# Brown v. City of Alexandria

> District Court, W.D. Louisiana · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10194841

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10194841

## How later opinions describe it (automated extraction)

- holding that 11 incidents of warrantless entry did not support a pattern of unconstitutional warrantless entry
- affirming the district court’s ruling that 27 complaints of excessive force filed over a period of four years were insufficient to establish a pattern of excessive force

## Opinion text

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

DAQUARIOUS DASHAWN CIVIL ACTION NO. 1:20-CV-00541
BROWN,
Plaintiff

VERSUS JUDGE JOSEPH

CITY OF ALEXANDRIA, , MAGISTRATE JUDGE PEREZ-MONTES
Defendants

MEMORANDUM ORDER
Before the Court is a Motion to Compel (ECF No. 45) filed by Plaintiff
Daquarious Dashawn Brown (“Brown”). Brown seeks to compel the Defendant the
City of Alexandria’s (the “City’s”) responses to his Revised Request for Production1 by
permitting the inspection and copying of documents and information, and he seeks
attorney’s fees and costs. ECF No. 45 at 1. The City opposes. ECF No. 50.
Because documents pertaining to King concerning failure to investigate or
discipline of an officer for complaints of excessive force are potentially relevant to
Brown’s claims, Brown’s motion (ECF No. 45) is GRANTED IN PART as to

1 The City notes that the subject of this motion is Brown’s “second” Revised Request for
Production (ECF No. 48). ECF No. 50 at 5. This was issued March 26, 2021. ECF No. 48 at
18. The City shows Brown sent a “first” Revised Request for Production” on August 14, 2020.
ECF No. 50-1 at 21. However, the City asserts they are all essentially seeking the same
information. ECF No. 50 at 5. The City claims the responses at issue were produced in
response to the first request. Brown challenges the City’s April 27, 2021 discovery responses.
ECF Nos. 48-1, 50-2. Nowhere does Brown address or refute the City’s assertions concerning
the various iterations. Therefore, the Court will not, and need not, parse out which one is at
issue. The Court simply examines the City’s responses and Brown’s assertions concerning
objections and alleged deficiencies.
Request for Production No. 11 requesting information pertaining to King. Because
Brown’s request for complaints of excessive force maintained by APD Internal Affairs
is relevant to his claims (limited to the five years preceding the incident and

limited to excessive force complaints), Brown’s motion (ECF No. 45) is GRANTED IN
PART as to Request for Production No. 12.
Because the City provided supplemental responses and an affidavit
establishing there are no documents responsive to Requests for Production Nos. 14,
15, and 17, Brown’s motion (ECF No. 45) seeking to compel responsive documents is
DENIED IN PART AS MOOT.
Because the City supplemented production in response to Request for

Production No. 11 with documents pertaining to Rachal, which is also responsive to
Request for Production No. 7, and because Whitney, Rodney, and Branton are no
longer parties and the information requested in Request for Production Nos. 11 and
13 pertaining to them is no longer relevant, Brown’s motion (ECF No. 45) relating to
those requests is DENIED IN PART AS MOOT.
And because Request for Production Nos. 2, 3, 4, and 6 are not relevant to

Brown’s claims and are outside the scope of Rule 26, Brown’s motion (ECF No. 45) is
DENIED IN PART as to those requests.
I. Background
Brown filed a Complaint (ECF No. 1) under 42 U.S.C. § 1983 for claims arising
from a March 19, 2019 incident with Kenneth E. Rachal (“Rachal”) involving
excessive force. Brown originally named as Defendants the City, Jerrod King
(“King”), Bobby Branton (“Branton”), Thomas J. Rodney (“Rodney”), Carla J.
Whitstine (“Whitstine”), and Rachal (collectively, “Defendants”). ECF No. 1 at 1-2.
Brown filed an Amended Complaint (ECF No. 57), removing Defendants

Whitstine and Rodney and all allegations against them, and removing his § 1983
claims for false arrest and racial discrimination against all Defendants. ECF No. 57
at 4-5. Also, after the filing of this motion, and with no opposition from Brown, the
Court granted summary judgment dismissing all claims against Branton. ECF No.
75.
Brown alleges Rachal, a Lieutenant with the Alexandria Police Department
(“APD”), intentionally and willfully subjected him to excessive force while effecting

an arrest. ECF Nos. 1 at 2, 57 at 2. He contends that APD officers Rachal, Whitstine,
Rodney, and Branton – not in standard APD uniform and riding in an unmarked
vehicle – were looking for a burglary suspect Germanneek Beyard (“Beyard”). ECF
Nos. 1 at 6, 57 at 6. While traveling on Duhon Street, the officers observed a tan or
gold SUV parked on Hargis Street with two black male front seat occupants
purportedly wearing black clothing and with “braided hair.” ECF Nos. 1 at 6-7, 57 at

