O'Brien v. Barrows et al

Filing 66

OPINION AND ORDER: Pltf's 43 Motion to Compel and 47 Amended Motion to Compel are DENIED. Pltf's 58 Motion for Appointment of Counsel and 62 Amended Motion for Appointment of Counsel are also DENIED. Pltf's 51 Motion for Exte nsion of Time in which to file a reply memorandum is GRANTED. The parties' 52 and 61 Motions for Extensions of the Discovery Schedule are DENIED as moot, as is dfts' 63 Motion to Stay Discovery. 65 Stipulated Motion to Stay Discovery is GRANTED. Parties shall submit a revised Stipulated Discovery Schedule within 30 days of the date of this Order. Signed by District Judge J. Garvan Murtha on 6/28/2011. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Kelley S. O’Brien,
Plaintiff,
v.

:
:
:
:
:
:
:
:
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:
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Robert Barrows, James
Warden, Shelburne Police
Department, Town Manager
of the Town of Shelburne,
Town of Shelburne,
Defendants.

File No. 1:10-cv-173-jgm

OPINION AND ORDER
(Docs. 43, 47, 51, 52, 58, 61, 62, 63 and 65)
Plaintiff Kelley O’Brien, a Vermont inmate proceeding pro
se, brings this action claiming that he was shot by a member
of the Shelburne Police Department, and that the shooting
constituted excessive force.

Before the Court are a series of

discovery-related motions, including O’Brien’s amended motion
to compel discovery responses.

O’Brien also has renewed his

request for court-appointed counsel.

Because his request for

an attorney has reportedly put a “halt to discovery,” the
parties have asked for leave to file a revised discovery
schedule.
I.

Motion to Compel
O’Brien has moved to compel Defendant Robert Barrows, the

officer who allegedly shot him, to supplement his discovery
responses.

The first discovery request at issue is O’Brien’s

third interrogatory, which seeks information about “other
civil lawsuits” to which Barrows has been a party.

Barrows

responds that he has been involved in a divorce action and a
small claims action, and otherwise objects to the
interrogatory to the extent that it might be seeking
confidential claims or complaints submitted to the Shelburne
Police Department.
O’Brien argues that Barrows’ response is insufficient,
and suspects that Barrows may have been involved in other
lawsuits regarding “negligent or unreasonable conduct while on
duty as a law enforcement officer/agent.”

(Doc. 47 at 2-3.)

Barrows’ counsel has made clear, however, that Barrows “has
only been involved in the lawsuits listed in his response to
[O’Brien’s] Interrogatory No. 3.”

(Doc. 43-6 at 3.)

There is

therefore no basis for compelling a further response.
Interrogatory Number 5 asks Barrows to list “any forms of
employment misconduct you were in [sic] or during your
employment with another Department as a law enforcement
officer.”

(Doc. 47 at 3.)

Barrows objects to the question,

characterizing it as overly broad and asserting that certain
information, such as internal affairs or personnel files,
would be confidential.

Notwithstanding the objection, Barrows

reports that he has no knowledge of any such complaints.
Given this latter statement, O’Brien’s claim of evasiveness
appears to be unfounded, and the Court will not order a
supplemental response.

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O’Brien also moves to compel responses to several
document requests.

In Document Request Number 2, he asks for

“all correspondence or communications transmitted between the
defendant and any other party concerning or relating to this
action or the underlying events thereof.”

(Doc. 47 at 4.)

Barrows objects to the extent such communications are
privileged, and has reportedly provided O’Brien with all other
responsive documents.

Specifically, Barrows states he has

provided his “narrative,” a “Use of Force report,” and
documents received via subpoena from the Chittenden County
State’s Attorney’s Office.

The subpoenaed materials

reportedly consist of “over 800 pages of documents and several
compact discs contained in the State’s Attorney’s file,” and
include “numerous investigative reports, search warrants,
witness statements, photographs and deposition transcripts.”
(Doc. 46 at 6.)
O’Brien contends that Barrows has failed to provide all
responsive communications, citing investigation reports
generated by the Vermont State Police and the Vermont Attorney
General’s Office.

Barrows responds that he is not in

possession of any such reports, aside from what was obtained
from the State’s Attorney’s Office.

