Brown et al v. Dirga et al

Filing 63

MEMORANDUM OF CONFERENCE and RULING ON MOTIONS: Denying 26 MOTION to Appoint Counsel with leave to renew; denying 45 MOTION for Mental Examination of Plaintiff; denying 46 MOTION to Appoint Expert Witness; denying 47 MOTION for Extension of Time to Prepare Case for Trial; granting in part and denying in part 48 MOTION to Compel Discovery; and denying 58 MOTION for Extension of Time to prepare for trial and find counsel. See attached Memorandum of Conference and Ruling on Motions for further details. Signed by Judge Sarah A. L. Merriam on 5/11/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
FRANKLIN BROWN
:
:
v.
:
:
FREDRICK DIRGA
:
:
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Civil No. 3:15CV01086(JCH)

May 11, 2016

MEMORANDUM OF CONFERENCE AND RULING ON MOTIONS
On May 10, 2016, this Court held a telephonic Discovery and
Case Management Conference on the record to address plaintiff’s
pending motions. Plaintiff Franklin Brown (“plaintiff”),
appearing pro se, and counsel for defendants, Attorney
Christopher A. Clark, participated in the conference. The
following summarizes the pertinent discussions held during the
May 10, 2016, conference.1
I.

Motion for Mental Examination of Plaintiff [Doc. #45]
Pending before the Court is a motion filed by the

incarcerated pro se plaintiff seeking an order pursuant to Rule
35 of the Federal Rules of Civil Procedure for a mental
examination of the plaintiff. Plaintiff argues that the mental
examination is necessary to prove his claims of Post-Traumatic
Stress Disorder and depression; to prevent the dismissal of his
case for lack of medical evidence or testimony; and because he
The Court addresses plaintiff’s oral motion to dismiss
defendant Del Mauro in a separate ruling.
1

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has not received any mental health treatment since his
incarceration. [Doc. # 45 at 1, 2].
As articulated on the record at the conference, Rule 35
empowers the Court to order a party to submit to an examination
at the request of the opposing party, but the Rule “does not
authorize a party to file a motion for his own ... examination.”
Jenkins v. Doe, No. 3:09CV1194(SRU), 2011 WL 121682, at *1 (D.
Conn. Jan. 13, 2011) (citing Green v. Branson, 108 F.3d 1296,
1304 (10th Cir. 1997)); see also Funderburke v. Canfield, No.
13CV6128, 2014 WL 6390577, at *1 (W.D.N.Y. Nov. 7, 2014).
Further, Rule 35 cannot be used to secure medical
treatment. See Jenkins, 2011 WL 121682, at *1 (“Although the
injury to the plaintiff’s knee is a matter in controversy as
alleged in the amended complaint, the plaintiff’s motion is
simply an attempt to obtain medical treatment for his injury.
Thus, the plaintiff’s motion for an examination pursuant to Rule
35, Fed. R. Civ. P., is denied.”); see also Green, 108 F.3d at
1304 (upholding denial of an inmate’s Rule 35 motion where the
purpose was to obtain medical care). Accordingly, plaintiff’s
Motion for Mental Examination [Doc. #45] is DENIED. To the
extent that plaintiff seeks medical treatment while
incarcerated, the Court encourages plaintiff to request
treatment at his facility.

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II.

Motion for Appointment of Expert Witness [Doc. #46]
Plaintiff seeks the appointment of an expert witness at

Court expense. [Doc. #46]. Plaintiff requests an expert to
establish “the environmental conditions at night.” Id. at 1. He
also seeks an expert “to establish if the defendants had
probable cause.” Id. The decision to appoint an expert “is
committed to the sound discretion of the district court.” Azkour
v. Little Rest Twelve, Inc., -- F. App’x --, 2016 WL 1459239, at
*2 (2d Cir. Apr. 14, 2016). That decision “is to be informed by
such factors as the complexity of the matters to be determined
and the Court’s need for a neutral, expert view.” Pabon v.
Goord, No. 99CV5869(WHP)(THK), 2001 WL 856601, at *1 (S.D.N.Y.
July 30, 2001); see also Scott v. Spanjer Bros., Inc., 298 F.2d
928, 930-31 (2d Cir. 1962).
The pro se plaintiff’s motion references Rule 702 of the
Federal Rules of Evidence, which relates to the testimony of
expert witnesses. Rule 706 permits a court to appoint an expert
witness, but not as a partisan for one party or another. “The
appointment of an expert witness pursuant to Rule 706 is not
intended to aid litigants, but rather to aid the Court, through
the services of an impartial expert, in its assessment of
technical issues.” Brown v. Johnson & Johnson Pharm., No.
12CV01381(MPS), 2015 WL 235135, at *2 n.1 (D. Conn. Jan. 16,

