones the obvious consequences of its failure to properly train, supervise and discipline its officers. Plaintiff also argues he wants to get to the bottom of why it appears Timek and Wheaten repeatedly use excessive force with impunity. Plaintiff's motion has been fully briefed and argued. Plaintiff's motion is GRANTED.[2]


On August 7, 2010, plaintiff was a customer at the Dusk Nightclub in Caesar's Casino, Atlantic City, New Jersey, where defendant police officers Frank Timek and Sterling Wheaten were working security. Plaintiff alleges that " [w]ithout provocation" Timek and Wheaten threw him down the stairs and punched and " kneed" him repeatedly. Complaint ¶ ¶ 26, 27. The officers then arrested plaintiff and charged him with obstructing the administration of law or other governmental function, resisting arrest, and aggravated assault. The aggravated assault charge was later reduced to simple assault. Id. ¶ ¶ 37, 38. All charges were subsequently dismissed. Id. ¶ 39.

Plaintiff sued Timek, Wheaten and Atlantic City. Plaintiff alleges there was no probable cause to arrest him and that he was assaulted without cause or justification. Id. ¶ ¶ 42, 43. As to Atlantic City, plaintiff alleges it did not properly train its police officers and that its " customs, policies, practices, ordinances, regulations, and directives ... caused [his] false arrest ...." Id. ¶ ¶ 49, 52. Plaintiff also alleges that Atlantic City " has been deliberately indifferent to the violent propensities of its police officers, the individually named Defendant police officers in particular." Id. ¶ 53. Plaintiff's complaint includes Fourth Amendment claims for excessive force, false arrest and malicious prosecution. Counts IV and V of the complaint assert claims against Atlantic City for constitutional deprivations caused by " inadequate policies, procedures, and customs,"

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and " inadequate training and supervision." See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).[3]

During discovery plaintiff requested all IA files regarding Timek and Wheaten and the August 7, 2010 incident. Plaintiff believes these records may include witness statements, officer statements, investigation documents, and " written depositions." Although Atlantic City objected to plaintiff's request it produced the " Internal Affairs Index Cards" (hereinafter " Index Cards" ) for Timek and Wheaten. As to Timek, the Index Card lists 52 complaints from May 30, 2001 to March 20, 2012.[4] The complaints include, inter alia, allegations of " simple assault," " excessive force," " racial profiling," " racial slurs," " demeanor," " improper search," " false arrest," " threats and demeanor," and " improper arrest." As to the " disposition" of these charges, 49 of the 53 listed incidents are marked " exonerated," " unfounded," or " not sustained." [5] The Index Card for Wheaten lists 26 complaints from September 19, 2008 to April 26, 2012.[6] The complaints include allegations of " excessive force," " harassment," " improper search and demeanor," " simple assault and standard of conduct," " assault and neglect of duty," and " improper arrest." All 26 complaints, except for one marked " Administratively Closed," are marked " exonerated" or " not sustained."

Complaints made against Timek and Wheaten by senior police department personnel fared no better than citizen complaints. The charges made by Chief Snellbaker on October 5, 2004, Captain Wm. Burke on March 20, 2005, Captain Dooley on March 7, 2006, and Acting Chief Jubilee on October 11, 2006, were also not " sustained." The same is true for Chief Mooney's July 16, 2009 complaint against Wheaten of " simple assault and standard of conduct."

Plaintiff filed the instant motion after Atlantic City refused to produce the complete IA files for Timek and Wheaten rather than just their Index Cards. Plaintiff argues the requested IA files are relevant to Atlantic City's Monell liability and whether " there was a clear pattern of misconduct and constitutional violations by the Defendant Officers in the months and years leading up to physical assault of the Plaintiff." Motion at ¶ 16. Plaintiff also

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argues, " [s]uch a pattern would demonstrate that Atlantic City had a policy and custom of deliberate indifference to the persistent problem of police brutality and false arrests." Id. at ¶ 17.

Atlantic City makes several arguments in response to plaintiff's motion. First, it argues " [p]laintiff should not be entitled to confidential files involving completely separate and irrelevant incidents and individuals when he failed to make a complaint himself." May 16, 2013 Letter Brief (" LB" ) at 2. Second, plaintiff argues the requested documents should not be compelled because plaintiff " failed to satisfy the pleading requirement for his § 1983 claim." Id. Third, Atlantic City argues the requested documents are privileged and irrelevant.


The Court will first discuss two important topics to put the subject discovery issue in context. The first topic is the internal affairs process that all New Jersey municipalities must follow. The second topic is a general summary of Atlantic City's potential Monell liability.

