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Deptula v. City of Worcester

United States District Court, D. Massachusetts

July 19, 2018

LUKE DEPTULA, Plaintiff,
v.
CITY OF WORCESTER, JEFFREY CARLSON, JAMES E. BATES, KELLEN E. SMITH, SGT. MATTHEW EARLY, DANA RANDALL, LARRY WILLIAMS, and GARY GEMME, Defendants.

          ORDER

          David H. Hennessy U.S. Magistrate Judge

         Plaintiff 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.[1] 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. 658 (1978).

         District 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.

         For the 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.

         I. BACKGROUND

         Plaintiff's 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. ¶ 23.

         Defendant 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.

         At some 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.

         According 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. ¶ 75.[2]

         Plaintiff 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.[3] 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.” Id.

         Through 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.

         Lastly, 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.

         II. LAW

         The 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 ยง 2001, at 13). Federal Rule of ...


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