7. Brown alleges officers never identified any occupant as Beyard. ECF No. 57 at 7.
The officers approached the SUV and Whitstine opened the front driver’s door.
ECF Nos. 1 at 7, 57 at 7. Brown started the vehicle and drove away, ignoring the
officers’ orders to stop. ECF Nos. 1 at 7, 57 at 8. A high-speed pursuit ensued.
The front seat passenger Devon McCoy (“McCoy”) exited the SUV, fled on foot, and
was captured. ECF No. 57 at 9. Brown continued fleeing, exited the SUV while it
was moving, and fled on foot on Laccasine Drive. ECF Nos. 1 at 8, 57 at 9. Rachal
and Branton pursued Brown on foot, and Brown was arrested in a wooded area near
Laccasine Drive. ECF Nos. 1 at 8, 57 at 9.

Brown claims Rachal struck him repeatedly in the head and body with his
pistol after he stopped his flight, was not resisting, and was in the process of lying
face down on the ground. He alleges Branton did nothing to intervene. ECF Nos.
1 at 8, 57 at 10. Brown claims he did not meet the description of Beyard. ECF No.
57 at 10. And he asserts the officers lacked any reasonable suspicion to stop him, or
probable cause to search his vehicle, at the initial encounter.
Brown’s remaining claims include a § 1983 claim against Rachal in his

individual capacity for excessive force in violation of the Fourth and Fourteenth
Amendments. ECF Nos. 1 at 18, 57 at 15. He also asserts § 1983 claims against the
City and King, in his official capacity, for deliberately indifferent policies, practices,
customs, training, and supervision in violation of the Fourth and Fourteenth
Amendments. ECF Nos. 1 at 24, 57 at 19, 22.
Also remaining are Brown’s supplemental state law claims against Rachal for

excessive force, assault, and battery, and intentional infliction of emotional distress,
and against King and the City for vicarious liability for the assault and battery. ECF
Nos. 1 at 29, 57 at 24. Brown seeks compensatory damages, punitive damages, and
attorney’s fees under §§ 1983 and 1988. ECF Nos. 1 at 1, 57 at 1.
Defendants answered, asserting various affirmative defenses. ECF Nos. 8, 58,
62.2
Brown propounded a Revised Request for Production of Documents to the City

on March 26, 2021. ECF Nos. 48, 50-1. On April 28, 2021, the City responded and
produced documents, including a disc with APD videos and radio recordings. ECF
Nos. 48-1, 50-2. The City also provided the sworn Affidavit of APD Chief of Police
Ronney L. Howard (“Howard”). ECF No. 50-3. On June 11, 2021, the City provided
Supplemental Responses to Request for Production Nos. 14, 15, and 17. ECF No. 61.
Brown now seeks production of certain documents and information to which
the City objected. ECF No. 45. Brown seeks documents he claims will establish

unconstitutional patterns and practices by the City, and that will lead to admissible
evidence regarding punitive damages against the individual defendants and
municipal liability against the City. ECF No. 45-1 at 2.
The City’s objections fall into three categories: (1) that Request for Production
Nos. 2, 3, 4, 5,3 6, and 7 seeking documents relating to previous encounters with
Umika Young (“Young”), Doris Moses (“Moses”), and Chistopher Wilder (“Wilder”) are

irrelevant; (2) that Request for Production No. 11 seeking documents relating to “all
information” regarding complaints against non-defendants and King, Branton, and
Rachal is irrelevant; and (3) that Requests for Production Nos. 12, 13, 14, 15, and 17

2 On October 5, 2020, this action was stayed pending the outcome of underlying criminal
proceedings pursuant to , 512 U.S. 477 (1994). ECF No. 29. The stay was
lifted on resolution of those proceedings. ECF No. 33.

