# Gugino v. City of Buffalo

> District Court, W.D. New York · October 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10365398

## Case

- **Court:** District Court, W.D. New York
- **Decided:** October 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365398. Public record. Not legal advice.