United States District Court, D. Maine
ORDER ON MOTIONS FOR COPIES AND TO APPOINT COUNSEL
AND RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR
C. NIVISON U.S. MAGISTRATE JUDGE
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.)
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.
Motion for Copies, Motion to Delay Summary Judgment Ruling,
Motion for Discovery, and Motion to Amend Complaint
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.)
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).
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).
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.
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.
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.
Motion to Appoint Counsel
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).
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.
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.
Defendants' Motion for Summary Judgment
“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)).
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
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.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.
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.
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
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).
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.
and Procedural Background 
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.)
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.)
The Attempt to ...