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CHRIS CHRISTIE

Governor

State of New Jersey

OFFICE OF THE ATTORNEY GENERAL

DEPARTMENT OF LAW AND PUBLIC SAFETY

DIVISION OF LAW

JEFFREY S. CHIESA

Attorney General

KIM GUADAGNO

Lt. Governor

25 MARKET STREET

 PO BOX 112

TRENTON, NJ 08625-0112

CHRISTOPHER S. PORRINO

Director

October 23, 2012

VIA ELECTRONIC FILING AND OVERNIGHT DELIVERY

Hon. Karen M. Williams, U.S.M.J.

Mitchell H. Cohen Federal Courthouse, Room 2040

1 John F. Gerry Plaza

Camden, New Jersey 08101

RE: Daniel Freid v New Jersey State Police

 Dkt. No. 11-cv-02578 (RMB)

Dear Judge Williams:

 

 LETTER MEMORANDUM

I represent the individual defendants in the above referenced

matter, the organizational defendant, New Jersey state Police,

having been dismissed with prejudice. Presently returnable before

the Court is plaintiff’s motion to compel the deposition of Colonel

Joseph R. Fuentes, Superintendent of the State Police. Plaintiff

claims Colonel Fuentes’ deposition is necessary because he “...is

responsible for the State Police’s lack of applicable policies

regarding diabetes and is responsible for the State Police’s

failure to train the Troopers”. (See Pltf. Brief, pg. 1). 

However, a thorough review of the claims made against the

Colonel, as well as prior rulings of this Court in regard to some

of those claims, makes clear that plaintiff’s assertion is

attenuated at best, and provides no support for compelling the

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deposition of the Superintendent. Accordingly, it is requested that

the Court accept this Letter Memorandum in opposition to

plaintiff’s request to compel the deposition of Superintendent

Joseph R. Fuentes.

 ARGUMENT

 Discovery in federal litigation is guided by the provisions of

Fed.R.Civ.P. 26. Generally, it provides for the obtaining of any

non-privileged matter relevant to a party’s claim or defense.

Fed.R.Civ.P. 26(b)(1). However, it is not without its limits, which

District Courts have been encouraged to enforce. Crawford-El v

Britton, 118 S.Ct. 1584, 1587 (1998). Indeed, the Rule itself notes

that all discovery is subject to the limitations noted in the

provisions of Fed.R.Civ.P. 26(b)(2)©. See, Fed.R.Civ.P. 26(b)(1).

There, the Court is admonished that it must limit discovery where

it is unreasonably cumulative or duplicative or can be obtained

from another source that is more convenient or less burdensome or

where the burden outweighs the likely benefits, considering a

number of enumerated factors. (Emphasis added). Moreover, the Court

is specifically empowered to issue a protective order excluding

disclosure or discovery completely, or limiting it in some other

fashion, where it finds good cause to do so based on considerations

of annoyance, embarrassment, oppression or undue burden or expense.

Fed.R.Civ.P. 26(c)(1)(A-H). 

Here, plaintiff seeks to take the deposition of the

Superintendent of the State Police on the basis that his alleged

failure to have “applicable policies regarding diabetics” directly

caused this incident to occur or led to the injuries allegedly

suffered by the plaintiff. For the following reasons, defendants

will demonstrate the paucity of fact and law supporting this

contention, making such a deposition not only burdensome, annoying

and oppressive, but also futile and simultaneously urge this Court

to deny this request in its entirety. 

1. The Case(s) Cited by Plaintiff do not Support this Request 

Plaintiff relies on the matter of Nyfield v Virgin Islands

Tel. Corp., 202 F.R.D. 192, 194 (D.V.I. 2001) aff’d sub nom.

Nyfield v Virgin Islands Tel. Corp., CIV. 1999-202, 2002 WL 169321

(D.V.I. Jan.. 29, 2002) to convince this Court that Colonel Fuentes

deposition should be ordered. That case dealt with employment

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matters where the plaintiff was allegedly illegally transferred and

effectively terminated and that the corporate principal, as a named

defendant, was personally involved in and approved the transfer

which eventually led to the termination. The corporate principal

moved for a protective order prohibiting or delaying the deposition

and/or limiting its scope. The Court denied the motion. However,

the Court’s denial of the defendant’s request for a protective

order was decided for reasons not applicable here. 

