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Bradley v. Town of Cheektowaga

July 15, 2009

CALVIN L. BRADLEY, PLAINTIFF,
v.
TOWN OF CHEEKTOWAGA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1)(A), for all pretrial matters, and for hearing and disposition of all non-dispositive motions or applications. Dkt. #7.

Currently before the Court is plaintiff's motion to compel a response to plaintiff's Notice to Produce dated July 31, 2008 and to compel production of certain documents. Dkt. #16. The underlying action claims that Town of Cheektowaga police officers used excessive force and violated plaintiff's civil rights. Dkt. ##16-2 and 16-3. For the following reasons, plaintiff's motion to compel is granted in part and denied in part.

Plaintiff commenced this action in New York State Supreme Court, Erie County on or about December 28, 2007. Dkt. ##16-2 and 16-3. Plaintiff's claims arise out of an incident that took place on or about February 12, 2007 resulting in plaintiff's arrest, a fractured rib and fractured right shoulder. Specifically, plaintiff's complaint alleges that defendants Smith, Leising, Murcin, Kusak and Grant each "did willfully, maliciously and intentionally assault and strike, without provocation, the plaintiff, Calvin L. Bradley." Dkt. #16-3, ¶¶ 9-13. Plaintiff further alleges that defendants Town of Cheektowaga and Town of Cheektowaga Police Department are liable for the actions of the individual defendants based on the theory of respondeat superior. Id. at ¶ 14. In addition to plaintiff's claims that defendants used excessive force and in so doing violated his civil rights, plaintiff further alleges that his injuries were caused by the "negligence, carelessness, recklessness and unlawful conduct" of the defendants. Id. at ¶ 24. Finally, plaintiff claims that defendants Town of Cheektowaga, Town of Cheektowaga Police Department failed to adequately train, supervise and control the individual defendants and furthermore, failed to take action and/or terminate officers who have a "propensity to violate rules and regulations." Id. at ¶¶ 27-29. Thereafter, on or about January 23, 2008, defendants removed the action to the United States District Court, Western District of New York. Dkt. #1. Defendants filed their answer on January 25, 2008. Dkt. #2.

On July 31, 2008, plaintiff served a "Notice to Produce" seeking the production of eight categories of documents and things. Dkt. #16-5. Specifically, plaintiff's Notice to Produce sought:

1. Supporting Deposition of the arresting officers concerning the incident involving plaintiff on February 12, 2007.

2. Any and all Photographs of the plaintiff including mug shots taken in connection with the incident on February 12, 2007, or at any other time.

3. All Dispatch Communications for February 11, 2007, 10:00 p.m. to February 12, 2007, 1:00 a.m.

4. All records of injuries sustained by arrestees during the course of an arrest by the Town of Cheektowaga Police for the time period February 12, 2006 to February 12, 2007.

5. All Documents reflecting written or oral complaints by or on behalf of persons arrested by the Town of Cheektowaga Police for the period of time February 12, 2006 to February 12, 2007.

6. All Policies, Procedures and/or Protocols of the Cheektowaga Police Department concerning reasonable suspicion and probable cause to detain and arrest individuals; the use of force, the use of pepper spray and/or weapons to subdue an arrestee; and notification of rights to arrestee.

7. Town of Cheektowaga Police Car Surveillance Video or Photographs for February 12, 2007 for the police vehicle that responded to the scene of the subject incident involving the plaintiff.

8. The Crack Pipe alleged by the police as having been thrown by the plaintiff during the arrest.

Dkt. #16-5. By letter dated September 3, 2008, counsel for defendants sent counsel for plaintiff a ...


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