Williams v. City of Birmingham

• Decision Date: 04 April 2018
• Docket Number: Case No.: 2:16–cv–0650–JEO
• Citation: 323 F.Supp.3d 1324
• Parties: Aubrey WILLIAMS, Plaintiff, v. CITY OF BIRMINGHAM, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

323 F.Supp.3d 1324

Aubrey WILLIAMS, Plaintiff,

v.CITY OF BIRMINGHAM, et al., Defendants.

Case No.: 2:16–cv–0650–JEO

United States District Court, N.D. Alabama, Southern Division.

Signed April 4, 2018

Alan B. Lasseter, Lasseter Law Firm, David H. Marsh, Richard J. Riley, William R Andrews Marsh, Rickard & Bryan P.C., Birmingham, AL, for Plaintiff.

Michael K.K. Choy, Eddie T. Ramey, Jennifer M. Busby, Kermit L. Kendrick, Burr & Forman, LLP, Birmingham, AL, for Defendants.

ORDER

John E. Ott, Chief United States Magistrate Judge

In this civil rights action brought pursuant to 42 U.S.C. §§ 1983 and 1985, Plaintiff Aubrey Williams ("Plaintiff") claims that his constitutional rights were violated when he was shot without justification by a police officer employed by the City of Birmingham (the "City") and when he was thereafter falsely arrested and maliciously prosecuted for the attempted murder of the officer. (Doc.¹ 50, Amended Complaint).

The defendants include the officer who shot Plaintiff, Daniel Aguirre; Aguirre's partner, Richard Haluska; the City itself; its Chief of Police, A.C. Roper; and numerous other City police officers and officials (collectively "Defendants"). The cause now comes to be heard on three pending motions: (1) Defendants' objections to Plaintiff's notice of intent to serve subpoenas and motion to quash such subpoenas, if issued (Doc. 58); (2) Plaintiff's motion to modify the Rule 16(b) scheduling order by extending discovery and other deadlines by 120 days (Doc. 60); and (3) Plaintiff's motion for an extension of time to file rebuttal experts by at least 60 days. (Doc. 66). Upon consideration, the court concludes that Defendants' objections to the subpoenas are meritorious in part and that the scope of the subpoenas' requests is due to be modified. The court will deny Plaintiff's motion to extend all discovery generally by 120 days. However, the court will order that discovery be reopened for a total of 75 days for the limited purpose of allowing rebuttal expert discovery into alleged alterations or enhancements of video recordings that Defendants have proposed to offer at trial or to use as a basis for opinions by their experts.

I.

Rule 45 of the Federal Rules of Civil Procedure authorizes a court to issue a subpoena at the request of a party to require a non-party to produce for inspection and copying designated documents, electronically stored information, or tangible things in the possession, custody, or control of the non-party. The scope of permissible discovery with respect to a Rule 45 subpoena is that which is set forth in Fed. R. Civ. P. 26(b)(1), which provides that "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case...." See Greater Birmingham Ministries v. Merrill , 2017 WL 2903197, at *2 (N.D. Ala. July 7, 2017). On timely motion, the court has the authority under Rule 45 to quash or modify a subpoena "that requires disclosure of privileged or other protected matter, if no exception or waiver applies. Rule 45(d)(3)(A)(iii), Fed. R. Civ. P. Further, under Rule 26(c), a party may move for a protective order that forbids inquiry or that limits the scope of discovery as to certain matters. Rule 26(c)(1)(D), Fed. R. Civ. P.

On September 21, 2017, Plaintiff served a notice of his intent to serve respective Rule 45 subpoenas on two non-party Fraternal Order of Police ("FOP") organizations: the Alabama State FOP and the Birmingham FOP Lodge 1.² (See Docs. 58, 58–1, 58–2). Each subpoena instructs its recipient to produce the same things, to wit:

1. Produce copies of all documents relating to each incidence wherein an FOP attorney and/or representative has appeared at a crime scene, Internal Affairs interview, personnel hearing, disciplinary hearing for any City of Birmingham police officer during the ten year period prior to April 24, 2014 [the date Williams was shot].

2. Produce documents reflecting the name, referral, and assignment of any attorney retained by the FOP on behalf of Officers Aguirre and/or Haluska relating to the police shooting of Aubrey Williams on April 24, 2014.

3. Produce any and all surveys, audits, data, and/or reports in your possession relating to the following:

a. incidents wherein any Birmingham Police Officer arrested any suspect on misdemeanor or felony charges wherein the police officer claimed to be the victim of the crime charged (i.e., assault, menacing, resisting arrest, attempted murder, etc.); and

b. incidents wherein Birmingham police officers were alleged to have falsely arrested, charged, or documented actions by suspects during the ten year period prior to April 24, 2014.