Barrows also states that

he is no longer employed by the Shelburne Police Department,
and thus has no access to “any files, log books, internal

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memorandum, etc. that may or may not exist.”

(Doc. 46 at 6.)

Given Barrows’ representations, the Court again sees no basis
for compelling a further response.
Request Number 3 asks for documents relating to witness
statements or statements by people with knowledge of the
relevant events.

As with Request Number 2, Barrows reports

that he is not in possession of any such documents aside from
what was provided to him by the Chittenden County State’s
Attorney’s Office.

In light of this response, and despite

O’Brien’s claim that Barrows must be in possession of “interdepartment communications” and other investigative reports,
(Doc. 47 at 5-6), it appears that there is nothing further to
compel from this Defendant.
Request Number 6 seeks “[a]ll generated reports of any
kind, or any other information otherwise forwarded to the
Vermont Attorney General from the Shelburne police department
or other department so employed, or to the Vermont Attorney
General on the incident in question[] in the complaint.”
(Doc. 47 at 7.)

Barrows again responds that he is not in

possession of these documents, aside from what he received
from the State’s Attorney’s Office and produced to O’Brien
previously.

As Barrows’ attorney explained in correspondence

to O’Brien, “[a]ny documents forwarded to the Vermont Attorney
General’s Office from the Shelburne Police Department or any

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other police Department . . . would be in the possession of
those agencies and are not in Defendant Barrows’ possession.”
(Doc. 43-6 at 5.)
O’Brien’s Document Request Number 12 asks for Vermont Law
Enforcement Academy manuals, policies, and education materials
relating to the use of deadly force.

Barrows objects to the

request as overly broad, and responds that these documents are
“not in my possession and would be in the possession, custody
and control of the Vermont Police Academy, the Vermont State
Police, the Shelburne Police Department and the Vermont
Attorney General’s Office.”

(Doc. 47 at 8.)

In subsequent

correspondence, Barrows’ counsel also informed O’Brien that
his client “has provided you with his training records.”
(Doc. 43-6 at 6.)
O’Brien insists that Barrows is “very well in possession
of these documents,” citing the importance of continuing
education in law enforcement.

(Doc. 47 at 8.)

provides no factual basis for such speculation.

However, he
Once again,

given the representations by Barrows and counsel that no such
documents are in Barrows’ possession aside from what has
already been produced, the Court sees no grounds for ordering
a supplemental response.
Finally, O’Brien moves to compel a response to his
request for Barrows’ medical records.

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When O’Brien filed his

first motion to compel (Doc. 43), the records had not been
provided.

The first motion to compel was signed on February

11, 2011, and was filed on February 17, 2011.

Barrows’

counsel sent O’Brien the medical records on February 14, 2011.
Accordingly, Barrows now argues that the motion to compel is
moot.
In his amended motion to compel, filed on March 8, 2011,
O’Brien complains that some of the medical records are
redacted.

Barrows objects to the motion, in part because

O’Brien allegedly failed to make a good faith effort to
resolve the issue as required by Local Rule 26(d)(1).

Barrows

also explains that the redacted portion pertained to an
unrelated injury.

(Doc. 50 at 4.)

Nonetheless, in an effort

to “alleviate [O’Brien’s] concerns,” Barrows’ counsel mailed
O’Brien the unredacted document so that he could see that no
relevant information was being withheld.

(Doc. 50-1 at 2.)

The Court therefore finds that the motion to compel with
regard to Document Request Number 18 is now moot.1

1

O’Brien still maintains that the medical records are
incomplete, claiming that they include only a summary of the
emergency room nurses’ evaluation, and nothing about the
attending physician’s review or follow-up appointments. (Doc.
57 at 4-5.) In fact, the records include the “Physician
Summary” completed by the emergency room physician. That
physician prescribed medications, and there is no indication
of any required follow-up. (Doc. 47-1 at 6-7.)
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For each of the reasons set forth above, O’Brien’s motion
to compel (Doc. 43) and amended motion to compel (Doc. 47) are
DENIED.
II.

Motion to Appoint Counsel
Also before the Court is O’Brien’s second motion, and an

amended second motion, for appointment of counsel.

As the

Court explained in its prior Order denying, without prejudice,
O’Brien’s motion for appointment of counsel, a litigant in a
civil case has no constitutional right to counsel.

See In re

Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).