3 Brown withdrew Request for Production No. 5 following the filing of his Amended
Complaint. Thus, the Court need not address it. ECF Nos. 45-1 at 2, n.1, 59 at 1, n.1.
are irrelevant, overbroad, and unduly burdensome because they seek all information
regarding all excessive force complaints against all APD officers; relating to civilian
injuries sustained as a result of an arrest by King, Branton, Rodney, Whitstine, and

Rachal; regarding any civilian charged with assault against a police officer in the
past 10 years; regarding any APD access to criminal information services regarding
Brown, and other non-party individuals, over the last 10 years; and regarding any
copies of agenda meetings for APD staff and command for the last 10 years. ECF No.
60.
The Court held oral arguments. ECF Nos. 56, 78, 59, 60. The City advised
supplemental production of discovery occurred, and the parties agreed it was unclear

what remained at issue for resolution. ECF No. 56. The Court ordered supplemental
briefing, allowing the parties to address what, if any, disputes remained as to the
City’s production. ECF No. 56.
Both parties filed supplemental briefs concerning the remaining disputes.
ECF Nos. 59, 60. According to Brown, the City produced incomplete supplemental
production of documents only relating Request for Production No. 11. ECF No. 59 at

1-3. Thus, Brown asserts the City should be ordered to comply with the remaining
disputed Request for Production Nos. 2, 3, 4, 6, 7, 11, 12, 13, 14, 15, and 17. at 3.
The City reiterates its objections in supplemental briefing, and asserts that Requests
for Production Nos. 14, 15, and 17 are resolved, as they supplemented production and
confirmed the lack of responsive records. ECF Nos. 50, 60, 61.4

4 None of the oral argument, briefing, or supplemental briefing addressed the dismissal of
Branton subsequent to the filing of this motion.
II. Law and Analysis
A. A party seeking discovery may move to compel where a party fails to
fully and timely respond to discovery requests.

A party may serve on any other party a request for production of any tangible
thing within the party’s possession, custody, and control that is within the scope of
Rule 26. Fed. R. Civ. P. 34(a)(1)(B).
Rule 26(b)(1) of the Federal Rules of Civil Procedure states:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any non-privileged
matter that is relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be
discoverable.

Fed. R. Civ. P. 26(b)(1). A court must limit the frequency or extent of discovery if it
determines that: “(i) the discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient, less burdensome,
or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or (iii) the proposed discovery is outside
the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
If a party fails to respond fully to discovery requests in the time allowed by the
Federal Rules of Civil Procedure, the party seeking discovery may move to compel
responses and for appropriate sanctions under Rule 37. An “evasive or incomplete
disclosure, answer, or response must be treated as a failure to disclose, answer or
respond.” Fed. R. Civ. P. 37(a)(4).
B. Discovery in claims is often broad to allow plaintiffs the
opportunity to establish official policy, practice or custom.

The briefs did not squarely address the discovery limitations related to
claims in § 1983 claims. But, “there is a surprising dearth of case law in this circuit
that relates to discovery limitations in Section 1983 claims, including claims.”
, 2020 WL 12801030, at *2 (E.D. La. Jun. 26,
2020). In addressing similar discovery disputes in claims, district courts in
other circuits, routinely recognize that “broad and substantial” discovery is often
required that is otherwise not involved if a plaintiff sued only the individuals directly
in the deprivation of her rights. (citing cases).5
Brown cannot recover on a § 1983 claim against the City unless he is able to

demonstrate that an official policy, widespread practice, or custom caused the
deprivation of his constitutional rights. , 237 F.3d
567, 578-79 (5th Cir. 2001); , 436 U.S. at 694. As the Eastern District
explained:
Although there is no clear consensus as to how frequently conduct must
occur to constitute a “widespread policy or custom,” [plaintiff] must
demonstrate that the alleged violation of her constitutional rights was
not merely an isolated event. , 414 F. Supp.
3d 995, 1007-08 (W.D. Tex. 2019) (citing ,
614 F.3d 161, 169 (5th Cir. 2010); , 863
F.2d 1180, 1184 (5th Cir. 1989)). While a detailed catalogue of similar
incidents may not always be available, a plaintiff must ordinarily at

5 Often, claims are disposed of through a motion to dismiss or summary judgment. Thus,
these type of claims often do not reach this stage of discovery. Here, no Rule 12 motions were
filed.
least “identify[ ] similar incidents” to prove her Section 1983 claim.
(citing , 712 F. App'x 396, 401 (5th Cir.
2017)); , Civ. A. No. 12-1274, 2014 WL 1246771,
at *3 (E.D. La. Mar. 25, 2014) (finding that defendant need only produce
documents that relate to claims similar to those alleged in the
complaint).