First, the Nyfield court noted that the defendant, Jeffrey

Prosser, had never moved for dismissal of the claims against him in

that suit. Such is not the case here. Plaintiff’s original

complaint (PACER DOC. No. 1) named only the State Police as a

defendant. Thereafter, a Motion to Dismiss, pursuant to Eleventh

Amendment immunity, was filed by this office. (PACER DOC. No. 9).

Plaintiff then filed an Amended Complaint in which Colonel Fuentes

was named in his official and “personal” capacity. (PACER DOC. No.

10). In order to avoid further motion practice on the Eleventh

Amendment and 42 USC §1983 as it would apply to the Colonel in his

official capacity and as a “person” under that statute, the Court

directed the plaintiff and these defendants to reach an

accommodation concerning that issue that would otherwise be

inevitable. Accordingly, pursuant to a CONSENT ORDER OF DISMISSAL,

the State Police were dismissed, with prejudice, and Colonel

Fuentes, along with troopers Teztlaff, Oliver and Brown, were

dismissed, without prejudice, regarding claims made in their

official capacities. (PACER DOC. No. 27).

Next, exhibits attached to the plaintiff’s opposition to the

motion for the protective order demonstrated that Prosser would

have had to personally approve the transfer and that he exercised

“hands on control” of employment matters within the conglomerate.

Here, plaintiff provides only the Amended Complaint which, at best,

contains conclusory statements about the Colonel’s connection to

this case and that, only in vague references to, “policy, practice,

customs and/or procedure...”. Indeed, in those Counts of the

Amended Complaint in which Colonel Fuentes is referenced, Counts IV

and V, there is a plethora of reference to matters addressing use

of force, fitness to serve as police officers, discipline,

completing internal investigations and evaluating officer’s

performance, but not a single reference to, or the employment of

the word “diabetes” in connection with the Colonel or his duties.

Moreover, although plaintiff has named Colonel Fuentes in his

“personal capacity” in the caption of the Amended Complaint, and

sues him in his “individual capacity” (Am. Comp., pg. 3, ¶11),

nowhere does plaintiff factually or actually personally connect the

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Colonel to any of the incidents or occurrences giving rise to this

matter. (Am. Comp., “FACTS”, ¶¶21 to 59). Thus there is no

“personal” basis upon which to demand this deposition as there was

in Nyfield. 

Third, it is clear from plaintiff’s own Amended Complaint that

Colonel Fuentes had no personal involvement in any of the actions

involving the plaintiff, the incident, his arrest or his alleged

injuries. Even the assertion that the Colonel is personally

responsible for the “lack of applicable policies regarding

diabetes”, is nothing more than an assumption on plaintiff’s part

based on a self serving conclusion. Unlike the plaintiff in

Nyfield, who provided the Court with specific evidence supporting

that defendant’s personal involvement in transfer issues and

employment decisions, plaintiff here has supported his motion with

only generalities, assumptions and conclusions. Since plaintiff

presents no factual support for this motion, and, in fact, supports

the Colonel’s lack of personal involvement in his pleading,

averment is neither necessary nor warranted. Moreover, the

defendant in Nyfield was affirmatively seeking a protective order

and thus, his burden was more substantial. 

Finally, at issue in Nyfield was the specific motivation

leading up to and generating the alleged illegal transfer and

termination which was the basis for the lawsuit. Here, plaintiff’s

diabetes was, at best, an ancillary factor in plaintiff’s arrest

and charge of violation of N.J.S.A. 2C:33-2 (failing to comply with

a lawful order) and N.J.S.A. 2C:29-2 (resisting arrest). Absent

that behavior, no charges would have ever been filed. Moreover, on

December 7, 2010, in the Municipal Court of Woodland Township,

plaintiff stipulated to probable cause for the issuance of those

complaints in exchange for a dismissal of the charges. (See Ex. A,

transcript of municipal hearing). Plaintiff’s acknowledgment that

his behavior warranted the issuance of the citations focuses this

matter on the precipitating causes, plaintiff’s unlawful behavior.

