WIDI v. MCNEIL et al

Filing 528

ORDER ON MOTION FOR DISCOVERY AND MOTION FOR RECONSIDERATION OF DISCOVERY ORDER By JUDGE JOHN A. WOODCOCK, JR. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.,
Plaintiff,
v.
PAUL MCNEIL, et al.,
Defendants.

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2:12-cv-00188-JAW

ORDER ON MOTION FOR DISCOVERY AND MOTION FOR
RECONSIDERATION OF DISCOVERY ORDER
The Court defers ruling on a plaintiff’s motion to compel discovery in order to
give the defendants an opportunity to respond to the issues raised in his motion. The
Court denies the plaintiff’s separately-filed motion for reconsideration of the
discovery order because the plaintiff is entitled to only limited discovery under
Federal Rule of Civil Procedure 56(d) in response to the defendants’ filing of a motion
for summary judgment.
I.

BACKGROUND
On October 13, 2017, the Court issued an order on discovery motions, deferring

final ruling on the motion until the parties conferred pursuant to Local Rule 26(b)
and reported to the Court. Order on Disc. Mot. (ECF No. 510). The genesis of this
motion is a motion for summary judgment that Agents Hickey and Grasso filed on
April 18, 2017. Stephen E. Hickey and Michael Grasso’s Mot. for Summ. J. on Count
VII of the Second Am. Compl. (ECF No. 428). In response, after getting an extension
of time within which to respond to the motion, Mr. Widi requested that Agents Hickey

and Grasso respond to a pending discovery request before he responded to the
pending motion. 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). The Agents objected to
responding to discovery until Mr. Widi complied with Federal Rule of Civil Procedure
56(d).

Stephen E. Hickey and Michael Grasso’s Status Report Regarding Pl.’s

Purported Disc. Reqs. (ECF No. 461). Mr. Widi filed a motion to compel discovery to
which he attached a discovery request for an extensive list of documents and other
information. Mot. to Compel Disc. (ECF No. 462). Agents Hickey and Grasso objected
to Mr. Widi’s discovery request. 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 Agents’ response. 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 and on August 7, 2017, the Agents replied to Mr. Widi’s response to their
motion for summary judgment. Opp’n to Hickey and Grasso’s Mot. for Summ. J. on
Count VII of the Second Am. Compl. (ECF No. 473); Stephen E. Hickey and Michael
Grasso’s Reply Br. in Support of Their Mot. for Summ. J. on Count VII of the Second
Am. Compl. (ECF No. 479).
On October 13, 2017, the Court issued an order, deferring a final ruling on Mr.
Widi’s motion to compel discovery until the parties had conferred about discovery and
reported back to the Court. Order on Disc. Mot. at 12 (ECF No. 510). On October 18,
2017, the Agents’ counsel filed a joint motion to extend the time to file a report to the

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Court for one week. Jt. Mot. for a One-Week Extension of the Deadline for Submitting
a Report of Local Rule 26(b) Conf. (ECF No. 514). Mr. Widi contacted the Clerk’s
Office and objected to the joint nature of the motion, leading the Court to issue yet
another order, noting that “the upshot is that Mr. Widi agreed to the filing of a joint
motion, and, once filed, decided to oppose it.” Order on Jt. Mot. to Extend (ECF No.
515). On October 26, 2017, the Court reset the due date at November 3, 2017 for the
report of counsel regarding the Local Rule 26(b) conference. Id. at 3.
On November 3, 2017, Agents Hickey and Grasso complied with the Court’s
order and filed a report of the Local Rule 26(b) conference. Defs.’ Report of Local Rule
26(b) Conf. (ECF No. 519) (Defs.’ Report). Mr. Widi did not comply in a timely fashion.
Instead, after being granted an extension of time, Mr. Widi prepared and filed a
motion for reconsideration of the discovery order. Mot. for Recons. of Order on Disc.
Mot. (ECF # 510) (ECF No. 518) (Mot. for Recons.). Finally, on November 5, 2017,
Mr. Widi filed his report of the Local Rule 26(b) conference. Pl.’s Report of Local Rule
26(b) Conf. (ECF No. 521) (Pl.’s Report).
II.

DISCUSSION
A.