In many claims under Section 1983, courts have found that
personnel records and documents relating to prior complaints are
relevant and proportional. , No. 4:17-CV-2187, 2019
WL 1499679, at *2 (E.D. Mo. Apr. 5, 2019) (finding personnel files
relevant and proportional to plaintiff's claim);
, No. 2:18-cv-2434, 2019 WL 3564168, at *5, 8 (E.D. Cal. Aug.
9, 2019) (granting motion to compel production of records concerning
hiring of officer and records of complaints about officer in action);
, No. CV 17-0781, 2018 WL 6136814,
at *9 (C.D. Cal. Jan. 12, 2018) (granting motion to compel records of
complaints and disciplinary action taken as to officers);
, 2018 WL 6321390, at *4 (W.D.N.Y Dec. 4, 2018) (finding any
documents related to deputies’ participation in DWI stops in their
personnel files relevant and proportional to plaintiff's claim);
, 2017 WL 713853, at *2 (E.D. La. Feb. 23,
2017) (ordering production of personnel file as relevant and proportional
to claim); , No. CV17-4557,
2017 WL 10605960, at *6-7 (C.D. Cal. Nov. 18, 2017) (granting motion
to compel records of training, misconduct, and discipline in officer's
personnel files in action); , No.
14cv2470, 2016 WL 11621299, at *7 (S.D. Cal. July 18, 2016) (finding
performance appraisal reports relevant and proportionate to the needs
of plaintiff's claim). Moreover, courts find that prior complaints
of bad conduct and investigations may lead to evidence to support a
claim. , 2020 WL 1890506, at *13 (upholding
magistrate judge's limitation to four years of records of emergency care
at prison relevant and proportional to plaintiff's claim);
, No. 2:18-cv-00494, 2019 WL 4193427, at *4 (D.N.M. Sept.
4, 2019) (finding prior incidents or complaints in personnel file relevant
and proportionate to plaintiff's claim);
, 2013 WL 5705352, at *4 (D. Nev. Oct. 17, 2013)
(holding that “information relating to prior complaints” is relevant to
show a departmental policy of “deliberate indifference to ... alleged
misconduct”); , No. 09 C 3489, 2010 WL
4875580, at *3 (N.D. Ill. Nov. 23, 2010) (holding that plaintiff was
entitled to discovery “directed to learning if claims of similar misconduct
have been brought in the past”); , No. 2:08-
CV-280, 2009 WL 2253157, at *6 (N.D. Ind. July 27, 2009) (holding that
plaintiff was entitled to discover “information pertaining to citizen
complaints, including the investigations thereof, or lawsuits alleging
excessive force by the Defendant Officers and all Gary Police Officers”);
, 936 F. Supp. 1201, 1206 (D.N.J. 1996)
(“[D]ocumentation of civilian complaints and the ... resultant
investigations are relevant and necessary to the plaintiffs’ burden of
establishing the requisite policy or custom and causation required for
municipal liability....”).

, 2020 WL 12801030, at *2–3.

However, the United States Court of Appeals for the Fifth Circuit has been
clear that constraints are warranted: “Where prior incidents are used to prove a
pattern, they ‘must have occurred for so long or so frequently that the course of
conduct warrants the attribution to the governing body of knowledge that the
objectionable conduct is the expected, accepted practice of city employees.’”
, 588 F.3d 838, 850 (5th Cir. 2009) (quoting
, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)).
Thus, “a plaintiff must demonstrate ‘a pattern of abuses that transcends the
error made in a single case.’” (quoting , 237 F.3d at 582). And such
pattern requires “similarity and specificity; ‘[p]rior indications cannot be for any and
all bad or unwise acts, but rather must point to the specific violation in question.’”
(quoting , 406 F.3d
375, 383 (5th Cir. 2005)). Establishing a pattern “requires ‘sufficiently numerous
prior incidents,’ as opposed to ‘isolated instances.’” (quoting
, 863 F.2d 1180, 1184 (5th Cir. 1989)); , 291
F.3d 325 (5th Cir. 2002) (holding that 11 incidents of warrantless entry did not
support a pattern of unconstitutional warrantless entry); ,588 F.3d
at 850 (affirming the district court’s ruling that 27 complaints of excessive force filed
over a period of four years were insufficient to establish a pattern of excessive force).

C. Concerning specific prior incidents, Brown’s Motion to Compel (ECF No.
45) is denied in part as to responses to Request for Production Nos. 2, 3,
4, and 6, and denied in part as moot as to responses to Request for
Production No. 7.

Brown seeks production of investigative records concerning specific prior
incidents between non-party citizens and Branton or Rachal in which Brown alleges
civil rights were violated. ECF No. 45-1 at 4. Specifically, Brown seeks documents
related to alleged police encounters with non-parties Young, Moses, and Wilder.6
Brown argues Branton was involved in three incidents involving the false
arrest of Young, the wrongful towing of her vehicle, and the unlawful seizure of her
televisions. Brown argues that, like Young, officers investigated him without
reasonable suspicion. at 5. Thus, Brown propounded Request for Production Nos.
2, 3, and 4 seeking documents and information pertaining to the three incidents. ECF
No. 45-1 at 4.
He also argues Rachal was involved in excessive force incidents with Moses
and Wilder. at 4-5. Brown alleges Rachal was terminated after the excessive force

6 As noted above, the parties submit different iterations of discovery requests allegedly at
issue. The Court observes that Requests for Production Nos. 5, 6, and 7 are not identical in
the various iterations. However, it is clear the parties dispute the discoverability of the
documents and information requested pertaining to Young, Moses, and Wilder. Thus, the
Court will address that issue regardless of which numbered request it pertains to.

