With some changes, the Southern District of New York has extended a pilot program designed to encourage the settlement of federal civil rights actions against the New York City Police Department.
The Pilot Plan for Certain §1983 Cases Against the City of New York was launched in June 2011, and effective Jan. 2 was extended for another calendar year. Meanwhile, the court has started the process to incorporate it into the district’s Local Rules.
Judges and court officials have touted the plan, which focuses on cases alleging excessive force, false arrest or malicious prosecution, as a way to cut through the 1,500 to 1,600 pending police misconduct cases being defended by the city’s Law Department.
The plan extends the city’s obligation to answer a complaint to 80 days from the usual 21 days and postpones most discovery until after the parties have appeared before a magistrate judge to begin settlement talks or ask to be exempt. If neither occur, the parties go straight into mediation.
Initial disclosures in a case are made within 21 days of the department’s answer, with the city having 28 days to turn over any history of disciplinary complaints against the police officer/defendant. Plaintiffs have six weeks after the answer to file a settlement demand the city must respond to in 14 days. Three months after the answer, the parties must appear before a mediator or a magistrate judge for settlement talks at which the Law Department is required to have a lawyer with authority to settle the case present in person or on the phone.
Some civil rights lawyers criticized the plan at a hearing held in June by Judge Paul Crotty, chair of the district’s Ad Hoc Subcommittee on Section 1983 Cases (NYLJ, June 13, 2013).
One complaint was about a requirement that plaintiffs must serve a release for medical records with their §1983 complaints, as well as a release for any sealed arrest records and a list of prior arrests.
Some attorneys said the plan lacked parity because an equally timely disclosure was not required for police disciplinary histories. There was also criticism that the mediators were inexperienced in handling police misconduct cases and that the plan alters the Federal Rules of Criminal Procedure while being weighted against plaintiffs.
But Crotty, who served as the city’s corporation counsel from 1994 to 1997 and is well-versed in civil rights litigation against the city, defended the plan as a way of helping the court relieve a crowded docket and speed resolution of cases that can languish for years.
Crotty told one attorney at the hearing, Christopher Dunn of the New York Civil Liberties Union, that some judges “don’t like the plan, but I think it’s working better than you suggest.”
And Celeste Koeleveld, executive assistant corporation counsel for public safety at the Law Department, said at the hearing that cases move faster under the plan.
Despite the almost uniformly negative comments of plaintiffs attorneys at the June hearing, Koeleveld insisted the “vast majority” of civil rights lawyers were pleased with the plan.
“They get the documents they need early on,” she said.
The district’s notice to the bar about the changes and the one-year extension said the pilot plan has resulted in the settlement of “70 percent of plan-eligible cases in the first six months after the filing of a complaint.”
But the court also told lawyers that some changes were made in the plan after comments at the hearing.
One change the court made was to “make explicit that plaintiffs who allege ‘garden variety’ damages need not provide defendants with medical and mental health releases.”
Another change is that the parties can request an initial pretrial conference with the presiding judge where the mediation or settlement conference is unsuccessful.
The court also has replaced an order to show cause requirement with a provision allowing either party to contact the judge if the opposing party is not complying with the plan.
Finally, the court said that, going forward, “the discovery stay expires if the case does not settle at the mediation or settlement conference.”
Dunn said Friday in an interview that the plan was still flawed.
“While we welcome these revisions they do nothing to address the plan’s most serious problems,” he said. “As revised, the plan makes changes to the Federal Rules of Civil Procedure that the Southern District has no authority to make and leaves plaintiffs at a serious disadvantage in litigating police misconduct cases against the NYPD. Whatever concerns the court may have about these cases, this plan is neither an appropriate nor fair solution.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.