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Widi v. McNeil

United States District Court, D. Maine

October 13, 2017

DAVID J. WIDI, JR., Plaintiff,
v.
PAUL MCNEIL, et al., Defendants.

          ORDER ON DISCOVERY MOTION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The parties dispute whether a plaintiff may obtain discovery under Federal Rule of Civil Procedure 56(d). The Court orders the parties to confer pursuant to Local Rule 26(b) and report to the Court as to whether they are able to agree to the limited and focused discovery described in this Order.

         I. BACKGROUND

         On June 13, 2012, David J. Widi, Jr. filed a complaint against a number of state and federal officials pursuant to 42 U.S.C. § 1983, including Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) Agents Stephen E. Hickey and Michael A. Grasso, claiming they violated his civil rights on November 28, 2008. Compl. (ECF No. 1). More than five years later, Mr. Widi's case remains pending. Mr. Widi filed a Second Amended Complaint on November 18, 2013. Second Amended Compl. (ECF No. 191). It serves no useful purpose to wend through the procedural maze that preceded this motion.

         The Court begins on January 10, 2017, when the Court permitted Mr. Widi to assert a claim in Count VII of the Second Amended Complaint against Agents Hickey and Grasso, based on Mr. Widi's claim that they unlawfully searched the so-called grey trailer that was on the grounds of his residence and found and photographed a motorcycle inside. Order on Mot. for Recons. at 19 (ECF No. 392).

         To substantiate his allegations against Agents Hickey and Grasso, Mr. Widi referred to the fact that the Agents' names appear on a photo log, “which lists “Grasso” for Photo 20 as the person who found the evidence, names the location of the photograph as the ‘Utility Trailer w/ Harley, ' and lists Stephen Hickey as the photographer.” Id. at 19. In his motion for reconsideration, Mr. Widi alleged that this means that “Special Agent Grasso found the utility trailer with the motorcycle inside, and Special Agent Hickey took photographs of it.” Id. (citing Mot. for Recons. at 18 (ECF No. 292)). Mr. Widi attached a photograph to his motion for reconsideration that showed an enclosed trailer with the door open and a motorcycle inside. Id. (citing App. at A39).

         The Court characterized this accumulated evidence against Agents Grasso and Hickey as “thin.” Id. Nevertheless, viewing Mr. Widi's allegations extremely charitably for purposes of the screening mechanism in 28 U.S.C. § 1915A, the Court concluded it was constrained to allow the Second Amended Complaint to go forward against these Agents. Id. at 6-7, 19-20, 32.

         On April 18, 2017, Agents Hickey and Grasso filed a motion for summary judgment, Stephen E. Hickey and Michael Grasso's Mot. for Summ. J. on Count VII of the Second Am. Compl. (ECF No. 428), and a Statement of Undisputed Material Facts. Statement of Undisputed Material Facts (ECF No. 429) (DSMF). In their motion, the Agents present a starkly different version of what transpired during the November 28, 2008 search regarding the grey trailer, and they have submitted affidavits from the Agents and others to back up their version of the events.

         They say that it is part of standard operating procedure for ATF to videotape the premises before executing a search warrant. DSMF Attach. 5, Decl. of Stephen E. Hickey ¶ 4; Attach. 3, Decl. of Douglas Kirk ¶ 4 (Kirk Decl.); Attach. 2, Decl. of Michael Grasso ¶ 4. Agent Kirk videotaped the premises, including the grey trailer, before the search began, and when he did so, the trailer was “wide open.” Kirk Decl. ¶ 7. Agent Hickey was assigned to take photographs of the premises and the items found during the search. Hickey Decl. ¶ 5. Agent Grasso was part of the search team. Grasso Decl. ¶ 6. While the search was being conducted, Agent Grasso asked Agent Hickey to photograph the trailer and at that time the Harley Davidson was in plain view. Hickey Decl. ¶¶ 6, 7, 9. Neither Agent Hickey nor Agent Grasso has any information regarding who, if anyone, opened the trailer on November 28, 2008 and they believe it is possible the trailer was open when the law enforcement officers arrived to execute the search warrant. Hickey Decl. ¶ 10; Grasso Decl. ¶ 10.