Motion to Compel Discovery

In their report of the results of the Local Rule 26(b) conference, Agents Hickey
and Grasso noted that they assumed Mr. Widi had already been provided with
documentation during his criminal case and they inquired of Mr. Widi what
documents he already possessed. Defs.’ Report at 2. After some delay, Mr. Widi asked
them to assume he had no documents. Id. Counsel for Agents Hickey and Grasso

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produced two hundred and ten pages of documents to Mr. Widi on November 3, 2017.
Id.
In his late-filed report, Mr. Widi complains that the Defendants “have not
disclosed anything other than what was already provided to Mr. Widi during his
criminal case.” Pl.’s Report at 2. He asserts that the existence of other relevant
reports that had been produced by ATF was discussed during the FOIA litigation. Id.
(citing ECF No. 370:2). Mr. Widi also objects to the Defendants’ claim that they “do
not have” any other documents. Id. In his view, he is entitled to documents from
others if the Agents were “in privity” with other people or institutions who possess
the documents. Id. He urges the Court to revisit its January 10, 2017 order in which
it dismissed without prejudice a series of subpoenas that Mr. Widi moved to have
issued against a number of third parties, including the town of Eliot. Id. at 2; see
Mot. for Issuance of Subpoena (ECF No. 362); Order on Mot. for Recons. at 31 (ECF
No. 392).
Mr. Widi disputes the Agents’ assertion that they did not author any reports
because he contends ATF regulations require agents to file reports of any criminal
investigations. Id. at 3. Mr. Widi contends that the photo log submitted by the
Defendants in this case differs from the photo log generated during the search. Id.
(citing ECF No. 429-5:11 and ECF No. 473-4).

Mr. Widi says that one of the

photographs taken during the search shows a photo log with entirely different entries
than the one now proffered by the defendants and accuses the Agents of making
“patently false” representations. Id.

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Mr. Widi maintains that the Agents have not attempted to resolve the
discovery issues in good faith and argues that this Court should grant the motion to
compel discovery and any further relief deemed just including the issuance of third
party subpoenas against the town of Eliot and the United States. Id.
B.

Motion for Reconsideration

In his motion for reconsideration, Mr. Widi recites his own version of the
history of this complicated case. Mot. for Recons. at 1-11. He insists that the Court
erred in forcing him to litigate motions for summary judgment without discovery and
argues that the Court’s order, which allowed him limited discovery under Rule 56(d),
compounded the Court’s error. Id. at 6. Mr. Widi says that his complaint should have
been treated the same way the Court treats other civil actions. Id. at 7 (quoting
Levecque v. Argo Mktg. Group, No. 2:14-cv-00218-JAW, 2015 U.S. Dist. LEXIS 23566,
at *23 (D. Me. Feb. 25, 2015)). Mr. Widi contends that he should be entitled to engage
in full discovery against Agents Hickey and Grasso before facing a motion for
summary judgment. Id. at 7-11.
First, the Court observes that Mr. Widi has filed a motion to reconsider an
order that deferred a final decision. Technically, he should have waited until a final
order before moving to reconsider because the final order may have given him less to
object about.
Putting that aside, the difference between Mr. Widi’s case and a typical civil
action is that—with exceptions not relevant here—his lawsuit is against governments
and governmental officials, specifically law enforcement personnel, who enjoy the

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benefits of qualified immunity. In 1982, the United States Supreme Court decided
Harlow v. Fitzgerald, 457 U.S. 800 (1982), which held that “government officials
performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id. at 818.
Significantly, the Harlow Court wrote that “bare allegations of malice should not
suffice to subject government officials either to the costs of trial or to the burdens of
broad-reaching discovery.” Id. Thus, “[u]ntil this threshold immunity question is
resolved, discovery should not be allowed.” Id.
In Hegarty v. Somerset County, 25 F.3d 17 (1st Cir. 1994), the Court of Appeals
for the First Circuit, addressing the granting of a motion for summary judgment in
favor of the officers, declined to allow discovery to proceed against the officers while
an interlocutory appeal on the immunity issue was before the appellate court. Id. at
18. The Hegarty Court observed that “immunity from suit includes protection from
the burdens of discovery.” Id. The First Circuit also noted that the district court in
that case “prior to its ruling on the issue of qualified immunity, properly ordered some
discovery limited to that issue.” Id. (emphasis in original). It cited the United States
Supreme Court case of Anderson v. Creighton, 483 U.S. 635 (1987), for the proposition
that “discovery tailored specifically to the question of qualified immunity may be
necessary before a motion for summary judgment on qualified immunity grounds can
be resolved.” Hegarty, 25 F.3d at 18 (citing Anderson, 483 U.S. at 646 n.6).

