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Barnard v. State

United States District Court, D. Maine

March 22, 2019

JEFFREY PAUL BARNARD, Plaintiff
v.
STATE OF MAINE, et al. Defendants

          ORDER ON MOTIONS FOR COPIES AND TO APPOINT COUNSEL AND RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In this action, Plaintiff claims Defendants Troy Bires and Barton Tokas, police officers employed by the City of Ellsworth, used excessive force during an encounter with Plaintiff on May 31, 2014. (Amended Complaint at 1, ECF No. 16.) The matter is before the Court on Defendants' motion for summary judgment, (ECF No. 58), Plaintiff's motion for copies, (ECF No. 60), Plaintiff's motion to delay summary judgment ruling, (ECF Nos. 60, 62, 63), Plaintiff's motion for additional discovery, (ECF Nos. 60, 62, 63), Plaintiff's motion to amend the complaint, (ECF Nos. 60, 62, 63), and Plaintiff's motion to appoint counsel. (ECF Nos. 62, 63.)

         Following a review and consideration of the parties' submissions and the record, I deny the motion for copies, deny the motion to delay summary judgment ruling, deny the motion to amend the complaint, and deny the motion to appoint counsel. I also recommend the Court grant in part and deny in part Defendants' motion for summary judgment.

         I. Motion for Copies, Motion to Delay Summary Judgment Ruling, Motion for Discovery, and Motion to Amend Complaint

         Plaintiff requests that he be provided, at Defendants' expense, copies of the documents found in the first twenty-eight docket entries of this case because his own copies of those documents, along with other legal materials and records, were lost or destroyed when he was transferred from the Somerset County Jail to Federal Bureau of Prisons custody. (Motion for Copies, ECF No. 60.) Plaintiff also moves for an extension or “equitable tolling” of the discovery deadline and requests the Court delay ruling on the summary judgment motion until after he has conducted additional discovery. (Id.; Plaintiff's Response to Defendant's Summary Judgment Motion at 13 - 16, 38, ECF No. 62, 63). Furthermore, Plaintiff seeks to amend his Amended Complaint to add claims for retaliation and destruction of evidence against Defendants and other government actors. (Id.; Plaintiff's Response to Defendant's Summary Judgment Motion at 14 - 17.)

         “Rule 16(b) requires that the district court enter a scheduling order setting certain deadlines, ” including a deadline for the parties to amend the pleadings and a deadline for discovery. Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (citing See Fed.R.Civ.P. 16(b)(1)). To obtain an amendment of the scheduling order, a party must demonstrate “good cause.” Johnson v. Spencer Press of Maine, Inc., 211 F.R.D. 27, 30 (D. Me. 2002); El-Hajj v. Fortis Benefits Ins. Co., 156 F.Supp.2d 27, 34 (D. Me. 2001); Fed.R.Civ.P. 16(b)(4). A court's decision on good cause “focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004).

         Rule 56(d) allows a court to permit discovery and “defer considering” a summary judgment motion if “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). The party seeking delay or discovery “must (1) articulate a plausible basis for the belief that discoverable materials exist which would raise a trialworthy issue, and (2) demonstrate good cause for failure to have conducted the discovery earlier.” Price v. Gen. Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991).

         Plaintiff fails to establish good cause to support his requests. Plaintiff maintains he has been without the files since early 2017, but does not explain why he could not have pursued discovery within the original deadline without the missing files, and offers no explanation for his lengthy delay in bringing the issue to the Court's attention. Furthermore, Plaintiff does not explain how the documents would alter the Court's summary judgment analysis.

         Plaintiff has also not shown good cause for another amendment to his complaint. Plaintiff offers only bald and conclusory allegations to support his contention that Defendants were involved in the events that allegedly caused Plaintiff to become separated from his file materials. For that reason, Plaintiff has not established the necessary cause for the amendment, nor a basis for Defendants to incur the cost of producing copies of the docket entries. The Court, however, will direct the Clerk to forward to Plaintiff a copy of the Court's docket sheet in the case. If upon review of the docket sheet, Plaintiff determines there are specific documents he needs, Plaintiff can renew his request, with a supporting explanation, for the documents. If Plaintiff files such a motion, the Court will assess whether to order the production of the documents.

         Finally, as part of his request to amend, Plaintiff seeks to join individuals who are not currently parties to the case. Given the length of time this action has been pending, I am not persuaded that the joinder of new parties at this stage of the proceedings is warranted. To the extent Plaintiff believes he has a cause of action against any individuals who are not parties to this case, Plaintiff can pursue the claims in separate action.

         II. Motion to Appoint Counsel

         Plaintiff asks the Court to “[a]ppoint professional counsel to represent this plaintiff in this civil rights action at this time to allow him meaningful access to the courts.” (Plaintiff's Response to Defendant's Summary Judgment Motion at 43, ECF No. 62, 63).

         “There is no absolute constitutional right to a free lawyer in a civil case.” DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The in forma pauperis statute provides that the Court “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The appointment of counsel under the statute is discretionary, but generally is limited to “exceptional circumstances.” DesRosiers, 949 F.2d at 23. “[A] court must examine the total situation, focusing, inter alia, on the merits of the case, the complexity of the legal issues, and the litigant's ability to represent himself.” Id. at 24. For example, the presence of “readily mastered facts and straightforward law” would suggest that a request for counsel “should be denied in a civil case.” Id. Denial of an indigent plaintiff's request for counsel is error only if the denial “was likely to result in fundamental unfairness impinging on his due process rights.” Id. at 23.