2. Colonel Fuentes’ Testimony about “applicable policies regarding

diabetes” is both Unnecessary and Irrelevant Because Plaintiff was

Asked These Questions at the Time and Denied Being a Diabetic and

Because Plaintiff has Failed to Show that, Other than this

Incident, a Same or Similar Incident has Occurred

Trooper Brown was the first State Police officer to encounter

plaintiff on the night of the incident. He came upon plaintiff on

State Highway 72 in the vicinity of milepost 4. Trooper Brown asked

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plaintiff if he was okay but plaintiff did not respond. Brown

inquired again and plaintiff replied, “What do you want”? Because

of plaintiff’s condition, Brown inquired if plaintiff was having a

medical complication and wanted EMS dispatched to the scene.

Plaintiff responded, “No”! After getting plaintiff out of his

vehicle, Brown continued to inquire about plaintiff’s condition but

plaintiff refused to respond. Brown then asked if plaintiff was a

diabetic to which plaintiff responded, “Yes, you didn’t know that”?

Brown then asked plaintiff if he took insulin and plaintiff

responded, “Yes. No. I don’t have diabetes, I told you that.” (See

Ex. B, Brown’s Answers to Interrogatories). 

Plaintiff does not dispute this exchange as he admits he has

no recollection of the events of that day beginning shortly after

leaving his summer home on Long Beach Island until he was laying in

the back seat of the troop car after being arrested, approximately

15 to 18 miles later. (See Ex. C, plaintiff’s deposition). 

Accordingly, and plaintiff’s contentions notwithstanding,

there is no dispute that the initial trooper on the scene was both

sensitive to and aware of the possibility of a medical condition

and/or diabetes specifically, being a possible ingredient in the

presentation made by plaintiff at the time of this encounter. His

exploration of this possibility was timely, appropriate and

specific. He did what he could with the conflicting and confounding

information provided to him. Plaintiff has made no showing nor

offered any proof or suggestion that the actions and inquiry of

trooper Brown, or the results he got, would have been any

different under any other set of circumstances. Subjecting Colonel

Fuentes to a deposition about “applicable policies regarding

diabetes” is both unnecessary and irrelevant in light of this

unchallenged factual scenario.

In addition, plaintiff has presented nothing to show that

beyond this one incident, the presence or absence, quantity or

quality, frequency or timing of the presentation of “applicable

policies regarding diabetes” is problematic or has any effect on

the public with whom the troopers come into contact or how taking

Colonel Fuentes’ deposition on this subject will have any impact of

any kind. Plaintiff offers no statistics, complaints, criticisms or

lawsuits in which the State Police have been shown to be deficient,

lacking or out of step with modern police practices. Quite to the

contrary, the State Police, for the second time, were awarded

accreditation by The Commission on Accreditation for Law

Enforcement Agencies, on July 31, 2010. This accreditation is

highly sought and prized in the field of law enforcement as it

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recognizes maintenance of the highest standards, confirmed by

independent, outside review. (See Ex. D, Certification and Letter).

3. Plaintiff was not Arrested and Charged Because He was a Diabetic

or Suffering from Diabetic Shock. He was Arrested Because He

Refused to Obey Lawful Commands and Resisted Arrest 

 

As described in the interrogatory answers of trooper Brown,

there was no attempt to restrain or interfere with plaintiff until

he posed an apparent threat to the defendants by refusing to take

his hands out of his pockets, attempting to push past the troopers

to avoid a frisk search and violently resisting arrest. (See Ex.

B). He admitted there was probable cause to lodge the charges

ultimately brought against him. (See Ex. A). He does not dispute

these underlying facts because he cannot; he has no memory of the

events. (See Ex. C). Whether or not plaintiff was a diabetic or

suffering a diabetic episode, it was his unlawful behavior, not his

medical condition, that ultimately led to his arrest and charges.

Once he embarked on this behavior, “applicable policies regarding

diabetics” would have little if any application or relevance to the

conditions then facing the troopers because their safety and well

being had been compromised and threatened. Accordingly, requiring

Colonel Fuentes to provide deposition testimony would be neither

relevant nor necessary. 

4. Plaintiff Cannot Meet the Requirement set by This Court for

Reviving the Dismissed “Official Capacity” Claim Against Defendant

Fuentes

Pursuant to this Court’s Order of August 4, 2011, dismissing

the “official capacity” claims, without prejudice, made against

Colonel Fuentes, such claims could only be revived if “evidence is

developed supporting a theory of liability in this regard under

Monell v Dep’t. Of Soc. Services of New York, 436 U.S. 658, 98

S.Ct. 2018 (1978). (PACER DOC. No. 27). Under that case, municipal

liability under §1983 may not be proven under a respondeat superior

theory of liability but must be founded on evidence that the

government itself supported a violation of constitutional rights.