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2015) (internal citations and quotation marks omitted). Thus,
appointment of an expert under Rule 706 is not proper here.
Construing plaintiff’s motion, in the alternative, as
seeking court funding for a retained expert in support of
plaintiff’s case, the motion also fails. As discussed on the
record, a “court may admit expert testimony if it finds that
‘scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue.’ Fed. R. Evid. 702. If the testimony
is instead directed solely to ‘lay matters which a jury is
capable of understanding and deciding without the expert’s
help,’ Andrews v. Metro–North Commuter R.R. Co., 882 F.2d 705,
708 (2d Cir. 1989), the testimony is properly excludable.”
United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991).
Here, the effect of darkness on a person’s ability to
observe events is well within the purview of a lay jury, and no
expert testimony is required. It also would not be proper to
admit expert testimony on the presence or absence of probable
cause in this case. “Questions of law are for the court.” U.S.
v. Ingredient Tech. Corp., 698 F.2d 88, 97 (2d Cir. 1983)
(affirming exclusion of proposed expert witness testimony); Hygh
v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) (“This circuit is in
accord with other circuits in requiring exclusion of expert

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testimony that expresses a legal conclusion.”). Accordingly,
plaintiff’s Motion for Expert Witness [Doc. #46] is DENIED.
III. Motion to Appoint Counsel [Doc. #26]
Plaintiff’s Motion to Appoint Counsel, previously taken
under advisement, remains pending. As discussed at the
conference, the decision whether to appoint counsel for a pro se
party is left to the discretion of the Court, which considers
criteria including “the merits of plaintiff’s case, the
plaintiff’s ability to pay for private counsel, his efforts to
obtain a lawyer, the availability of counsel, and the
plaintiff’s ability to gather the facts and deal with the issues
if unassisted by counsel.” Cooper v. A. Sargenti Co., 877 F.2d
170, 172 (2d Cir. 1989).
Plaintiff stated on the record that he has contacted
several lawyers and continues to attempt to locate counsel. As
the Court noted at the conference, plaintiff must also make a
threshold showing of some likelihood of merit. “Even where the
claim is not frivolous, counsel is often unwarranted where the
indigent’s chances of success are extremely slim.” Hodge v.
Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (internal
citation and quotation marks omitted).
At this stage of the proceedings, plaintiff has not shown
that his case has merit sufficient to warrant the appointment of
counsel. Further, the issues presented in plaintiff’s case are
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not so complex as to warrant the appointment of counsel at this
time. See Parks v. Smith, 505 F. App’x 42, 43 (2d Cir. 2012)
(“The District Court did not abuse its discretion in determining
that, even if [plaintiff] met the threshold requirement,
secondary factors weighed against the appointment of counsel,
since the issues presented in [plaintiff’s] action were not
overly complex and [plaintiff] was able to effectively litigate
his case without counsel[.]”). The Court notes that plaintiff
has successfully engaged in the discovery process and motion
practice without counsel to date.
Accordingly, the Court DENIES plaintiff’s Motion to Appoint
Counsel [Doc. # 26], without prejudice to renewal after the
resolution of any dispositive motions. As the Court indicated at
the conference, if this case proceeds to trial, the Court may be
more inclined to grant a renewed motion to appoint counsel.
IV.

Motion to Enlarge Time [Doc. #47] and Request for an Order
to Enlarge Time [Doc. #58]
Plaintiff has two pending motions before this Court that

seek essentially the same relief: an extension of the deadline
for discovery in this case from the current deadline of June 30,
2016, to after his expected release date in late 2016 or early
2017. Plaintiff argues that he needs more time to prepare his
case for trial, specifically, to find and interview witnesses,

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investigate facts, and retain an attorney. [Doc. #47 at 1, Doc.
#58 at 1-2].
The Court will not place this matter on hold for plaintiff
to obtain counsel. This case has been pending for ten months and
additional delay is unnecessary. Significant discovery has been
conducted by both parties. Plaintiff is free to locate and
interview potential witnesses at any time prior to trial.
Accordingly, Plaintiff’s Motion to Enlarge Time [Doc. #47] and
Plaintiff’s Request for an Order to Enlarge Time [Doc. #58] are
DENIED. However, as stated on the record, if plaintiff obtains
private counsel and counsel files an appearance by June 30,
2016, the Court will consider extending the deadlines in this
matter by 60 days upon the filing of an appropriate motion.
V.

