Williams v. Johnson

JAMAL WILLIAMS, Plaintiff, v. AARON JOHNSON, Defendant.

17-CV-2351 (BCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 19, 2021

ORDER DISMISSING CASE AND IMPOSING SANCTIONS

BARBARA MOSES, United States Magistrate Judge.

By letter-motion dated December 30, 2020, plaintiff Jamal Williams requests that the Court (i) dismiss his remaining claims with prejudice pursuant to Fed. R. Civ. P. 41(a)(2), and (ii) sanction defendant Aaron Johnson and his counsel, the New York City Law Department (Law Department), pursuant to Fed. R. Civ. P. 37(d), for withholding, until the eve of trial, a short video that substantially undercuts plaintiff's case. Pl. Ltr. (Dkt. No. 70) at 1. Defendant joins the motion to dismiss but opposes the request for sanctions, arguing that plaintiff himself was "aware of" and "in possession of" the same video, which he apparently concealed even from his own lawyer. Def. Ltr. (Dkt. No. 72) at 1, 2. For the reasons that follow, plaintiff's claims will be dismissed with prejudice and the Law Department will pay the sum of $100 to the Clerk of Court.

Background

This action arises out of plaintiff's arrest by the New York City Police Department (NYPD) on November 18, 2015, and his subsequent prosecution, based on a criminal complaint signed by defendant, for possession of a firearm and possession of marijuana. The criminal case was dismissed on June 16, 2016, at the request of the People, "because we cannot prove it beyond a reasonable doubt." (Dkt. No. 65-1.)

Plaintiff filed this action March 31, 2017, asserting claims against Johnson and others for false arrest, malicious prosecution, denial of the right to a fair trial, and failure to intervene. (Dkt. No. 1.) On March 31, 2019, after discovery was completed, the Honorable Edgardo Ramos, United States District Judge, granted defendants' summary judgment motion in part, leaving two claims for trial against defendant Johnson: malicious prosecution and denial of the right to a fair trial. See Op. & Order (Dkt. No. 47) at 17.

Both remaining claims turn largely on whether defendant had probable cause to prosecute plaintiff after a search of his apartment on November 18, 2015 (pursuant to a search warrant) uncovered bags of marijuana, a scale, a .357 magnum revolver, and ammunition. The parties dispute whether any of the marijuana was found in the living room - shared by Williams and his brother, Andrew Hudson - or whether all of it was recovered from Hudson's bedroom. See Op. & Order at 3-4, 7-8. The parties agree that the gun was found in Hudson's bedroom, see id. at 3, but disagree as to whether Johnson had probable cause to believe that Williams had actual or constructive possession of the firearm, as required for a criminal conviction. See Def. Mem. dated May 21, 2018 (Dkt. No. 37), at 10-13; Pl. Mem. dated July 17, 2018 (Dkt. No. 42), at 7-11. "In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised 'dominion or control' over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v. Manini, 79 N.Y.2d 561, 573 (1992) (citations omitted).

Trial was originally scheduled to commence on June 24, 2019, before a jury. However, on May 22, 2019, the parties consented to jurisdiction by a magistrate judge for all purposes. (Dkt. No. 52.) On October 6, 2020, the district judge so-ordered that consent (Dkt. No. 54), and the case was assigned to me for trial. On October 20, 2020, Senior Attorney Bilal H. Haider of the Law Department entered his appearance on behalf of defendant. (Dkt. No. 56.) On November 6, 2020, I scheduled trial to commence on January 25, 2021, and directed the parties to file their jointpretrial order and submit their witnesses' direct testimony, in affidavit form, by January 4, 2021. (Dkt. No. 59.)

The Video

On December 29, 2020, "[i]n accordance with defendant's continuing discovery obligations pursuant to Fed. R. Civ. P. 26(a)(1) and 26(e)," defendant produced, for the first time, an electronic copy of what attorney Haider described as a "Social Media Video of Plaintiff." (Dkt. No. 70-1.) The undated video, which was "apparently taken with a cell phone," "appears to show plaintiff with a handgun similar to that recovered on November 18, 2015." Pl. Ltr. at 2. In response to questions from plaintiff's counsel, attorney Haider stated, in a December 30, 2020 email, that the video "was taken from plaintiff's own [F]acebook page and provided to defendant Johnson prior to the execution of the search warrant of plaintiff's apartment." (Dkt. No. 70-2.)

