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Weiner v. McKeefery

United States District Court, E.D. New York

May 19, 2014

DON A. WEINER, Plaintiff,


JOSEPH F. BIANCO, District Judge.

Don A. Weiner ("plaintiff") commenced this action on May 10, 2011, and the deadline to request a pre-motion conference in anticipation of moving for summary judgment is May 11, 2014. Pending before the Court is plaintiff's appeal of two rulings made by Magistrate Judge Tomlinson during a conference on April 3, 2014, regarding the discovery of an un-redacted 2007 Child Protective Services ("CPS") record and the deposition of Assistant District Attorney ("ADA") Omar Almanzar. (Motion for Leave to Appeal ("Motion"), Docket No. 160.) For the reasons set forth below, the Court affirms Magistrate Judge Tomlinson's April 3, 2014 ruling in its entirety.


Plaintiff alleges that Suffolk County Police Department personnel violated his rights under the Fourth and Fourteenth Amendments when they unlawfully arrested and maliciously prosecuted him and deprived him of contact with his children for over a year. (Complaint ¶¶ 1-2, Docket No. 1.) The events at issue occurred beginning on or about April 2, 2009. ( See id. ¶ 10.) As relevant here, plaintiff maintains that his estranged wife, pro se defendant Maryanne Weiner ("Defendant Weiner") caused a charge of harassment to be commenced against plaintiff. ( Id. ¶¶ 17-18.) According to the complaint, Defendant Weiner's "malicious conduct included persistently urging the County District Attorney to vigorously prosecute plaintiff, including after the County's Child Protective Services agency officially concluded that the charges against plaintiff were [not credible]." ( Id. ¶ 20.)

On April 11, 2013, plaintiff filed a motion to compel the Suffolk County Department of Social Services ("DSS") to comply with a subpoena dated August 5, 2012. (Docket No. 140.) Specifically, plaintiff sought un-redacted copies of records of investigations conducted in 2006, 2007, and 2009, which previously were provided to plaintiff by DSS. Plaintiff believes these records are relevant to his claim for malicious prosecution against his estranged wife. Defendant Weiner opposed on the grounds of relevance, arguing that because she was not the individual who contacted DSS to initiate the complaint against plaintiff, the records are not relevant. (Defendant Weiner Opposition, Docket No. 141.) Assistant County Attorney Brian Mitchell ("Attorney Mitchell"), counsel for the Suffolk County Defendants, submitted no formal opposition. However, he reviewed the records and represented that DSS followed the protocol applied when any file is redacted: "[T]hey redact the names of reporting parties and the names of persons who were a subject of the report other than the plaintiff, or were mentioned in the report but not a subject of the report." (Letter, Docket No. 142.) As relevant here, Attorney Mitchell represented that, based on his review of the 2007 files, Defendant Weiner was not the reporting party on that investigation, which, according to Attorney Mitchell, was ordered by the Family Court. ( Id. ) Consequently, he argued that the 2007 report is unrelated to plaintiff's present claim against Defendant Weiner, and should not be produced in un-redacted form. ( Id. ) Plaintiff countered that he believes Defendant Weiner was in fact the reporting party for the 2007 investigation, because it related to a Family Court proceeding initiated by her. ( See Replies, Docket Nos. 143, 145.) Magistrate Judge Tomlinson subsequently directed Attorney Mitchell to provide an un-redacted copy of the report for an in camera review.

In an order issued March 17, 2014, Magistrate Judge Tomlinson denied the motion to compel with respect to the 2007 report on the grounds that the record was "not relevant to this litigation, " and that "the discovery of [this] record does not appear reasonably calculated to lead to the discovery of admissible evidence." (Motion to Compel Order ("March 17 Order"), Docket No. 150, at 6 (internal quotation marks and citations omitted).) Magistrate Judge Tomlinson reasoned that (1) the investigation in 2007 was ordered by the Family Court, and both Weiners were listed as subjects of the investigation; (2) even assuming that Defendant Wiener initiated the investigation, any malicious prosecution claim based on that investigation is time-barred because plaintiff did not bring a claim within the one-year statute of limitations period-by April 2, 2008; and (3) the complaint in this case references only the incidents which occurred in 2009, and, therefore, the investigation does not relate to the claims giving rise to this litigation. ( Id. at 6-7.)

Notwithstanding Magistrate Judge Tomlinson's ruling, plaintiff reiterated his request for the un-redacted 2007 report during a hearing on April 3, 2014. (Transcript, Docket No. 164, at 12-14.) Counsel for plaintiff argued that the report is relevant bears it bears on Defendant Weiner's modus operandi, and he argued that, based on the caption of the order for investigation that lists Defendant Weiner as petitioner, Defendant Weiner caused the investigation. ( Id. at 12-13.) Magistrate Judge Tomlinson referred plaintiff to the March 17 Order and again denied the request for an un-redacted copy of the 2007 report. ( Id. at 13-14.)

In the March 17 Order, Magistrate Judge Tomlinson also addressed plaintiff's request to depose four ADAs who purportedly had contact with Defendant Weiner in relation to the state court action against plaintiff, including ADA Almanzar. During a hearing with the parties on July 25, 2012, Magistrate Judge Tomlinson had directed Attorney Mitchell to speak with the ADAs and have them review the District Attorney Office's file to look for telephone interactions any one of them may have had with Defendant Weiner from April 2, 2009, through October 15, 2010. ( See Docket No. 93.) Each ADA was directed to provide Magistrate Judge Tomlinson with an affidavit "setting forth the dates of such interactions (even if by voicemail), the time of day if known, and the specific substance of the call/message." ( Id. ) ADA Almanzar produced an affidavit on August 27, 2012. (Affidavit, Docket No. 101-1.) ADA Almanzar stated as follows:

Based upon my review of the file, I interacted with Ms. Weiner by telephone on April 8, 2010, June 22, 2010, and August 23, 2010. I do not know the time of day that these calls took place. I do not recall if the calls were made to me by Ms. Weiner or if I called her. The substance of my conversations with Ms. Weiner related to either advising her of the results of a recent court proceeding or coordinating the scheduling of future court proceedings and whether it would be necessary to have her children appear for court.

( Id. ¶ 3.) Magistrate Judge Tomlinson subsequently directed the Suffolk County Defendants to provide the underlying criminal file to her for an in camera review. ( See Docket No. 110.)

In her March 17 Order, Magistrate Judge Tomlinson declined to authorize a deposition of ADA Almanzar. Magistrate Judge Tomlinson reasoned that, based on these representations, together with the corroborating notes from the criminal file reviewed in camera, "deposing ADA Almanzar will not reasonably lead to discovery of admissible evidence regarding Plaintiff's claims of malicious prosecution against Maryann Weiner (or any other of Plaintiff's claims)." (March 17 Order, at 10.)

During the hearing on April 3, 2013, plaintiff renewed his request to depose ADA Almanzar on the basis of a statement that he would not dismiss the state court case against plaintiff because "he was under pressure from Mrs. Weiner." (Transcript, at 7-8.) Magistrate Judge Tomlinson referred plaintiff to the March 17 Order denying the deposition request. ( Id. at 8.)

Plaintiff now appeals the rulings from the ...

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