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Here, Agents Hickey and Grasso both raised qualified immunity as an
affirmative defense.

Stephen E. Hickey, Jr.’s Ans. to Second Am. Compl. and

Affirmative Defenses at 29 (ECF No. 424); Michael Grasso’s Ans. to Second Am.
Compl. and Affirmative Defenses at 28 (ECF No. 425) (“Defendant is entitled to
qualified immunity”). Therefore, Mr. Widi has not been entitled to discovery in the
initial stages of the lawsuit.
After the Agents filed a motion for summary judgment and Mr. Widi requested
discovery, the Court was willing to allow some discovery, especially since the Agents’
motion was not grounded on qualified immunity and instead is based on the Agents’
factual assertion that the motorcycle was in plain view when they came upon it. See
Stephen E. Hickey and Michael Grasso’s Mot. for Summ. J. on Count VII of the Second
Am. Compl. at 4-5 (ECF No. 428). This is where Federal Rule of Civil Procedure 56(d)
comes into play. Agents Hickey and Grasso filed their motion for summary judgment
based on a very narrow factual issue: whether the door of the grey trailer was open
when they came upon it and photographed it. As the Court explained in its October
13, 2017 order, Rule 56(d) is typically invoked after the discovery period has lapsed,
but not necessarily. Order on Disc. Mot. at 10 (ECF No. 510) (citing Donovan v. Fowle,
No. 1:09-cv-00328-JAW, 2010 U.S. Dist. LEXIS 43675, at *2 n.1 (D. Me. May 3, 2010)).
Here, the Agents have placed a singular factual issue before the Court and under
Rule 56(d), it makes sense that Mr. Widi be allowed some discovery on that issue
alone.

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The Court explained all of this in its October 13, 2017 order. Id. at 9-12. This
is why the Court ordered Mr. Widi to confer with counsel for the Agents to determine
whether the parties could come to an agreement on a limited subset of discovery.
However, Mr. Widi filed a late response to that order and elected instead to file an
extensive motion, insisting that he is entitled to complete and unfettered discovery.
He is not. Moreover, instead of strictly complying in good faith with the Court order,
Mr. Widi again chose to attack the Court’s integrity. Pl.’s Mot. at 9 (“The fact of the
matter is that for five years this Court has been attempting to prevent Mr. Widi’s
claims from moving forward. The Court has not been concerned with getting to the
truth of the matter, otherwise it would have allowed discovery a long time ago”). If
an attorney filed a late response to a court order and in the interim filed an extensive
motion attacking the integrity of the court, the court would consider sanctions.
Nevertheless, the Court recognizes that Mr. Widi, as a pro se litigant, may not
have understood that discovery is typically limited in cases involving government
entities and government officials and that Rule 56(d) allows a court to narrow
discovery upon the filing of a motion for summary judgment, whenever the motion is
filed. Furthermore, the Agents have not had an opportunity to respond to Mr. Widi’s
most recent filing, namely his report of the Local Rule 26(b) conference, and the Court
will allow the Agents time to make a formal response.

The Court ORDERS

Defendants Hickey and Grasso to file a response to Mr. Widi’s November 5, 2017
response within two weeks from the date of this order.

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In summary, for the parties’ benefit, because the Agents filed a motion for
summary judgment based on an assertion of non-disputed facts, not on an assertion
of qualified immunity, the Court will allow Mr. Widi some discovery on the narrow
factual issue presented by the motion.
Finally, if the Agents do not prevail in their pending motion, Mr. Widi will be
allowed to proceed with discovery in accordance with the Scheduling Order the Court
issued on October 13, 2017. Scheduling Order (ECF No. 512).
III.

CONCLUSION
The Court DEFERS action on David J. Widi, Jr.’s Motion to Compel Discovery

(ECF No. 462), ORDERS Defendants to respond to David J. Widi’s Report of Local
Rule 26(b) Conference within two weeks of the date of this order, and DENIES his
Motion for Reconsideration of Order on Discovery Motion (ECF # 510) (ECF No. 518).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2017

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