The Letter-Motion and Response

Plaintiff filed his letter-motion later that day, explaining through his counsel, Michael Lumer, that he wished to discontinue this lawsuit with prejudice because the video "goes both to the heart of this case (whether defendants had probable cause to arrest and prosecute plaintiff for the actual or constructive possession of the handgun) and the plaintiff's disavowals of knowledge of the gun in his post-arrest statements." Pl. Ltr. at 3. At the same time, plaintiff sought sanctions against the Law Department for its "intentional withholding" of the evidence, which "resulted in the needless expenditure of many hours and dollars, and wasted the Court's valuable time and resources." Id.¹

In defendant's responding letter, also dated December 30, 2020, attorney Haider pointed out the "ironic" nature of the relief sought by plaintiff, who moved to "abandon this lawsuit" only"when faced with the possibility that [the] information he willfully failed to disclose to defendant and his own counsel may be presented at trial." Def. Ltr. at 1. Defendant acknowledged that the Law Department received the video "no later than September 2017," and conceded that it "may have been responsive" to plaintiff's discovery requests, which is why Haider determined to produce it upon reviewing the case file. Def. Ltr. at 2. However, defendant asserted, "previous defense counsel" deemed the video "pure impeachment evidence that was not responsive to plaintiff's discovery requests." Id. Therefore, defendant concluded, the Law Department did not "intentionally withhold discoverable evidence." Id.

I adjourned the parties' remaining pretrial deadlines (Dkt. Nos. 71, 74) and directed them to submit a joint letter attaching "each discovery request (including, if applicable, deposition questions) that, in either party's view, required the opposing party to disclose the video," as well as a copy of the video itself. (Dkt. No. 74.) On January 12, 2021, the parties filed the required letter (Joint Ltr.) (Dkt. No. 75), attaching various discovery materials.² Those materials reveal that "[p]revious defense counsel" was Assistant Corporation Counsel Alison S. Mitchell, who represented defendant Johnson during the discovery phase of this action and signed his written discovery responses. In one of those responses, dated October 2, 2017, defendant denied that there were any documents or other items responsive to plaintiff's Document Demand No. 13, which sought:

All documents, communications, and electronically memorialized information, including without limitation all photographs, video recordings, audio recordings, digital images, or other similar media, concerning the various items of contraband allegedly recovered during the Arrest, including but not limited to the handgun and the marijuana.

(Dkt. No. 75-2, at 24-25.)

During argument on the motions to dismiss and for sanctions, which I heard on January 15, 2021, counsel disagreed on the provenance of the video. Attorney Haider stated that defendant Johnson received it from a confidential informant who told him that the informant "got it from Facebook." Counsel conceded that defendant did not personally see the video on Facebook or any other social media site. Attorney Lumer reported that - according to his client - the video was on a phone of his that was "taken" by an ex-girlfriend several weeks prior to his arrest, but was never posted to his Facebook account or other social media. Plaintiff "assumes" that it was the ex-girlfriend who gave the video to the police.

Analysis

A federal trial court may dismiss an action, at the plaintiff's request, "on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). Unless the order states otherwise, the dismissal is without prejudice. Id. Here, plaintiff requests that his remaining claims be dismissed with prejudice. Pl. Ltr. at 1. Defendant having joined in that motion, see Def. Ltr. at 1, it will be granted.

Plaintiff also requests discovery sanctions pursuant to Rule 37(d). Pl. Ltr. at 1. The Court agrees with plaintiff that the Law Department improperly withheld the video from production during the discovery phase of this action, and that its discovery misconduct "caused this litigation to continue onward" for another three years, unnecessarily burdening the parties, their counsel, and the Court. Pl. Ltr. at 3. Document Demand No. 13 called for the production of "all . . . video recordings . . . concerning the various items of contraband allegedly recovered during the Arrest, including . . . the handgun." The video now at issue falls squarely within these parameters, was in the possession of the Law Department, and therefore should have been produced.

Defendant's characterization of the video as "pure impeachment evidence" is unavailing. While the video may indeed constitute powerful impeachment material,³ it also shows Williamsexercising what looks like "dominion and control" over the handgun and is therefore relevant to the probable cause question at the heart of this action. Moreover, while a party need not disclose "pure impeachment evidence" pursuant to Rule 26(a)(1)(A)(ii), such evidence may be discoverable pursuant to, inter alia, Rule 34. See Fed. R. Civ. P....