Brannan v. Bridgeton Police Department et al

Filing 40

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for appointment of counsel 34 is DENIED without prejudice. IT IS FURTHER ORDERED that Defendants shall file their responses and/or objections to Plaintiff's request for production of documents no later than November 15, 2014. Plaintiff's Motion to Compel Production Discovery 35 is DENIED without prejudice. IT IS FINALLY ORDERED that Plaintiff's motion for leave to depose Defendants by written questions 38 is DENIED.. Signed by District Judge John A. Ross on 10/16/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HARRELL S. BRANNAN,

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Plaintiff,
v.
KEVIN FORCE, et al.,
Defendants.

No. 4:14-CV-60-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Appoint Counsel (Doc. No. 34),
Motion to Compel Production Discovery (Doc. No. 35), and Motion for Leave to Take
Depositions by Written Question. (Doc. No. 38) Defendants filed memoranda in opposition to
Plaintiff’s motions to appoint counsel and compel production. (Doc. Nos. 36, 37) Plaintiff did
not file a reply. No memorandum in opposition to Plaintiff’s motion for leave to take depositions
by written question was filed. The motions are, therefore, fully briefed and ready for disposition.
Motion for appointment of counsel
A review of the file indicates that Plaintiff first requested appointment of counsel on
March 3, 2014. (Doc. No. 9) Plaintiff’s request was considered in light of relevant factors, see
Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990) and Johnson v. Williams, 788 F.2d
1319, 1322-23 (8th Cir. 1986), and denied on March 25, 2014. (Doc. No. 10) Plaintiff filed a
second motion for appointment of counsel on June 2, 2014 stating that because he is
incarcerated, he has been unable to obtain depositions to support his claims of excessive force
and unlawful arrest. (Doc. No. 29) The Court instructed Plaintiff to be guided by the Federal
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Rules of Civil Procedure with respect to the discovery he wishes to pursue and denied his motion
without prejudice on July 10, 2014. (Doc. No. 31) In his current motion, Plaintiff again states he
cannot perfect his discovery without assistance of counsel. The Court finds nothing in the record
to cause it to reconsider its previous orders denying Plaintiff’s motions for appointment of
counsel. Plaintiff’s contentions regarding the accuracy of video surveillance footage has no
bearing on the complexity of this case. He admits to viewing the video and has demonstrated that
he is able to articulate and present his claims. Accordingly, the motion for appointment of
counsel will be denied without prejudice.
Motion to compel
In his motion, Plaintiff seeks the following production from Defendants:
Production No. 1: “Plaintiff seeks the medical technician name and records from
DePaul Hospital, who treated him, to prove force to arrest was over excessive and
violation of Eighth Amendment of U.S.C.A., cruel and unusual punishment.”
Production No. 2: Plaintiff seeks deposition, or any and all statements made by
defendants, which defendants intend to use as a defense in denying rise to plaintiff claims
of no probable cause, illegal arrest, and use of excessive force.”
Production No. 3: “Plaintiff seeks deposition or any and all statements made by
owner of car wash in regards to the accuracy of the video camera, and any detailed
information which defendants may have been apprised.”
Production No 4: “Plaintiff seeks records of any [sic] all participants, which
defendants intend to rely on in the event of trial, to dispute plaintiff claims, including any
statements made by any other officer of the Bridgeton Police Department, or anyone else
who will dispute plaintiff claims made to this Court.”
Production No. 5: “Plaintiff seek a full report of defendants submitted reports to
Parole Officer James Cashatt, in that these reports are coupled with false allegations
which gave rise to violation, and such reports are needed to prove there was no probable
cause for his arrest, which constituted the excessive force.”
The usual method to acquire documents from a party defendant, to the extent such documents

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exist, is to serve a request for production of documents on the party defendant pursuant to
Federal Rule of Civil Procedure 34. If that defendant fails to respond or objects to the document
production, and the plaintiff thinks that the defendant's failure to respond or objection is
improper, then the plaintiff can file a motion to compel discovery pursuant to Rule 37. Forest v.
Barnes Jewish Hosp., 2008 WL 957681, at *1 (E.D.Mo. Apr. 7, 2008) (citing Fisher v. Marubeni
Cotton Corp., 526 F.2d 1338, 1341 (8th Cir.1975) (“If ... a party fails to answer an interrogatory
submitted under Rule 33, or if a party, in response to a request for inspection submitted under
Rule 34, fails to respond ... the discovering party may move for an order compelling an answer ...
or an order compelling inspection in accordance with the request....”)).
Defendants argue Plaintiff’s motion does not meet the criteria set forth in Rule 37(a)
regarding the enforcement of discovery obligations in that it was filed without first requesting
discovery pursuant to Rule 34 and should, therefore, be denied. Plaintiff’s motion does not
appear to be an actual motion to compel but rather a request for production directed at
defendants.1 Accordingly, Defendants will be directed to respond to Plaintiff’s document
requests and the motion to compel will be denied without prejudice.
Motion for leave to take depositions by written questions
Plaintiff seeks leave of Court, as required by Rule 31(a)(2)(B), to take Defendants'
depositions on written questions. In support of his motion, Plaintiff asserts “there are questions
he has that have gone unanswered by [D]efendants and the witnesses for [D]efendants” such that

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“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion
and recharacterize the motion in order to place it within a different legal category.” See Grace v.
Hakala, 2012 WL 2190902, at *1 n.4 (E.D.Mo. Jun. 14, 2012) (quoting Castro v. United States,
540 U.S. 786, 791–92 (2003)).

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he cannot properly defend himself. Plaintiff has not submitted any proposed deposition questions
for Defendants.
The Court prefers that in obtaining discovery from other parties, pro se parties utilize
interrogatories rather than depositions upon written questions, as there are procedural and
logistical difficulties inherent in the Rule 31 mechanism which Plaintiff's motion does not take
into account. For example, the deposition must be taken before an officer who is to place the
witness under oath, record the witness' responses, either stenographically, by audiotape or
videotape, make the transcript or recording available to the witness for review if requested, and
then certify to Plaintiff that the witness was duly sworn and that the deposition is a true record of
the testimony given by the witness. See Rule 31(b); Rule 30(c), (e) and (f); 7 James Wm. Moore,
et al., Moore's Federal Practice, § 31.12 (3d ed.2009). Further, Plaintiff would be responsible
for the costs associated with a deposition on written questions, and he has not indicated that he is
willing or able to meet those costs. Stockdale v. Stockdale, 2009 WL 5103265, at *2 (E.D.Mo.
Dec. 17, 2009). For these reasons, Plaintiff’s motion will be denied.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for appointment of counsel [34] is
DENIED without prejudice.
IT IS FURTHER ORDERED that Defendants shall file their responses and/or
objections to Plaintiff’s request for production of documents no later than November 15, 2014.
Plaintiff’s Motion to Compel Production Discovery [35] is DENIED without prejudice.
IT IS FINALLY ORDERED that Plaintiff’s motion for leave to depose Defendants by
written questions [38] is DENIED.

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Dated this 16th day of October, 2014.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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