         Mr. Widi's response to the Agents' motion for summary judgment was originally due on May 9, 2017. On May 22, 2017, Mr. Widi filed a motion to extend time to file an opposition to the motion for summary judgment. Mot. to Enlarge Time to File Opp'n to Defs. Hickey and Grasso's Mot. for Summ. J. on Count VII (ECF No. 442). In that motion, Mr. Widi, who was still incarcerated, claimed that he had been unable to view the DVD that depicted the premises before the search. Id. at 1. On May 23, 2017, the Court asked Agents Hickey and Grasso to confirm that they had supplied Mr. Widi with a copy of the DVD. Order (ECF No. 444). On May 23, 2017, the Agents confirmed that they had in fact sent Mr. Widi a copy of the DVD by certified mail and that it had been received by FCI Pollock on April 21, 2017. Stephen E. Hickey and Michael Grasso's Resp. to Mot. to Enlarge Time (ECF No. 442) and the Court's Interim Order with Respect to Same (ECF No. 444) (ECF No. 445). Having concluded that Mr. Widi's inability to view the DVD was not caused by the Agents and was the result of internal policy within the Bureau of Prisons, the Court granted Mr. Widi's motion and his response was then due on June 30, 2017. Order (ECF No. 446).

         On July 3, 2017, Mr. Widi filed another motion to extend time. Second Mot. to Enlarge Time to File Opp'n to Defs. Hickey and Grasso's Mot. for Summ. J. on Count VII (ECF No. 457). Mr. Widi engaged in an extended discussion about the Bureau of Prisons hurdles that prevented him from viewing the DVD. Id. at 1-2. At the same time, he noted that he was scheduled to be released from Bureau of Prisons' custody on July 7, 2017, which seemed to obviate his viewing difficulties. Id. at 2. However, Mr. Widi raised another issue: discovery. Id. at 2. He said that on March 6, 2017, he had made a discovery request to Agents Hickey and Grasso, but that he never received a response. Id. Mr. Widi stated that he followed up with a letter by certified mail and was “hoping that the Defendants will respond in the immediate future and [believed] that the requested discovery [was] necessary to effectively oppose the Defendants' motion.” Id. On July 6, 2017, the Court granted Mr. Widi's motion in large part and extended the time for response to July 28, 2017. Order on David J. Widi, Jr.'s Second Mot. to Enlarge Time to File Opp'n to Defs. Hickey and Grasso's Mot. for Summ. J. on Count VII (ECF No. 458).

         On July 10, 2017, Agents Hickey and Grasso filed a so-called status report concerning Mr. Widi's discovery requests. Stephen E. Hickey and Michael Grasso's Status Report Regarding Pl.'s Purported Disc. Reqs. (ECF No. 461). In their status report, Agents Hickey and Grasso write that Mr. Widi did not serve his “‘discovery requests' until after Defendants had filed their Motion for Summary Judgment.” Id. at 1 (emphasis in original). Accordingly, the Agents say, they “do not intend to respond to them until and unless Widi complies with Fed.R.Civ.P. 56(d).” Id. The Agents also dispute whether Mr. Widi sent the discovery requests when he said he sent them. Id. at 1-3. Furthermore, the Agents say that it is black letter law that a “litigant who invokes [Rule 56(d)] must make an authoritative and timely proffer showing ‘good cause for his inability to have discovered or marshaled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.'” Id. at 3 (quoting Donovan v. Fowle, No. 1:09-cv-00328-JAW, 2010 U.S. Dist. LEXIS 43675 (D. Me. May 3, 2010) (quoting Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007)).

         On the same day, Mr. Widi filed a motion to compel discovery. Mot. to Compel Disc. (ECF No. 462). To his discovery motion, Mr. Widi attached a discovery request, asking Agents Hickey and Grasso to produce a large number of documents and information relating to the November 28, 2008 search. Id. Attach. 1, Disc. Req. On July 17, 2017, Agents Hickey and Grasso responded, opposing Mr. Widi's discovery requests. Stephen E. Hickey and Michael Grasso's Opp'n to Pl.'s Mot. to Compel Disc. (ECF No. 464). On September 5, 2017, Mr. Widi replied to the Defendants' response to his motion to compel discovery. Reply to Hickey and Grasso's Opp'n to Pl.'s Mot. to Compel Disc. (ECF No. 488).

         On July 28, 2017, Mr. Widi responded to the Agents' motion for summary judgment, filed a response to their statement of undisputed material fact, and presented additional material facts. Opp'n to Hickey and Grasso's Mot. for Summ. J. on Count VII of the Second Am. Compl. (ECF No. ...


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