United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
ORDER ON DISCOVERY MOTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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).
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.
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.
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.
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).
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).
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)).
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).
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.