This is the case for several of the requests, but the Court will deal with the content of the
requests for the remainder of this opinion without further belaboring the point.
incident with Wilder but was reinstated. at 5. He contends that, like Moses and
Wilder, Rachal used excessive force against him. Thus, Brown seeks related
documents and information through Request for Production Nos. 6 and 7.

Specifically, Brown seeks production of all documents and information
concerning the following citizen encounters:
(1) A police visit in October of 2018 to Young’s residence by Whitstine,
Branton, Tanner Dryden, and Trever Billington of APD, in which her vehicle
was allegedly towed (ECF Nos. 48 at 7, 50-1 at 7);
(2) Young’s arrest on February 1, 2019 by Whitstine, Branton, Dryden, and
Billington (ECF Nos. 48 at 9-10, 50-1 at 9-10);

(3) The seizure of televisions from Young’s residence in October of 2018 by
Whitstine, Branton, Dryden, and Billington (ECF Nos. 48 at 10-11, 50-1 at 11-
12);
(4) The alleged assault upon and arrest of Moses on April 8, 2007, near her
residence (ECF Nos. 48 at 12-14, 50-1 at 14-16);
(5) The events leading up to the alleged assault upon and issuance of

citation to Wilder on May 9, 1999 by Rachal (ECF Nos. 48 at 14-15, 50-1 at 16-
17).
Brown contends that the requested information is relevant to his municipal
liability claim and his punitive damages claim against the individual Defendants.
at 6. Brown argues privilege was not asserted and does not apply. ECF No. 45-1 at
5. And he cites caselaw from other circuits, arguing that documents concerning such
prior instances or complaints are discoverable and relevant to either claims
or punitive damages. ECF No. 45-1 at 6 (citing cases).
The City’s blanket objections to Requests for Production Nos. 2, 3, 4, 6, and 7

each assert that the requests seek “irrelevant documents not reasonably calculated
to lead to the discovery of admissible evidence,” and that any evidence “would be
prejudicial, likely to confuse the issues, constitute a waste of time, and would be
inadmissible as per Fed. R. Evid. 403.” ECF Nos. 48-1, 50-2.7
The City also argues Brown cannot pursue discovery of any alleged “patterns
and practices” relating to the alleged warrantless or illegal arrest or malicious
prosecution of Young, Moses, or Wilder, as they are barred by , 512

U.S. 477 (1994). ECF Nos. 50 at 9, 60 at 2. The City argues that any APD encounters
with Young, Moses, and Wilder are “isolated incidents in 1999, 2007, and 2018” and
discovery of such isolated events, including illegal arrests, assertion of false charges,
or excessive force, cannot establish a pattern of civil rights violations. ECF No. 60 at
1-2.
The City contends any such documents are irrelevant. at 2. Specifically,

the City argues Brown does not allege his car was towed or that his property was
seized, and he does not assert Young experienced excessive force. ECF Nos. 50 at 9,
60 at 2. The City asserts that documents related to such isolated incidents would
not support Brown’s putative damages or municipal liability claims for excessive

7 The phrase “reasonably calculated to lead to the discovery of admissible evidence” no longer
defines the scope of discovery. Fed. R. Civ. P. 26(b)(1). Thus, the City’s objection on that
basis is overruled. Information need not be admissible to be discoverable. Fed. R. Civ. P.
26(b)(1).
force. The City further contends Brown’s Amended Complaint contains no
allegations of an “investigation of Plaintiff that was not based on reasonable
suspicion,” and that any request related to Moses is irrelevant. ECF No. 50 at 14.8