(See Docs. 58–1, 58–2). Defendants have objected to the issuance of both subpoenas and have moved to quash them, if issued, on several grounds. (Doc. 58). Plaintiff has filed an opposition (Doc. 64), to which Defendants have replied. (Doc. 65). The parties' arguments on the motion are addressed below.

A.

Defendants first argue that the subpoenas' requests for FOP documentation on prior incidents involving the City's police officers are "overly broad in time and scope" (Doc. 65 at 3). Defendants do not dispute that, as a general proposition, knowledge attributable to the City with respect to similar incidents of misconduct may be relevant to Plaintiff's § 1983 claims alleging a failure to train and a failure to supervise, which are asserted in Count Seven of the Amended Complaint. That is so because to hold a municipality liable under § 1983 for a failure to train or supervise its employees, such failure must rise to the level of "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." City of Canton, Ohio v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ; see also Gold , 151 F.3d at 1350. And such deliberate indifference may be established by evidence of "a pattern of similar constitutional violations by untrained employees"; indeed, such proof is typically necessary for a plaintiff to prevail. See Connick v. Thompson , 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011); Board of Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ; see also Cook v. Sheriff of Monroe Cty., Fla. , 402 F.3d 1092, 1105 (11th Cir. 2005) ; Gold v. City of Miami , 151 F.3d 1346, 1350 (11th Cir. 1998). Defendants emphasize, however, citing Mercado v. City of Orlando , 407 F.3d 1152 (11th Cir. 2005), that such incidents, to be relevant, must evidence employee misconduct arising out of facts that are "substantially similar to the case at hand." Id. at 1162. Defendants further contend, relying on Brooks v. Scheib , 813 F.2d 1191, 1193 (11th Cir. 1987), that for incident complaints to establish knowledge of a need for further training on the part of the City, Plaintiff must also show that such complaints were, in fact, valid. Defendants thus suggest that while Plaintiff might properly "request complaints involving the use of excessive force via shootings, which were sustained, against Officer Aguirre," Defendants argue that Plaintiff's subpoenas to the FOPs instead "request broad, irrelevant categories of documents." (Doc. 58 at 5).

Answering Defendants' relevancy objection on the merits³ , Plaintiff insists that all his subpoena requests for documentation on prior incidents are within the scope of discovery permitted under Rule 26(b)(1). (Doc. 64 at 2–5). He argues that Defendants' reliance on Mercado and Brooks is misplaced because those decisions address whether a plaintiff had presented sufficient admissible evidence of prior similar incidents to create a disputed issue of fact at summary judgment with respect to a local government's awareness of a need for further training, not whether or to what extent the plaintiff was entitled to conduct discovery into prior incidents. (Id. at 3). Plaintiff also seems to take the position that prior incidents and complaints are relevant to the City's knowledge so long as they implicate the use of "excessive force" by the City's police of any sort, whether or not they involved a shooting. In support, he identifies six opinions from this court holding that plaintiffs had presented sufficient evidence at summary judgment to indicate that City police officers had applied unconstitutionally excessive force through various different means. See Nevels v. City of Birmingham , 2015 WL 6746780 (N.D. Ala. Nov. 5, 2015) (physical assault and use of mace); J.W. v. Birmingham Bd. of Educ. , 143 F.Supp.3d 1118 (N.D. Ala. 2015) (use of chemical spray by school resource police officer on restrained students); Thompson v. City of Birmingham , 5 F.Supp.3d 1304 (N.D. Ala. 2014) (physical assault); Blanchard v. City of Birmingham , 2012 WL 5426228 (N.D. Ala. Nov. 2, 2012), on reconsideration , 2013 WL 169285 (N.D. Ala. Jan. 15, 2013) (physical assault); McElroy v. City of Birmingham , 903 F.Supp.2d 1228 (N.D. Ala. 2012) (shooting). "All in all," Plaintiff concludes, "[the] requests to the FOP[s] are narrowly tailored, the relevancy of the requested materials is high, and the question of admissibility can be resolved on a later day." (Id. at 4).

As a threshold matter, the court would recognize that Plaintiff's subpoenas are not at all limited to seeking information on incidents that are even arguably "similar" under any commonly-understood definition of that word. Plaintiff says that his subpoena requests are "narrowly tailored" to obtain materials "the relevancy of [which] is high." (Doc. 64 at 4). To be frank, however, that characterization could hardly be less apt. In particular, the initial request of each subpoena asks the target FOP to produce "all documents relating to each incidence wherein [an FOP] attorney and/or representative has appeared at a crime scene, Internal Affairs interview, personnel hearing, disciplinary hearing for any City of Birmingham police officer...