Reid v. Simmons, et al.

Opinion

Reid v. Simmons, et al. CV-89-152-M 08/22/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gordon C. Reid

v. Civil No. 89-152-M

Officers Gary Simmons, