The opinion of the court was delivered by: Hon. Hugh B. Scott
This is a follow up to an earlier Order issued by this Court. Before the Court is plaintiff's motion to compel (Docket No. 61). This Court entered an Order compelling defendants to produce and to furnish certain items for in camera inspection to determine whether and the manner in which the documents would be produced (Docket No. 65). On or about March 20, 2008, defendants submitted to chambers the in camera items.
Also pending are the Chautauqua County defendants' motion to dismiss the Second Amended Complaint (Docket No. 52) before Judge William Skretny and plaintiff's fee application for her motion to compel (Docket No. 68) before the undersigned. The latter will be decided in a separate Order.
Familiarity with the previous Order (Docket No. 65) is presumed.
In this is a civil rights action, plaintiff alleges false arrest, use of excessive force, and false imprisonment claims against the Village of Fredonia, its police department, police chief Bradley Meyers, John Doe officers of the village police force (collectively "Village defendants"), and malicious prosecution against defendants Chautauqua County and its officers (Docket No. 47, 2d Am. Compl. ¶¶ 6-13). Pertinent to this motion, plaintiff claims that she was falsely arrested on February 4, 2004, that she suffered trespass and excessive force during that arrest (id. ¶ 15), and that she was arrested and Village defendants again trespassed on her property again on February 9, 2004 (id. ¶ 16). She alleges claims for false arrest, excessive force, and false imprisonment from the February 4, 2004, arrest (id. ¶¶ 18-23, 24-29, 30-34). In particular, she claims that she was forcibly removed from her home and not advised of the charge against her (id. ¶¶ 19-20). Then, plaintiff was questioned about her live-in boyfriend (Gary Ortolano, see Docket No. 64, Pl. Atty. Reply Aff. ¶ 8) but not pertaining to any criminal investigation and she claims that she was subjected to humiliating questions about her private life (Docket No. 47, 2d Am. Compl. ¶¶ 21, 22). Plaintiff's claim regarding excessive force stems from the police refusal to allow her to place a neck brace on prior to her arrest (since she suffered from a previous automobile accident) and the substantial physical force applied to her during that arrest (id. ¶¶ 26, 25, 27-28). According to the Village defendants, plaintiff's mother and brother called the Fredonia police on February 4, 2004, and asked that they conduct a "well-being" visit of plaintiff (see Docket No. 63, Village Defs. Atty. Aff. ¶ 8). She alleges that she was arrested and imprisoned falsely again on February 9, 2004 (Docket No. 47, 2d Am. Compl. ¶¶ 35-45).
Plaintiff moved to compel the Village defendants to answer her Interrogatories or submit to depositions (Docket No. 61, Pl. Atty. Aff. ¶ 3, Wherefore cl., Ex. B (Interrogatories and Demand for Documents upon Meyers or policy maker for Village of Fredonia). As follow up to the deposition of Fredonia police sergeant Paul Luce and defendant police chief Meyers on April 6, 2006, plaintiff sought production of several categories of documents (Docket No. 61, ¶ 4, Ex. A). Plaintiff, in October 2006, served Interrogatories with document demands upon Meyers and the Village for response either by Meyers or by the policy maker for the Village (id. ¶ 5, Ex. B). Plaintiff wrote in November 2006 and December 2007 requesting responses to these demands (id. ¶¶ 6-7, Exs. C, D). Plaintiff then called defense counsel's office, on or about January 30, 2008, noting that a motion to compel is being prepared unless these requests were responded to and, to date, no production was made by the Village's defense counsel (id. ¶ 8). Plaintiff submitted her Interrogatories in lieu of deposing Meyers a second time as the policy maker (see id. ¶ 25, Ex. H). Plaintiff also sought an extension of time to complete discovery.
The Village defendants responded and raised various areas where they sought Court input on how they should respond to plaintiff's demands, in particular requesting to submit some items for in camera review to determine whether they should be produced (Docket No. 63).
This Court ordered the Village defendants to produce for in camera inspection the investigation file for Gary Ortolano (Docket No. 65, Order at 7-8, 9-10, 13), and they were to produce the in camera items within ten days of entry of that Order (id. at 11, 13). The Village defendants also were to produce forthwith copies of the village police department's General Orders in effect on February 4, 2004; redacted copy of Sergeant Luce's personnel file, correspondence between Luce and plaintiff's mother and brother, police department training file and police chief Meyers' personnel file (id. at 7, 8-9, 10). The Court also granted an extension of the Scheduling Order for this case (id. at 11-12, 13; Docket Nos. 66, 67) and scheduled plaintiff to submit her reasonable motion costs as a sanction (Docket No. 65, Order at 12-13, 14; see Docket No. 68).
The Village defendants then provided to the Court a copy of the Fredonia police department's file on Gary Ortolano. The file consists of charges Ortolano incurred within the village of Fredonia and did not include charges in other jurisdictions. The documents include the names of alleged victims and their addresses. The first document is a Global Subject Activity Report for Ortolano, listing his arrests by the Fredonia police department from December 1991 to January 2007. They also provided dozens of case reports involving Ortolano, which identify the reporting police office as well as the facts leading to Ortolano's arrest. The Village defendants included an Aegis ...