Here, incidents relating to Whitstine, Branton, Dryden, and Billington bear no
relevance to Brown’s claims. Whitstine is no longer a party, and claims against her
were removed by amendment. ECF No. 57. Branton and all claims against him have
been dismissed through summary judgment, without opposition. ECF No. 75.
Additionally, Request for Production Nos. 2, 3, and 4 do not relate to excessive force
incidents, or investigation of an excessive force incident. Thus, any information
concerning complaints against Whitstine and Branton are irrelevant and outside the

scope of discovery under Rule 26. For the same reason, Brown is not entitled to
records regarding the conduct of non-party officers Dryden or Billington. Thus,
Brown’s motion (ECF No. 45) is denied in part as to Request for Production Nos. 2, 3,
and 4.
Likewise, Brown’s Request for Production No. 6 relating to an assault of non-
party citizen Moses from 2007 is outside the scope of discovery. The requested

information amounts to an “isolated act” that generally could not establish the
existence of a custom or practice. , 336 F.3d 363,
370 (5th Cir. 2003) (holding that “isolated acts” generally cannot establish the
existence of a custom or practice); , 614

8 Regarding the alleged “road rage” incident involving Wilder from over 20 years ago, the City
represents they provided excerpts of Rachal’s Internal Affairs and Personnel files containing
documentation relating to Wilder through their supplemental response to Request for
Production No. 11. ECF No. 60 at 3.
F.3d 161, 169 (5th Cir. 2010) (“Those prior instances, however, must be not only
similar to conduct at issue in the plaintiff’s case but also persistent as opposed to
sporadic or isolated.”); , 588 F.3d 838, 851

(5th Cir. 2009) (“A pattern requires similarity and specificity; [p]rior indications
cannot simple be for any and all bad or unwise acts, but rather must point to the
specific violation in question.”). Therefore, Brown’s motion is denied in part as to
Request for Production No. 6.9
Regarding Request for Production No. 7 for an over 20-year-old alleged battery
of Wilder by Rachal, any excessive force complaint made against Rachal would
certainly be relevant to Brown’s claim. And Brown would be entitled to the Internal

Affairs investigation relating to complaints of the use of excessive force against
Rachal. However, the City represents that their supplemental responses to Request
for Production No. 11 contained Rachal’s Internal Affairs and Personnel files
excerpts, which contained the City’s documentation relating to Wilder. ECF No. 60
at 3. The City represents that they are not aware of any additional documents
relating to Wilder. And Brown acknowledges receipt of records related to Rachal.

ECF No. 59 at 3. Thus, Brown’s motion is denied in part as moot as it relates to
Request for Production No. 7.

9 While Brown’s Request for Production No. 6 does not mention Rachal by name, he argues
that the incident involved the use of excessive force by Rachal. ECF No. 45-1 at 5. However,
the City represents that they already produced – and Brown acknowledged receipt of –
Rachal’s Internal Affairs and Personnel Files excerpts. ECF No. 60 at 3. To that extent,
Brown’s request is also moot.
D. Brown’s Motion to Compel (ECF No. 45) responses to Request for
Production No. 11 is denied in in part as moot, as to information relating
to Whitstine, Rodney, Rachal, and Branton, and is granted in part as to
the remaining requested information relating to King.

Through Request for Production No. 11, Brown seeks all information
maintained “in the computer or computers” by the APD Internal Affairs Division “or
other division of the [APD]” regarding complaints against King, Branton, and Rachal.
ECF Nos. 45-1 at 4, 48 at 16, 50-1 at 19.10 Brown apparently concedes he only seeks
complaints as to King, Branton, and Rachal, and abandons any request related to
Whitstine or Rodney. ECF No. 45-1 at 4.11 Brown acknowledges receipt of the City’s
supplemental response to Request for Production No. 11 and receipt of the requested
documents and information pertaining to Rachal. ECF No. 59 at 2-3. However,
Brown argues he seeks production related to the remaining individuals – King and
Branton. ECF No. 59 at 1.
The City objects to the request as vague, overbroad, and calling for irrelevant
documents. ECF No. 48-1 at 17. The City contends that purported “complaints”
concerning King, Branton, or Rachal would have no bearing on the subject incident.
And they argue that even if relevant, they would be inadmissible under Fed. R.
Evid. 403. at 18.

10 In reviewing the two iterations submitted by the parties, Brown’s attachment reflects this
request in Request for Production No. 10. ECF No. 48-1 at 16. However, in the City’s
attachment, the request is reflected in Request for Production No. 11. ECF No. 50-1 at 19.
Nevertheless, the dispute is the same.

