Opinion
21-CV-3811-PKC-SJB
2022-07-05
Daniel PRESTI and Louis Gelormino, Plaintiffs, v. CITY OF NEW YORK, Bill de Blasio, in his official capacity, Office of the Sheriff of the City of New York, Sheriff Joseph Fucito, individually and in his official capacity, Sergeant Kenneth Matos, individually and in his official capacity, Sergeant Richard LeBlond, individually and in his official capacity, Sergeant Furney Canteen, individually and in his official capacity, Deputy Sheriff Matt Anselme, individually and in his official capacity, and Deputy Sheriff Rueshiem Jones, individually and in his official capacity, Defendants.
Matthew William Schmidt, John G. Balestriere, Balestriere Fariello, New York, NY, for Plaintiffs. Joseph Pepe, New York City Law Department, New York, NY, for Defendants City of New York, Bill de Blasio, Office of the Sheriff of the City of New York, Sheriff Joseph Fucito, Sergeant Kenneth Matos, Sergeant Richard LeBlond, Sergeant Furney Canteen, Deputy Sheriff Matt Anselme, Deputy Sheriff Rueshiem Jones.
Matthew William Schmidt, John G. Balestriere, Balestriere Fariello, New York, NY, for Plaintiffs.
Joseph Pepe, New York City Law Department, New York, NY, for Defendants City of New York, Bill de Blasio, Office of the Sheriff of the City of New York, Sheriff Joseph Fucito, Sergeant Kenneth Matos, Sergeant Richard LeBlond, Sergeant Furney Canteen, Deputy Sheriff Matt Anselme, Deputy Sheriff Rueshiem Jones.
ORDER
BULSARA, United States Magistrate Judge: Defendants seek a protective order precluding the deposition of defendant former Mayor Bill de Blasio ("de Blasio"). (Letter dated June 16, 2022, Dkt. No. 28). The motion is granted.
Plaintiffs allege that on December 1, 2020 police officers and sheriff deputies violated their civil rights at a restaurant on Staten Island. (First Am. Compl. dated Dec. 24, 2021 ("Am. Compl."), Dkt. No. 20 ¶¶ 30–44). Plaintiff Daniel Presti ("Presti") is a manager of the restaurant and plaintiff Louis Gelormino is his lawyer. (Id. ¶ 1). They allege that for two days, police officers blocked entry to the restaurant as part of an effort to enforce COVID-19 restrictions. (Id. ¶ 45). Presti alleges that he was then subjected to violent attacks at the hands of police officers who were in disguise and filed false and trumped-up criminal charges. (Id. ¶¶ 30–69). The federal claims in the case are for false arrest and excessive force, and on the basis of these violations Plaintiffs seek to impose Monell municipal liability on the City of New York.
The Amended Complaint alleges that de Blasio authorized the New York City Sheriff's Office to enforce public health restrictions and that the delegation led to the aforementioned civil rights violations. (Id. ¶ 25). Besides mentioning that he is being sued in his official capacity, (id. ¶ 17), there is only one other paragraph in the pleading that mentions de Blasio, which alleges that following the delegation to the Sheriff's Office, "there have been numerous complaints about the tactics the Sheriff's Office employs, including violent arrests, disorderly shutdowns, and issuing summons on a discriminatory basis." (Am. Compl. ¶ 29). This paragraph does not, however, allege that de Blasio knew about such complaints.
As a threshold matter, the fact that de Blasio is a named defendant in the case does not entitle Plaintiffs to his deposition. Although he is a defendant—and a plaintiff is almost always entitled to depose an adverse party—the suit is against him in his official, not personal, capacity.
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.
Kentucky v. Graham , 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal quotations and citations omitted). By naming the City of New York as a defendant, having de Blasio as a defendant is superfluous, and at the appropriate stage, he is entitled to dismissal from the case. Humphrey v. Cnty. of Nassau , No. 06-CV-3682, 2009 WL 875534, at *1 n.1 (E.D.N.Y. Mar. 30, 2009) ("[T]he Section 1983 claim against the individual defendants in their official capacities do not survive summary judgment.").