Id., at 690. Municipal liability exists only where execution of the

municipality’s policy or custom, whether made by lawmakers or

decision makers whose edicts may fairly represent official policy,

inflict the injury. Id., at 694. Once a policy or custom has been

shown to exist, it must then be shown that the allegedly

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unconstitutional conduct causally results from that policy or

custom. Natale v Camden Cnty. Correctional Facility, 318 F.3d 575,

584 (3 Cir. 2003). Thus for a plaintiff to sufficiently allege rd

municipal liability under §1983, they must present facts to support

a finding that a specific policy or custom caused the alleged harm.

Further, where a failure to train is alleged, in order to

satisfy Monell’s requirement that a particular policy be the moving

force behind a constitutional violation, there must be an

affirmative link between the training inadequacies alleged and the

constitutional violation at issue. Oklahoma City v Tuttle, 471 U.S.

808, 824-25, n.8 (1985).

Here, it has been shown that, regardless of plaintiff’s

allegations concerning the existence of, training on or knowledge

about, “applicable policies regarding diabetes”, this issue

specifically, and plaintiff’s medical condition generally, was

addressed and inquired about by trooper Brown, several times, in

his initial interaction with plaintiff. In the face of this,

plaintiff’s claims about the insufficiency or inadequacy of

training, policies or procedures concerning the awareness of

diabetics and their medical problems ring hollow, undercutting

plaintiff’s claims about the necessity for Colonel Fuentes to offer

deposition testimony on this subject. Most importantly, plaintiff

cannot argue that Monell provides even the slightest support for

revival of any “official capacity” claims made against the Colonel.

Whether or not an “official” policy to plaintiff’s liking exists,

the reality is that plaintiff was questioned about and trooper

Brown was aware of the issue of diabetes and its possible

implication in this incident. Thus, plaintiff cannot show how a

specific policy, or lack thereof, caused the alleged harm.

Furthermore, and crucial to the consideration of this issue,

is that the troopers are not medical personnel empowered or

qualified to make medical diagnosis. They are law enforcement

officers who face unexpected, highly emotionally charged and life

threatening situations that at any time can cause their death or

permanent injury. Thus, to have their attention and focus diverted

from their primary function of law enforcement to venture into the

field of medical evaluation and prognostication on roadside stops

or motorist aid calls could cause them to miss otherwise

potentially fatal cues.

5. If the Issue is one of Training or Awareness of the Troopers

Than Compelling the Testimony of an Officer Charged With Such

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Responsibilities Would be More Appropriate 

Pursuant to Fed.R.Civ.P. 26(b)(1), 26(b)(2) and 26©, this

Court is empowered to make whatever provisions it deems appropriate

regarding discovery, its limitations, and necessary protections.

Plaintiff demands the deposition testimony of Colonel Fuentes

regarding policies, procedures and training of troopers in regard

to the handling of diabetic persons with whom they come in contact.

The Colonel, as Superintendent of the State Police, does not

personally engage in the creation, formulation and delivery of

instruction to the sworn members. He delegates this responsibility

to others whose primary, if not sole function is concentrated in

these areas. In addition to the reasons previously expressed as to

why this Court should not compel the deposition of the Colonel on

these areas, it seems more logical and potentially much more

fruitful to explore this subject with someone whose function it is

to formulate and instruct on the subject area. Accordingly, if it

is truly the purpose of plaintiff to learn all he can about the

creation, formulation and instruction of the State Police, it seems

that end would be better served by taking the deposition of someone

who is assigned those responsibilities.

 CONCLUSION 

For all of the reasons expressed above, defendant Joseph R.

Fuentes, Superintendent of the New Jersey state Police, requests

that the Court deny plaintiff’s request compelling his deposition.

 Respectfully submitted

JEFFREY S. CHIESA

ATTORNEY GENERAL OF NEW JERSEY

 By: Vincent J. Rizzo, Jr. 

Vincent J. Rizzo, Jr.

 Deputy Attorney General

c: Katherine Robinson, Esq.

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Sincerely yours,

JEFFREY S. CHIESA

ATTORNEY GENERAL OF NEW JERSEY

By: _______________________________

Vincent J. Rizzo, Jr.

Deputy Attorney General

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