1. The Internal Affairs Process

Pursuant to N.J.S.A. 40A:14-181, municipalities such as Atlantic City are required to adopt and implement internal affairs guidelines that must be consistent with the guidelines governing the " Internal Affairs Policy and Procedures" (hereinafter " IAPP" ) of the Police Management Manual promulgated by the Police Bureau of the Division of Criminal Justice of the Department of Law and Safety.[7] The purpose of the IAPP is to " assist the State's law enforcement agencies with the investigation and resolution of complaints of police misconduct that originate with private citizens or are generated by the supervisors, officers or employees of a law enforcement agency." IAPP at 3. The goal of Internal Affairs " is to insure that the integrity of the [police] department is maintained through a system of internal discipline where fairness and justice are assured by objective, impartial investigation and review." See November 1992 Internal Affairs Memorandum of Robert J. Del Tufo, Attorney General (" Del Tufo AG Memo." ) at 9, available at Three things must be done with regard to the internal affairs function. One, police departments " must implement an internal affairs policy that provides for a meaningful and objective investigation of citizen complaints of police misconduct." Id. Two, the behavior of police officers for misconduct must be monitored and tracked. Three, officer misconduct must be corrected. Id.

The purpose of the internal affairs unit is " to establish a mechanism for the receipt, investigation and resolution of complaints of officer misconduct." Id. at 13. Mandated internal affairs requirements include the following:

o Each agency must thoroughly and objectively investigate all allegations against its officers.
. . .
o Each agency must establish and maintain an internal affairs records system which, at a minimum, will consist of an internal affairs index system and a filing system for all documents and records. In addition, each agency shall establish a protocol for monitoring and tracking the conduct of all officers.
o Each agency must submit periodic reports to the county prosecutor summarizing the allegations received and the investigations concluded for that period. Each county prosecutor shall establish a schedule for the submission of the reports

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and specify the content of the reports.
o Each agency must periodically release reports to the public summarizing the allegations received and the investigations concluded for that period. These reports shall not contain the identities of officers or complainants. In addition, each agency shall periodically release a brief synopsis of all complaints where a fine or suspension of ten days or more was assessed to a member of the agency. The synopsis shall not contain the identities of the officers or complainants.

Id. at 4-5. These are " critical performance standards that must be implemented." Id. at 5.

The IAPP describes the records Atlantic City must keep and the protocols it must follow. Atlantic City must:

[M]aintain a comprehensive central file on all complaints received, whether investigated by internal affairs or assigned to the officer's supervisors for investigation and disposition. In addition, internal affairs should establish protocol for tracking all complaints received by the agency and the conduct of all officers. The protocol must include criteria for evaluating the number of complaints received by the agency and the number of complaints filed against individual officers.

Id. at 14. All citizen complaints must " be uniformly documented for future reference and tracking." Id. at 18. According to the IAPP a " thorough and impartial" investigation must be done for a proper disposition of a complaint. Id. at 27. The complainant and witnesses should be personally interviewed if circumstances permit and formal statements taken. Id. at 28. All relevant records should be obtained, reviewed and preserved. Id. At the conclusion of the IA investigation the investigator must prepare a written report that consists of an " objective investigation report which recounts all of the facts of the case and a summary of the case along with conclusions for each allegation and recommendations for further action." Id. at 45. The report must also " contain a complete account of the investigation." Id. In addition, " a detailed chronology [must] be maintained of each investigation so that critical actions and decisions are documented." Id. at 20.

For each allegation in an IA investigation the conclusion must be recorded as " exonerated" (the alleged incident did occur, but the actions of the officer were justified, legal and proper), " sustained" (the investigation disclosed sufficient evidence to prove the allegation and the actions of the officer violated a provision of the agency's rules and regulations or procedures), or " not sustained" (the investigation failed to disclose sufficient evidence to clearly prove or disprove the allegation). Id. at 21, 45. An IA investigation file is required for all IA reports and all IA complaints must be recorded in an index file. The file must include " the entire work product of the internal affairs investigation." Id. at 46. These record requirements give Atlantic City " the ability to track the complaint records of individual officers and identify those officers with a disproportionate number of complaints against them." Id. at 51. Procedures must be established " for dealing with problem employees." Id. at 51.

Atlantic City is required to prepare periodic reports, at least quarterly, for " the law enforcement executive that summarize[s] the nature and disposition of all misconduct complaints...." Id. at 48. Internal Affairs activity must also be reported to the county prosecutor. Id. An annual report that ...

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