Gugino v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

MARTIN GUGINO, DECISION

and

Plaintiff, ORDER

v.

21-CV-283V(F)

CITY OF BUFFALO,

MAYOR BYRON BROWN,

ROBERT McCABE,

AARON TORGALSKI,

JOHN LOSI,

BYRON C. LOCKWOOD,

DEPUTY POLICE COMMISSIONER

JOSEPH GRAMAGLIA,

Defendants.

_____________________________________

APPEARANCES: LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Plaintiff

MELISSA D. WISCHERATH, of Counsel

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

HODGSON RUSS LLP

Attorneys for Defendants

KARALYN ROSSI,

HUGH M. RUSS,

PETER A. SAHASRABUDHE, of Counsel

The Guaranty Building

140 Pearl Street, Suite 100

Buffalo, New York 14202

In this § 1983 action alleging violations of Plaintiff’s First, Fourth, and Fourteenth

Amendment rights, by papers filed June 23, 2022 (Dkt. 39), Defendants move for

bifurcation of discovery pursuant to Fed.R.Civ.P. 26(c) (“Rule 26(c)”) (Dkt. 39-1).

Specifically, Defendants request that discovery relating to Plaintiff’s claims against

Defendants based on Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S.

650 (1978) (“Monell”) be stayed until the threshold issue of whether Defendants violated

any of Plaintiff’s alleged constitutional rights is adjudicated in Plaintiff’s favor on

summary judgment. See Defendants’ Memorandum of Law, Dkt. 39-6 at 6 (citing Gavin

v. City of New York, 2021 WL 3774113 at *5 (S.D.N.Y. Aug. 2021) (noting that

defendant’s liability was predicated upon whether plaintiff can first show a constitutional

violation and explaining that “bifurcating the case, at least until [the plaintiff] prevails on

a motion for summary judgment, bears the potential of reducing unnecessary discovery

and is therefore warranted”). Plaintiff responded to the motion by papers filed July 19,

2022 (Dkts. 43 to 43-12),1 and Defendants replied by papers filed July 26, 2022 (Dkts.

45 to 45-5). Oral argument was deemed unnecessary.

In his Complaint, Plaintiff alleges several Monell claims including that Defendant

Brown, sued in his official and individual capacities, and Defendant City violated

Plaintiff’s First, Fourth and Fourteenth Amendment rights by issuing a week long curfew

order restricting public protest demonstrations between 8:00 p.m. and 5:00 a.m., Compl.

¶¶ 93, 173, in regard to Defendant City’s policy and practice which authorized the use

and concealment of unlawful excessive force to enforce the curfew, Compl. ¶¶ 124-125,

and retaliation by the City against Plaintiff and its failure to train City police officers when

interacting with citizens in the exercise of First Amendment rights, Compl. ¶ 160.

Plaintiff further alleges municipal liability against Defendant City based on an assault

against Plaintiff by Defendant Police Officers McCabe and Torgalski as members of the

City Police Department’s Emergency Response Team which was directed by Defendant

Gramaglia to clear Niagara Square of protesters after 8:00 p.m. on June 4, 2020,

1 A corrected memorandum of law was filed July 20, 2022 (Dkt. 44).

pursuant to Defendant City’s policy and practice, which action resulted in Plaintiff’s

serious head injury. Compl. ¶ 180. Plaintiff’s claims of selective enforcement and

failure to intervene are not directed to Defendant City. See Compl. ¶¶ 197, 205.

In seeking discovery of those claims, Plaintiff has served several document

production requests for the period 2010 to present, i.e., a 12-year period (Plaintiff

initially sought documents for the period 2000 to present), Dkt. 39-1 ¶ 6, including

Requests Nos. 10, 25-47, 50 and 52 in Plaintiff’s Amended First Request for Production

served April 27, 2021, which seek documents relating to the curfew, the use of force by

Buffalo Police Department (“BPD”) officers particularly involving persons exercising First

Amendment rights, and all records relating thereto, BPD polices and record keeping

practices, records relating to the filing of civilian complaints against BPD police officers

and the respective outcomes, records relating to the training of BPD officers, including

the Community Emergency Response Team (“CERT”), use of force, riot and crowd

control in dealing with citizens’ First Amendment activities, records concerning the

CERT, activities of the BPD’s Internal Affairs Division, BPD arrest data including for any

prior curfew violations, PBD disciplinary records, information regarding the City

Commission on Police Reform and BPD’s suspension policy for police officers. Since

Plaintiff’s prior motion to compel, Dkt. 27, dismissed by the undersigned’s Decision and

Order, dated November 10, 2021 (Dkt. 34), 2021 WL 5239901 (W.D.N.Y. Nov. 10,

2021), Defendants have made multiple productions, Dkt. 39-1 ¶ 3, referencing Exh. A

(Dkt. 39-2) reflecting Plaintiff has served four additional requests to which Defendants

have attempted to respond, however, Plaintiff has also served additional document

production requests including, most recently, Plaintiff’s Sixth Request (Dkt. 39-1 ¶ 4)

served on Defendants in late May 2022. Dkt. 39-1 ¶ 3. In addition, Plaintiff seeks

information concerning more than 500 excessive force complaints arising over the past

12 years, Dkt. 39-1 ¶ 7, which according to Defendants, relate primarily to Plaintiff’s

Monell claims, Dkt. 39-1 ¶ 8. Defendants, in response, agreed to limited production

related to excessive force claims from 2010 to present. Dkt. 39-1 ¶ 7. In sum,

Defendants’ motion is limited to Requests Nos. 10, 25-47, 50 and 52, described in

Plaintiff’s Amended First Request for Production. See Dkt. 45-5 at 7. Defendants

therefore assert that bifurcation will facilitate prompt completion of discovery relating to

the issue prerequisite to any potential Monell liability against Defendant City, i.e.,

whether any Defendant violated Plaintiff’s constitutional rights as alleged by Plaintiff.