         This Court has already considered and denied an earlier motion to appoint counsel for Plaintiff. (ECF Nos. 13, 18.) The Court reasoned that the law and facts relevant to Plaintiff's case are sufficiently straightforward so that Plaintiff would be able to represent himself. Id. Plaintiff has not presented any reasons or new arguments that might change the Court's conclusion. Accordingly, Plaintiff's motion for appointed counsel is denied.

         III. Defendants' Motion for Summary Judgment

         Summary Judgment Standard

          “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “After the moving party has presented evidence in support of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.'” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).

         A court reviews the factual record in the light most favorable to the non-moving party, resolving evidentiary conflicts and drawing reasonable inferences in the non-movant's favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court's review of the record reveals evidence sufficient to support findings in favor of the non-moving party on one or more of the Plaintiff's claims, a trial-worthy controversy exists, and summary judgment must be denied as to any supported claim. Id. (“The district court's role is limited to assessing whether there exists evidence such that a reasonable jury could return a verdict for the nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary Judgment Record

          When presented with a summary judgment motion, a court ordinarily considers only the facts included in the parties' statements of material facts, which statements must be supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and District of Maine Local Rule 56(b) - (d) require the specific citation to record evidence. In addition, Local Rule 56 establishes the manner by which parties must present their factual statements and the evidence on which the statements depend. A party's pro se status does not relieve the party of the obligation to comply with the court's procedural rules.[1]Ruiz Rivera v. Riley, 209 F.3d 24, 27 - 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F.Supp.2d 70, 77 (D. Me. 2007).

         By rule, a party seeking summary judgment must file, in addition to its summary judgment motion, a supporting statement of material facts setting forth each fact in a separately numbered paragraph, with each factual statement followed by a citation to evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party opposing a motion for summary judgment must file an opposing statement in which it admits, denies, or qualifies the moving party's statements by reference to each numbered paragraph, with citations to supporting evidence, and in which it may set forth additional facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc. R. 56(c). If an additional statement is introduced by the non-moving party, the moving party must file a reply statement in which it admits, denies, or qualifies the non-moving party's additional statements by reference to each numbered paragraph, with citations to supporting evidence. D. Me. Loc. R. 56(d).

         “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” Id. Finally, “[t]he court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.” Id.

         Nevertheless, the factual assertions contained in the verified pleadings and affidavits filed by a pro se litigant generally will be considered in the review of a summary judgment motion. That is, where a pro se litigant has failed to comply strictly with the summary judgment rules, this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F.Supp.2d 124, 128 - 30 (D. Me. 2007) (“The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read ‘liberally.'” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F.Supp.2d 177, 182 - 83 (D. Me. 2007). The First Circuit has determined that:

a verified complaint ought to be treated as the functional equivalent of an affidavit to the extent it satisfies the standards explicated in Rule 56(e) (in summary judgment milieu, affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated herein”)

Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991) (citations omitted).

         In this case, Plaintiff's operative pleading, the amended complaint (ECF No. 16), was filed under the penalty of perjury and Plaintiff's attestation was notarized. In addition, in his statement of disputed facts filed in response to the motion for summary judgment, Plaintiff asserts additional facts under the penalty of perjury. (PRDSMF, ECF No. 64.) Although Defendants challenge the sufficiency of the submissions, the declarations are in substantial compliance with 28 U.S.C. § 1746 and Federal Rule of Civil Procedure 56(c)(4), and thus appropriate for the Court to consider.[2]

         Factual and Procedural Background [3]

         A. The Parties

         In the spring of 2014, Plaintiff and his wife were living in a thirty-foot travel trailer parked on a property owned by James Thibodeau at 303 North Street, Ellsworth, Maine. (Amended Complaint ¶ 11 - 12.) Pursuant to a verbal or “handshake” agreement, Plaintiff installed a septic tank on the property, used a shop on the property, and acted as a caretaker for the property. (Id.) The agreement also permitted Plaintiff to use a Kubota tractor. (Id.) Plaintiff used the tractor to position the travel trailer close to the shop, and to pull the travel trailer away from the shop so that he could hook up the trailer to the hitch on his truck. (Id. ¶ 15.) Plaintiff had a set of tractor keys. (DSMF ¶ 5.)

         In the spring of 2014, Defendant Bires and Defendant Tokas were employed as City of Ellsworth police officers. (DSMF ¶ 1.) On May 16 or 18, 2014, Defendant Tokas went to the property at 303 North Street to address a dispute between Plaintiff and Mr. Thibodeau about the tractor. (Amended Complaint ¶ 13; PRDSMF ¶ 5.) Defendant Tokas informed Plaintiff and Mr. Thibodeau that their dispute was a civil matter and advised that one of them should file a civil complaint to resolve the issue. (Amended Complaint ¶¶ 22 - 23; PRDSMF ¶ 5.)

         B. The Attempt to ...


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