United States District Court, D. Massachusetts
H. Hennessy U.S. Magistrate Judge
Luke Deptula filed this civil rights lawsuit against
Defendants the City of Worcester (“the City”),
Worcester Police Department (“WPD”) officers
Jeffrey Carlson, James Bates, Kellen Smith, and Matthew
Early, and former WPD Chief Gary Gemme. Plaintiff alleges
that Defendants Carlson, Bates, Smith, and Early used
excessive force against him or failed to intervene to prevent
the use of excessive force against him during an incident on
March 31, 2014. Plaintiff also has asserted claims against
the City, Defendant Early, and Defendant Gemme for
supervisory liability and municipal liability under
Monell v. Department of Social Services, 436 U.S.
Judge Hillman referred to me for a ruling Plaintiff's
motion to compel Defendant Smith to answer certain deposition
questions. Docket #43; see docket #46 (order of
reference). Defendants oppose the motion. See docket
#50. The parties argued the motion at a hearing held July 17,
2018. At that hearing, Defendants proffered ex parte
information relating to Smith's reasons for refusing to
answer the deposition questions in dispute.
following reasons, Plaintiff's motion to compel is
GRANTED IN PART AND DENIED IN PART. I will permit Plaintiff
to reopen Smith's deposition to ask specific, limited
questions as set forth below.
complaint, docket #1-1, alleges as follows. On March 31,
2014, Defendants Carlson, Bates, Smith, and Early were
following Plaintiff in undercover vehicles, waiting for a
court to issue a search warrant for Plaintiff's apartment
and car. Id. ¶¶ 21-22. Those defendants
followed Plaintiff to a mechanic's shop. Id.
¶ 22. Once Plaintiff arrived there, Smith ordered the
other officers to stop and search Plaintiff and to detain him
while the officers waited for the warrant. Id.
Bates approached Plaintiff, grabbed him by the throat, and
forced him onto the hood of Plaintiff's car. Id
¶ 26. Officers handcuffed Plaintiff and searched him and
the car, but did not find any contraband. Id. ¶
28. Bates surmised that no contraband was found
“because [Plaintiff] ate something.” Id.
¶ 30. Carlson said, “You ate them all you fucking
pussy?” and punched Plaintiff twice in the head.
Id. ¶ 31. Plaintiff staggered and yelled,
“Did he just hit me?” Id. ¶ 33.
After Bates helped Plaintiff up, Carlson punched Plaintiff in
the head two more times. Id. ¶ 34. Williams,
Bates, and Early were present throughout and failed to
intervene. Id. ¶ 38.
point, Smith placed Plaintiff in a car and drove to
Plaintiff's apartment. Id. ¶ 40. Plaintiff
leaned over in pain while inside the car. Id. ¶
41. Smith asked why Plaintiff was leaning over, and Plaintiff
said he had been punched. Id. In response, Smith
menaced Plaintiff with a closed fist and yelled, “Good,
do you want me to punch you now?” Id. ¶
41. The officers then held Plaintiff at his apartment without
medical care while they searched the apartment. Id.
¶ 44. Plaintiff later was taken to the police station
for booking and again was not offered medical care.
Id. ¶ 45.
to the complaint, Defendants prepared police reports falsely
claiming that Plaintiff “place[d] multiple, small light
colored items into his mouth” believed to be illegal
narcotics. Id. ¶ 71. The reports also falsely
stated that Carlson slapped Plaintiff twice with an open hand
“in an effort to dislodge the evidence” from
Plaintiff's mouth. Id. ¶ 72. The reports
said Plaintiff “was chewing and swallowing pills
causing a white chalky substance to be visible on his lips
and tongue.” Id. The reports further stated
that the officers offered Plaintiff medical attention, but
Plaintiff declined. See id. ¶¶ 69-74.
Smith's report allegedly stated falsely that officers
ordered Plaintiff to exit his car before arresting him, and
that Plaintiff told the officers he was uninjured and was
offered, but declined, medical care. Id. ¶
deposed Smith on May 1, 2018. See docket #45-6
(excerpted deposition transcript). Smith testified that he
was in the process of retiring from the WPD and that his
retirement was pending before the Worcester city retirement
board. See id. at 1-2. When asked why he was retiring,
Smith refused to say, citing privileges under HIPAA, “a
privacy right[, ] and other privileges.” Id.
at 2. Later, Plaintiff asked two questions relating to
Smith's memory. First, Plaintiff asked, “Is there
anything about a medical or a mental condition that prevents
your ability to remember certain facts that may be pertinent
to the questions that I ask you today?” Id. at
3. Second, Plaintiff asked, “Are you taking any type of
medication that would affect your ability to remember things
short term or long term?” Id. Smith replied
that his answers to both questions are “protected by
HIPAA.” Id. Finally, Plaintiff asked several
questions about a separate incident that gave rise to another
lawsuit filed against Smith. Id. at 3-4. Smith
testified that he could not recall certain details pertaining
to that case. Id. Plaintiff asked, “And does
that have to do-is your memory affected because of the
medical condition for which you seek protection under HIPAA?
Does it have to do with anything of that [sic]?”
Id. Smith replied, “It may.”
the instant motion, Plaintiff seeks an order compelling Smith
to answer the questions quoted above. Defendants made an
ex parte proffer at the motion hearing respecting
the reasons for Smith's retirement from the WPD. After
the proffer, I deemed it appropriate to state in open court
that Smith was diagnosed with a condition after an incident
on May 5, 2015 that caused Smith to seek professional care. I
then took Plaintiff's motion under advisement.
I note that Judge Hillman has entered a protective order in
this case. Docket #32. The order applies to, among other
things, “portions of deposition testimony concerning
the contents of [certain] documents and . . . confidential
information.” Id. ¶ 1. Among the
documents protected by Judge Hillman's order are
“documents pertaining to medical and/or psychological
treatment of any City of Worcester employee” and
“records related to [the] personal or financial history
of any City of Worcester employee.” Id. The
protective order provides that Plaintiff cannot use such
documents or confidential information for any purpose other
than litigating the instant case. See id. ¶ 2.
purpose of discovery is to enable the parties “to
obtain ‘the fullest possible knowledge of the issues
and facts before trial.'” LeBarron v. Haverhill
Coop. Sch. Dist., 127 F.R.D. 38, 40 (D.N.H. 1989)
(quoting 8 Charles Alan Wright & Arthur R. Miller,
FederalPractice and Procedure: Civil
§ 2001, at 13). Federal Rule of ...