Motion to Compel Discovery [Doc. #48]
Plaintiff has filed a Motion to Compel Discovery. [Doc.

#48]. Plaintiff served 21 interrogatories and five (5) requests
for production on each defendant. The motion as filed sought
responses to all requests. On the record, plaintiff withdrew his
motion as it pertained to Interrogatories 1 through 7, and 21.2
The remaining interrogatories and requests for production were
addressed on the record, as were defendant’s objections.

Plaintiff also withdrew his motion as to the interrogatories
posed to defendant Del Mauro, and discontinued this action as
against Detective Del Mauro.
2

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As discussed at the conference, defendant’s objections to
many of plaintiff’s discovery requests are not sustainable, and
violate the discovery rules, particularly as revised in 2015.
See Fed. R. Civ. P. 26(b); Fed. R. Civ. P. 33(b)(4) (“The
grounds for objecting to an interrogatory must be stated with
specificity.”). Defendant interposes a “vague and ambiguous”
objection to almost every interrogatory, but at the conference,
defendant was unable to articulate any basis for these
objections. For example, plaintiff posed the following
Interrogatory to defendant Dirga: “When you saw this alleged
transaction, [were] you alone or with a partner?” [Doc. #53-1 at
4]. This is a simple and direct question. It assumes no facts
that are disputed. The “alleged transaction” at issue in this
case is clearly known to both parties. Yet, defendant lodged two
objections: “This request is vague and ambiguous[;]” and
“Assumes facts not in evidence.” Id. These objections are
plainly meritless. The same objections were lodged to the
question: “How many feet [were] between you and Mr. Brown and
the person making the transaction?” Id. Again, the objections
are meritless. Such baseless objections violate counsel’s
obligations under the Federal and Local Rules, and will not be
tolerated by the Court.
Where defendant Dirga did respond to an interrogatory, he
generally did so by directing plaintiff to records that were
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produced. This is an acceptable practice under Rule 33(d) of the
Federal Rules of Civil Procedure. However, a party electing to
use this approach must “specify[] the records that must be
reviewed [to ascertain the information sought], in sufficient
detail to enable the interrogating party to locate and identify
them as readily as the responding party could[.]” Fed. R. Civ.
P. 33(d)(1). Simply stating “see attached” and attaching
approximately 100 pages of materials is insufficient. See, e.g.,
Synventive Molding Sols., Inc. v. Husky Injection Molding Sys.,
Inc., 262 F.R.D. 365, 378 (D. Vt. 2009) (holding that “the
production of relevant Bates numbers is required” when
responding under Rule 33(d)(1)).
After review of all of the interrogatories and objections,
the Court rules as follows:


Plaintiff is granted leave to restate Interrogatories
10, 19 and 20, and to the extent he wishes to do so,
shall serve defendant with revised requests on or
before May 24, 2016.



Defendant Dirga shall supplement his responses to
Interrogatories 9, 12, and 13, and to the restated
Interrogatories 10, 19, and 20, if applicable, on or
before June 14, 2016. Defendant may identify the Bates
number of the document that provides the relevant

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answer, as well as simply providing a narrative answer
to the interrogatory.


Defendant’s objections are sustained as to
Interrogatories 8 and 15.



The Court finds that defendant’s responses to
Interrogatories 11, 14, 16, 17, and 18 are adequate.

Plaintiff also contends that defendant failed to produce
discovery responsive to his Requests for Production. Defendant
contends that he has provided substantially the entire police
file in this matter, which encompasses all responsive materials.
The only item apparently in dispute is a video. Specifically,
Request for Production 1 seeks, inter alia, “[c]opies of any and
all videos” and Request for Production 5 asks for “the video my
public defender Ron made the State get in his discovery.” [Doc.
# 53-1 at 16]. At the conference, counsel for the defendant
represented that he had no knowledge of any videos of the
incident in question. Plaintiff explained that his attorney in
the criminal matter underlying this action had informed him that
a surveillance video of the incident existed, and it is that
video he seeks. Counsel for the defendant represented that he
will contact the State’s Attorney and/or the Police Department
in an effort to obtain the video, and will produce it, if it can
be located.

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VI.

Conclusion
The Court strongly encourages the parties to meet and

confer, pursuant to D. Conn. L. R. Civ. 37, and to attempt
resolve any further discovery disputes that may arise without
the Court’s intervention.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 11th day of May
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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