A court

may “request an attorney to represent any person unable to
afford counsel,” 28 U.S.C. § 1915(e)(1), but cannot compel an
attorney to accept a civil case pro bono.

Mallard v. U.S.

Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301-02
(1989).
When a court considers whether to ask an attorney to
represent a pro se litigant, it must first determine whether
the litigant’s position seems “likely to be of substance.”
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989);
see also Ferrelli v. River Manor Health Care Ctr., 323 F.3d
196, 204-05 (2d Cir. 2003); Hodge v. Police Officers, 802 F.2d
58, 61 (2d Cir. 1986).

Only if a litigant’s claims meet this

“threshold requirement,” should a court consider other
factors, such as his “ability to handle the case without

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assistance in light of the required factual investigation,
[and] the complexity of the legal issues. . . .”
F.2d at 172.

Cooper, 877

Specifically, the factors to be considered

include: (1) whether the indigent’s claims seem likely to be
of substance; (2) whether the indigent is able to investigate
the crucial facts concerning his claim; (3) whether
conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
fact finder; (4) whether the legal issues involved are
complex; and (5) whether there are any special reasons why
appointment of counsel would be more likely to lead to a just
determination.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d

Cir. 1997); see also Hodge, 802 F.2d at 61-62.
The Court denied O’Brien’s prior motion for counsel,
finding that he had not satisfied the Hendricks factors.
Unlike his first motion, O’Brien’s recent filings discuss
those factors and argue that they have been met.

His primary

argument is that, as a prison inmate, it is difficult to
research and investigate his claims.

While the Court is not

unsympathetic to the challenges of bringing litigation while
incarcerated, those challenges are common to all inmates, and
standing alone, do not compel the Court to appoint an
attorney.

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Furthermore, O’Brien has not demonstrated any
developments in the case that would justify altering the
Court’s previous analysis of the Hendricks factors.

In its

prior ruling, the Court questioned the merits of O’Brien’s
claims in light of the fact that his Complaint makes no
mention of his arrest for aggravated assault on a law
enforcement officer.

This concern is still present.

As to

the need for an investigation, it appears that O’Brien’s
shooting was the subject of significant investigation by the
State Police, and possibly others, and that the results of
those investigations may become part of the record without any
further efforts by the parties.
With regard to legal complexity, the Court’s previous
finding – that the issue of excessive force is not
particularly complex – still holds true.

Finally, the Court

sees no “special reason . . . why appointment of counsel
[will] be more likely to lead to a just determination."
Hodge, 802 F.2d at 62.

Accordingly, O’Brien’s motion for

appointment of counsel (Doc. 58) and amended motion for
appointment of counsel (Doc. 62) are DENIED, again without
prejudice.

If, as the case proceeds, O’Brien finds that he

can meet the standard for appointment of counsel, he may file
another motion for the Court’s consideration.

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III.

Remaining Motions
All other pending motions pertain to Court deadlines.

First, O’Brien’s motion (Doc. 51) for an extension of time to
file his reply memorandum regarding the motion to compel
(which memorandum the Court has since received) is GRANTED.
Next, all motions regarding extensions of the discovery
schedule are DENIED, with the exception of the latest motion,
which asks for a stay of discovery and leave to file a new
discovery schedule within 30 days of the Court’s Order on
O’Brien’s motions for appointment of counsel.

This latter

motion (Doc. 65) is GRANTED, and the parties shall submit to
the Court a Stipulated Discovery Schedule within 30 days.
Conclusion
For the reasons set forth above, O’Brien’s motion to
compel (Doc. 43) and amended motion to compel (Doc. 47) are
DENIED.

His motion for appointment of counsel (Doc. 58) and

amended motion for appointment of counsel (Doc. 62) are also
DENIED.

O’Brien’s motion for extension of time in which to

file a reply memorandum (Doc. 51) is GRANTED.
The parties’ motions for extensions of the discovery
schedule (Docs. 52 and 61) are DENIED as moot, as is Barrows’
first motion to stay discovery (Doc. 63).

The stipulated

motion to stay discovery (Doc. 65) is GRANTED.

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The parties

shall submit a revised Stipulated Discovery Schedule within 30
days of the date of this Order.
Dated at Brattleboro, in the District of Vermont, this
28th day of June, 2011.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
District Judge

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