Brown v. NYCDOC MDC

MEMOENDORSED 4.

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JAMES E. JOHNSON THE CITy OF New YORK JOSEPH ZANGRILLI

Corporation Counsel Senior Counsel

LAW DEPARTMENT Phone: (212) 356-2657

100 CHURCH STREET, Rm. 3-155 suanaril@ law □□□ □□□

NEW YORK, NY 10007

September 30, 2020

BY ECF

Honorable Edgardo Ramos

United States District Judge

United States District Court

Southern District of New York

40 Foley Square

New York, New York 10007

Re: Shamone Brown v. The City of New York, et al., 20-CV-2144 (ER)

Your Honor:

I am a Senior Counsel in the office of James E. Johnson, Corporation Counsel of the City

of New York, and the attorney assigned to represent the City of New York and the Warden of the

Manhattan Detention Center in the above-referenced matter. For the reasons set forth below, this

Office respectfully requests a stay of the present civil proceeding in its entirety until thirty (30)

days after the resolution of a Department of Correction (“DOC”) investigation into the

underlying allegations in this case. This is the first such request.’ Plaintiff Shamone Brown

consents to this request.

By way of background, plaintiff filed the Complaint in this action on March 10, 2020,

and an Amended Complaint on May 28, 2020, alleging, inter alia, that certain unidentified

officers failed to protect him and were deliberately indifferent to his medical needs when he was

assaulted by unidentified inmates on May 8, 2019. (ECE No. 9.) In the course of reviewing this

matter, the undersigned learned that there is an ongoing investigation by the DOC Investigations

Division arising out of the incident alleged in the complaints. Defendants therefore respectfully

request a stay of this matter, pending the resolution of the DOC investigation for the following

reasons.

' Defendants previously requested an enlargement of time to respond to the Court’s June 19,

2020 Order and respectfully request that the Court also enlarge defendants’ time to respond to

the Valentin Order until thirty (30) days after the resolution of the ongoing DOC investigation.

Federal courts have inherent power and discretionary authority to stay a case if the

interests of justice so require. See United States v. Kordel, 397 U.S. 1, 12 n.27 (1970); Kashi v.

Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986); Volmar Distributors, Inc. v. The New York Post

Co., Inc., 152 F.R.D. 36, 39 (S.D.N.Y. 1993). More specifically, federal courts are authorized to

stay a civil action pending the outcome of a related proceeding. See, e.g., Kashi v. Gratsos, 790

F.2d 1050, 1057 (2d Cir. 1986) (“[A] court may decide in its discretion to stay civil

proceedings . . . when the interests of justice seem . . . to require such action.”) (internal

quotation marks and citations omitted); Bristol v. Nassau County, No. 08-CV-3480 (JFB)

(WDW), 2010 U.S. Dist. LEXIS 39634, at *1 (E.D.N.Y. Apr. 22, 2010) (“A district court has the

discretionary authority to stay a civil action pending the resolution of a parallel criminal

proceeding when the interests of justice so require.”) (quoting Johnson v. New York City Police

Dep’t, No. 01 Civ. 6570 (RCC) (JCF), 2003 U.S. Dist. LEXIS 12111, at *2 (S.D.N.Y. July 16,

2003)); Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. 268, 269 (S.D.N.Y. 1995) (“It is

well settled that the court may (and indeed, should) stay a federal Section 1983 action until

resolution of parallel state court criminal proceedings.”).

In the instant matter, this Office will be unable to resolve representational issues with any

involved officers until the aforementioned DOC investigation is complete. See N.Y. Gen. Mun.

L. § 50-k; Mercurio v. City of N.Y., 758 F.2d 862, 854-65 (2d Cir. 1985) (quoting Williams v.

City of N.Y., 64 N.Y.2d 800, 486 N.Y.S.2d 918 (1985) (stating that the decision to represent

individual defendants is made by the Corporation Counsel as set forth in state law)). A stay of

the instant matter would therefore safeguard against the possibility that a conflict of interest may

arise during the pendency of the litigation. Pursuant to N.Y. General Municipal Law § 50-k,

Defendant City is obligated to provide representation to individual defendants to the extent that

they were acting within the scope of their duties as employees during the incident in question.

Thus, this office must first determine whether any individual employee “was acting within the

scope of his public employment and in the discharge of his or her duties and was not in violation

of any rule or regulation of his or her agency at the time the alleged act or omission occurred.”

Should a stay not be granted, Defendant City may be forced to represent officers prior to learning

the outcome of its own investigation concerning the alleged conduct. Should the officers later be

found responsible for any wrongdoing as a result of that investigation, defense counsel may be

conflicted out of the matter entirely and new counsel would need to be retained for all

defendants. Such a scenario during the course of discovery would certainly cause a greater

disruption to the instant action than the requested stay at this early stage.

Moreover, best practices prevent this Office from even communicating with individual

defendants until the resolution of the investigation. As Defendant City is a municipality, it can only

communicate through its agents. If this office cannot communicate with individual defendants, the

City of New York cannot even offer a version of the events in question, let alone prepare an

effective defense of the claims asserted by plaintiff.

Finally, the parties will require the documents associated with the DOC Investigation

Division file, many of which (to the extent that they exist) will be protected from discovery by

the deliberative process privilege prior to the conclusion of the DOC investigation, both to

respond to the Valentin Order and to proceed with discovery. See Nat’] Council of La Raza v.

Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (the deliberative process privilege is (1)

designed to promote the quality of agency decisions by preserving and encouraging candid

discussion between officials, and (2) based on the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery and

front page news; an inter-agency or intra-agency document may be subject to the privilege if it is

both pre-decisional and deliberative) (internal citations and quotations omitted). Furthermore,

the law enforcement privilege prevents disclosure of a pending investigation in order to, inter

alia, “safeguard the privacy of individuals involved in an investigation, and otherwise to prevent

interference with an investigation.” National Congress for Puerto Rican Rights v. The City of

New York, et al. 194 F.R.D 88, 93 (S.D.N.Y.) (citing In re Dep’t of Investigation of the City of

New York, 856 F.2d 481, 484 (2d. Cir. 1988) (citations omitted)). Consequently, the parties to

this action will not have access to vital information, including witness statements, until the DOC

investigation is resolved.

For the foregoing reasons, defendants respectfully request that the Court grant a stay of

the instant litigation until the conclusion of the DOC investigation. Should the Court grant the

requested stay, at the direction of the Court, the undersigned will file status letters regarding the

progress of the DOC investigation.

Defendants thank the Court for its time and consideration of the within request.

Respectfully submitted,

/s/

Joseph Zangrilli

Senior Counsel

BY FIRST-CLASS MAIL

Shamone Brown

□□ The application is GRANTED. This case is STAYED until 30 day

Mi d- state Correctional Facility the completion of the investigation by the Department of Correctio

9005 Old River Road the alleged incident. The Court's Valentin Order of June 19, 2020,

P.O. Box 2500 11, is likewise stayed.

Marcy, New York 13403

The Law Department is directed to file a status report with the Cou

upon the earlier of the completion of the investigation or January 8

2021. The Department is further directed to serve this memo

endorsement on the plaintiff.

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ZX I) e

Edgardo Ramos, U.S.D.J

Dated: Sept. 30, 2020

New York, New York