See Coleman v. County of Suffolk, 685 Fed.Appx. 69, 72 (2d Cir. 2017) (“Where, as

here, the conduct of individual defendant officers does not violate the plaintiff’s

constitutional rights, the municipality is generally not liable for a policy or practice

pursuant to which the conduct was performed.”); Curley v. Village of Suffern, 268 F.3d

65, 71 (2d Cir. 2001) (constitutional injury to plaintiff is prerequisite to Monell claims).

In opposition, Plaintiff contends that Plaintiff’s Monell document requests are not

excessively burdensome, see Dkt. 44 at 11, and that the parties were working toward a

resolution of all outstanding issues relating to Defendant’s production. See Dkt. 44 at 6

(referencing several meet and confers and Plaintiff’s involvement with outside experts in

order to understand Defendants’ information retrieval system and to facilitate

Defendants’ production). Plaintiff further contends that Monell liability may be imposed

where the actions complained of are not “solely attributable to the actions of named

individual defendants”). Dkt. 44 at 9 (quoting Barrett v. Orange County Human Rights

Comm., 194 F.3d 341, 349 (2d Cir. 1999), and that Defendants’ assertion of qualified

immunity does not bar Monell liability. Id. at 10-11. Finally, Plaintiff argues the cases

relied on by Defendants involved “simpler Monell claims that were derivative of

individual liability . . . rather than being sought directly on the basis of the

unconstitutional nature of the City’s police itself.” Dkt. 44 at 11.

However, Defendants demonstrate Plaintiff’s Monell requests as stated in

Plaintiff’s Amended First Request will nevertheless require extensive searching and

retrieval effort. See Dkt. 45-5 at 2. (“Plaintiff’s requests seek “voluminous materials”).

Further, that qualified immunity may relieve individual Defendants from liability, does not

negate those actions by a state actor are nevertheless prerequisite to any Monell claim.

See Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) (“[T]he entitlement of the

individual municipal actors to qualified immunity because at the time of their actions

there was no clear law or precedent warning them that their conduct would violate

federal law is also irrelevant to the liability of the municipality.”); Curley, 268 F.3d at 71

(individual state action required to sustain Monell claim). Finally, Plaintiff’s assertion

that the City’s potential Monell liability may be based solely upon the City’s own

unconstitutional police and practices is also without merit. See Curley, 268 F.3d at 71.

Plaintiff cites to no authority to support such proposition and the court’s research fails to

reveal any. Plaintiff’s contention appears to be predicated on the theory that Monell

liability may proceed where other than the named Defendants are responsible for §

1983 plaintiff’s constitutional injury. See Askins, 727 F.3d at 253. In Askins the Second

Circuit held that an actual individual constitutional tortfeasor need not be named in order

to find Monell liability against a municipal defendant, such as where a settlement, or a

statute of limitations bar existed, yet the court’s holding made clear that any Monell

claim, notwithstanding such bars to individual § 1983 liability, nevertheless requires a

constitutional violation by the individual defendant for Monell liability to attach. “It

suffices to plead and prove against the municipality that municipal actors committed the

tort against the plaintiff and that the tort resulted from a policy or custom of the

[defendant] municipality.” Askins, 727 F.3d at 253 (underlining added).

As a general matter, courts in the Second Circuit favor bifurcation of Monell

discovery until at least a plaintiff has survived summary judgment on the underlying

issues of any individual state actor in fact violated plaintiff’s constitutional rights. See

Dixon v. City of Buffalo, No. 19-CV-1678WMS(JJM), Dkt. 73 at 9 (W.D.N.Y. Mar. 8,

2022) (slip opinion); Gavin, 2021 WL 3774113, at *5; Oliver v. City of New York, 540

F.Supp.3d 434, 435 (S.D.N.Y. 2021). Such holdings are based on the court’s exercise

of its broad discretion to stay discovery pursuant to Rule 26(c) and Fed.R.Civ.P. 26(d)

which grants the court authority to control the sequence and timing of discovery. Oliver,

540 F.Supp.3d at 435. Here, Defendants persuasively assert discovery will be more

judiciously concluded on the underlying issue of Defendants’ individual liability, including

that of Defendant Brown based on Brown’s alleged unconstitutional curfew, thereby

positioning the parties to proceed with summary judgment practice. In turn, should

Plaintiff prevail on summary judgment, discovery may proceed on Plaintiff’s Monell

claims against Defendant City without serious risk of loss of evidence as the documents

and other records sought by Plaintiff’s Amended First Request for Production are likely

to remain available for such purpose.

Nor is there any merit to Plaintiff’s complaint that Plaintiff was unfairly surprised

by Defendants’ instant motion. See Dkt. 44 at 7 (“Defendants now spring this motion on

Plaintiff”). Although some forewarning to Plaintiff would have been desirable, given

Plaintiff’ insistence on Defendants’ full compliance with Plaintiff’s Monell related

document production demands, see Dkt. 45 at ¶ 28, it is reasonably clear to the court

that such forewarning would not have avoided the need for Defendants’ motion.

CONCLUSION

Based on the foregoing, Defendants’ motion (Dkt. 39) is GRANTED.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: October 6th, 2022

Buffalo, New York