11 Also, Whitstine and Rodney were removed as defendants through Brown’s Amended
Complaint. ECF No. 57. To the extent Brown’s motion sought to compel documents related
to Whitstine and Rodney, Brown’s request is moot.
Here, Brown’s request for documents pertaining to Rachal through Request
for Production No. 11 is denied as moot. Also, after Brown’s motion, Branton and all
claims against him were dismissed by summary judgment without opposition. ECF

No. 75. Therefore, as to information relating to Branton, Brown’s motion is denied in
part as moot.
However, to the extent any are maintained by APD Internal Affairs Division,
information of “complaints” pertaining to King, is relevant to Brown’s claims
against the City and King. “Relevant information need not be admissible at the trial
if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26. Such discovery could establish whether misconduct

complaints amounted to a pattern of using excessive force or a failure to properly
investigate excessive force complaints, or discipline the individual, as a potential
basis for liability. Thus, Brown’s motion is granted in part as to information
requested relating to King. But, the Court agrees that there should be a temporal
limitation, and that “complaints” must be limited to nature of the claims made.12

12 When faced with a plaintiff’s request that is disproportionate to the needs of the case to
establish a pattern, courts often fashion temporal limitations.
, 2020 WL 1890506, at *13 (D. Md. Apr. 15, 2020) (upholding magistrate
judge's limitation to four years of records of emergency care at prison relevant and
proportional to plaintiff's claim); 2017 WL 9534098, at *4 (N.D.
Tex. Apr. 10, 2017) (limiting production of formal and informal complaints to two years before
incident); , 2016 WL 684607, at *8 (M.D. La. Feb. 18,
2016) (limiting production of complaints of sexual harassment, sex-based discrimination, and
retaliation to five years before lawsuit); , 2017 WL 713853, at
*3 (E.D. La. Feb. 23, 2017) (allowing discovery into discipline within the District Attorney's
Office for violations that occurred five years before and five years after alleged crime);
, Case No. 18-cv-1028, 2020 WL 3050230, at *1 (N.D. Ill. June
8, 2020) (noting there was “a significant temporal problem” in seeking communications from
Therefore, the Court temporally limits Request for Production No. 11 as to
King to the five-year period preceding the incident. The Court also finds that the
information pertaining to King shall be limited to complaints against King regarding

failure to investigate, or discipline an officer, for a complaint of excessive force. The
City shall provide the remaining production in response to Request for Production
No. 11 in accordance with these limitations, subject to any redactions or objections on
the basis of privilege or work-product protections, which should be reflected in a
privilege log. Should there be no responsive documents, the City will certify that as
a response.
E. Brown’s Motion to Compel (ECF No. 45) responses to Request for
Production No. 12 is granted in part.

Brown seeks “all information” maintained by APD Internal Affairs or any other
division concerning “all complaints” of excessive force against any APD police officer
over the last ten years. ECF No. 45-1 at 8. The City objects to the request as
“overbroad, unduly burdensome, and calling for the production of irrelevant
documents not reasonably calculated to lead to the discovery of admissible evidence.”
ECF No. 50 at 17, 50-2 at 17.
But, as noted previously, the scope of discovery no longer requires that the
requested information lead to admissible evidence. Fed. R. Civ. P. 26. And in this
instance, Brown seeks information intended to establish an official policy, custom, or

practice supporting a claim. Again, cases involving -type claims often

2010 to the present to prove allegations relating to misconduct from the 1990s, and that any
such communications are very unlikely to contain relevant information).
require broad discovery. , 2021 WL
5578076, at *3 (S.D. Ill. Oct. 19, 2021) (citing cases); ,
2013 WL 5175680, at *1 (E.D. La. Sept. 12, 2013) (using misconduct complaints,

including ones not sustained, to conclude that there was sufficient evidence to support
plaintiff's claim) (citing 89 F.3d 966, 968–69 (3d
Cir. 1996)).
The requested information is discoverable because it may be relevant to the
claim. , 2020 WL 12801030, at *2; ,
2020 WL 6940985, at *3 (N.D. Ill. Nov. 24, 2020). However, the Court temporally
limits Brown’s request for complaints of excessive force – sustained or unsustained –

made against any APD police officer to the five-year period preceding the incident.
, 2013 WL 5175680, at *1. The City shall produce supplemental
responses to include this information, if any, subject to any redactions or a privilege
log.13
F. Brown’s Motion to Compel (ECF No. 45) responses to Request for
Production No. 13 is denied as moot.

Brown’s original request sought “[a]ny and all records, reports, documents, or
other writings relating to injuries sustained by any civilian” resulting from an
apprehension or arrest involving King, Branton, Rodney, Whitstine, and Rachal.

