Reid v. Cumberland Cnty.

• Decision Date: 18 March 2013
• Docket Number: Civil No. 11–5841 NLH/AMD.
• Parties: Jerame C. REID, Plaintiff, v. CUMBERLAND COUNTY, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

34 F.Supp.3d 396

Jerame C. REID, Plaintiff
v.
CUMBERLAND COUNTY, et al., Defendants.

Civil No. 11–5841 NLH/AMD.

United States District Court, D. New Jersey.

Signed March 18, 2013.

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Ryan Marc Lockman, Mark Frost & Associates, Philadelphia, PA, for Plaintiff.

Michael E. Benson, Buonadonna & Benson, Vineland, NJ, for Cumberland County.

John Charles Hegarty, Jasinski, P.C., West Atlantic City, NJ, for Warden Robert Balicki.

Shanna McCann, Chance & McCann LLC, Woodstown, NJ, for Officer Zamont, Officer Ballard, Officer Bermudez.

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,

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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 privilege¹ and the deliberative

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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 harm² 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 said 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.)

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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.³ (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

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