As such, to obtain de Blasio's deposition, Plaintiffs must demonstrate that he has some discoverable facts within his possession or knowledge. And because de Blasio is a former high-ranking official—the former Mayor of New York City—the burden on Plaintiffs is more searching. "[T]o depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition—for example, that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means." Lederman v. New York City Dep't of Parks & Recreation , 731 F.3d 199, 203 (2d Cir. 2013). "[T]his limitation is not absolute. Depositions of high ranking officials may be permitted where the official has first-hand knowledge related to the claim being litigated." Bogan v. City of Boston , 489 F.3d 417, 423 (1st Cir. 2007) ; e.g. , United States v. City of New York , No. 07-CV-2067, 2009 WL 2423307, at *3 (E.D.N.Y. Aug. 5, 2009) ("The Mayor's sworn testimony before Congress indicates his personal involvement in the events at issue in this litigation and raises the question of the basis for the Mayor's belief that the challenged examinations were job related."). The doctrine applies to both former and current high-ranking officials. See Lederman , 731 F.3d at 203 (applying test to former deputy mayor); In re Terrorist Attacks on Sept. 11, 2001 , No. 03-MDL-1570, 2020 WL 8611024, at *12 (S.D.N.Y. Aug. 27, 2020), objections overruled , 2021 WL 2227204, at *2 (S.D.N.Y. June 2, 2021) ; cf. In re U.S. Dep't of Educ. , 25 F.4th 692, 705 (9th Cir. 2022) ("The time constraint concerns discussed above similarly continue to apply. The threat of having to spend their personal time and resources preparing for and sitting for depositions could hamper and distract officials from their duties while in office. If allowed the minute cabinet secretaries leave office, overwhelming and unnecessary discovery could also discourage them from taking that office in the first place or leaving office when there is controversy."). And "[t]he party seeking to take the depositions in question bears the burden of demonstrating exceptional circumstances." Morales v. City of New York , No. 18-CV-1573, 2019 WL 6213059, at *6 (S.D.N.Y. Nov. 21, 2019).
Under Rule 26(c), a "party ... may move for a protective order ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ... forbidding the disclosure or discovery." Fed. R. Civ. P. 26(c)(1).
Plaintiffs cite to Sanstrom v. Rosa and contend that former officials cannot seek protection under this doctrine. To be sure, the court there said unequivocally that former Governor Cuomo "cannot claim this privilege." No. 93 Civ. 7146, 1996 WL 469589, at *5 (S.D.N.Y. Aug. 16, 1996). But the decision appears to be at odds with governing circuit law—such as Lederman , which applied the test to a former deputy mayor—and the trend of district courts to apply Lederman to former officials. It may be that the risk of interference with former officials’ job responsibilities is less pronounced once they are out office, but even under a slightly more relaxed standard, Plaintiffs do not prevail, since—as discussed below—they fail to point to a single fact establishing any knowledge by de Blasio, and exaggerate the record to try to tie him to these Plaintiffs.
The attempt to depose de Blasio fails at the first stage—that is, Plaintiffs cannot establish first-hand knowledge, let alone "unique" knowledge. Plaintiffs make a series of assertions about de Blasio's knowledge and involvement in the specific events at issue. In support, they attach pages of a deposition testimony (without providing any line or page citations) that allegedly support taking de Blasio's deposition. The assertions do not stand up to scrutiny.