13 Whether the information is contained in personnel files does not change the Court’s finding
concerning discoverability and relevance. And it is premature at this stage to make any
determinations as to privilege, as that issue was not asserted or briefed. Absent that,
personnel records and documents relating to prior complaints of excessive force are
potentially relevant to Brown’s claim. And most courts allow discovery of police
internal affairs investigations of officer misconduct. , 2009 WL
10679761, at *7-8 (E.D. La. Oct. 6, 2009).
ECF No. 48 at 17. The City objected to the request as overbroad, unduly
burdensome, and irrelevant. ECF Nos. 50 at 19, 50-2 at 18.14
In his brief, Brown seemingly abandons some of his request, arguing he seeks

APD records of civilian injuries suffered during, or resulting from, arrests by King,
Branton, or Rachal. ECF No. 45-1 at 4. Therefore, to the extent Brown seeks to
compel production of documents outside of APD records or related to Rodney or
Whitstine, Brown’s request is denied as moot. Also, Branton has been dismissed.
Related requests are also denied as moot.
The remaining portion of the request is overbroad or unduly burdensome, as it
seeks information related to all injuries sustained by any civilian during an arrest.

Still, any information concerning a civilian injury sustained during the alleged use of
excessive force by Rachal would be potentially relevant to Brown’s excessive forceand
claims. That production would overlap the Court’s order requiring production
of sustained and unsustained complaints of excessive force, however, and documents
already produced by the City concerning any complaints regarding Rachal.
Therefore, this request is also denied as moot.

G. Brown’s Motion to Compel (ECF No. 45) responses to Requests for
Production Nos. 14, 15, and 17 is denied as moot.

The City produced Supplemental Responses to Requests for Production Nos.
14, 15, and 17 (ECF No. 61). The City also provided Howard’s Affidavit (ECF No. 50-

14 The City also objected based on admissibility under the old version of Rule 26, which the
Court need not address again.
3), establishing that there were no documents responsive to Brown’s Requests for
Production Nos. 14, 15, and 17. ECF Nos. 50 at 19-21, 50-3, 60 at 5-6, 61.
Therefore, Brown’s request for additional production related to those requests

is denied as moot.
H. Brown’s motion for expenses and attorney’s fees (ECF No. 45) is denied.

Brown seeks reasonable expenses and attorney’s fees incurred in the
preparation and filing of his motion. A court must award fees and costs if the motion
is granted or if the requested discovery responses are provided after the motion is
filed. Fed. R. Civ. P. 37(a)(5)(A). However, a court is not required to award fees and
expenses if other circumstances make an award of expenses unjust. Fed. R. Civ. P.
37(a)(5)(A)(iii).
Here, the City was largely justified in asserting that Brown’s remaining
production requests were overly broad, unduly burdensome, moot, or otherwise
outside the scope of discovery. Therefore, an award of fees and expenses is
unwarranted.
III. Conclusion

For these reasons,
IT IS HEREBY ORDERED that Brown’s Motion to Compel (ECF No. 45) is
GRANTED IN PART to the following extent:
(1) In response to Request for Production No. 11, the City is ordered to
produce the requested information for complaints concerning King, limited to the
five-year period preceding the incident and limited to complaints against King
concerning failure to investigate, or discipline an officer, for a complaint of excessive
force, to the extent any are maintained by APD Internal Affairs Division. To the
extent the City asserts any privilege, work product, or confidentiality objections, the

City shall produce a log for those records withheld.
(2) In response to Request for Production No. 12, the City is further ordered
to produce complaints of excessive force – sustained or unsustained – made against
any APD police officer in the five-year period preceding the incident, subject to any
redactions or privilege asserted. To the extent the City asserts any privilege, work
product, or confidentiality objections, the City shall produce a log for those records
withheld.

IT IS FURTHER ORDERED that the City shall produce the responsive
documents no later than fourteen (14) days from the date of this Order.
Because the City produced responses and an affidavit attesting there were no
responsive documents to Requests for Production Nos. 14, 15, and 17, because the
City produced supplemental responses relating to Rachal in response to Request for
Production No. 11, which is also responsive to Request for Production No. 7, and

because Whitstine, Rodney, and Branton are no longer parties and information
relating to them in Request for Production Nos. 11 and 13 is irrelevant, Brown’s
Motion to Compel (ECF No. 45) responses to Request for Production Nos. 7, 11, 13,
14, 15, and 17 is DENIED IN PART AS MOOT.
Because Request for Production Nos. 2, 3, 4, and 6 are not relevant to Brown’s
claims and are outside the scope of Rule 26, Brown’s motion (ECF No. 45) is DENIED
IN PART as to those requests.
IT IS FURTHER ORDERED that, in all other respects, Brown’s Motion to
Compel (ECF No. 45) is DENIED.
IT IS FURTHER ORDERED that Brown’s request for an award of expenses
and attorney’s fees under Fed. R. Civ. P. 37(a)(5)(A) is DENIED.
THUS DONE AND SIGNED in Alexandria, Louisiana, on this £9th day of
March 2022.
~~ a
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10194841. Public record. Not legal advice.