Plaintiffs say that de Blasio "appears to have had law enforcement officers directly target at least one Plaintiff, Presti," and that he "was directly involved in the events that gave rise to Plaintiffs’ claims." (Opp'n dated June 20, 2022 ("Opp'n"), Dkt. No. 29 at 1). No deposition testimony—at least nothing provided to the Court—suggests that that de Blasio directly targeted Presti. There is one portion of the deposition testimony that refers to a 30-second phone call between Sheriff Joseph Fucito ("Fucito") and de Blasio, where de Blasio told Fucito to "enforce the vacate order," with police assistance. (Dep. of Joseph Fucito dated May 17, 2022, attached as Ex. A to Opp'n at 124:24-125:6). Though it goes unexplained, presumably the vacate order refers to COVID-19-related orders that precipitated the events on December 1, 2022 and thereafter. But alleging that de Blasio gave instructions to enforce an order does not demonstrate that de Blasio "targeted" Presti or had any involvement or knowledge of his arrest, detention, or the excessive force that he alleges occurred. And the testimony appears to be about the "vacate order" generally (i.e. , citywide), not about any particular location or Presti's restaurant. Despite the extensive discovery in the case to date, there is nothing in this record that suggests the personal involvement of de Blasio in the events involving these Plaintiffs. Cf. Universal Calvary Church v. City of New York , No. 96 CIV.4606, 1999 WL 350852, at *4 (S.D.N.Y. June 2, 1999) ("Plaintiffs had full opportunity to determine from Deputy Commissioner Maple whether Mayor Giuliani gave any orders or what order, if any, the police officers on the scene received following his call. They also took extensive depositions from other command officers on the scene and had the opportunity to go into the question of whether the Mayor gave orders or supervised the officers during the incident. Despite this opportunity, they have not presented any evidence that the Mayor gave orders or supervised police officers during the incident.").
Plaintiffs’ letter also argues that "[t]he evidence points to Mayor de Blasio ... misusing the Sheriff's Office to advance his own political goals, with the result that Plaintiffs ... were wrongly arrested, and one, Presti, made the victim of serious law enforcement misconduct." See Opp'n at 2. No evidence is actually cited or provided to the Court to support this assertion.
Plaintiffs then argue that the former Mayor created the policy that is the basis of their Monell claim. This argument does not provide an entitlement to a deposition of de Blasio. Plaintiffs allege in the Amended Complaint that de Blasio delegated typical NYPD enforcement powers to the Sheriff's Office. (Am. Compl. ¶ 25). And in their brief, Plaintiffs argue that a deposition is necessary to demonstrate that de Blasio "knew of or authorized repeated allegations of police misconduct and tacitly approved these tactics." (Opp'n at 4).
But this is pure conjecture. There is no deposition testimony or document proffered to show that that de Blasio personally had some knowledge of such incidents (or even the incidents here). Even the Amended Complaint merely alleges that there were complaints, but not that de Blasio knew about them. (Am. Compl. ¶ 29). Though Plaintiffs may object that they cannot know what de Blasio knows without asking him directly, that ignores the existence of the other discovery devices (including interrogatories and document requests directed at him and depositions of other officials) that would permit them to establish such knowledge. Without that factual foundation, the suggestion of de Blasio's personal knowledge is pure conjecture. And because Plaintiffs bear the burden and must show first-hand knowledge, it is their obligation to put forward such proof before the Court can order the deposition.
Similarly, Plaintiffs argue that only de Blasio has the information they seek and Defendants have not demonstrated otherwise. (Opp'n at 4). But that mixes up the burdens, which clearly fall on Plaintiffs, not the other way around. See supra at 3–4; e.g. , Ebbert v. Nassau Cnty. , No. CV 05-5445, 2007 WL 674725, at *6 (E.D.N.Y. Mar. 5, 2007) ("No evidence has been presented thus far to demonstrate that Wall had any direct involvement in the actual preparation or administration of the examinations nor any communications with any representatives of Nassau County about the pay scales at issue. Plaintiffs have not established that there is no alternative source of information and that any knowledge Wall may have regarding the ... pay scales is unique and personal."); Raba v. Suozzi , No. CV 06-1109, 2007 WL 9709827, at *6 (E.D.N.Y. Jan. 25, 2007) ("Plaintiffs have not established to the Court's satisfaction that there is no alternative source of information and that Weitzman's knowledge regarding the decision to terminate the supplements at issue is unique and personal.").
For these reasons, the motion for a protective order is granted as to the deposition of former Mayor de Blasio.
In light of this order, Defendants’ request for leave to file a reply brief is denied.
SO ORDERED.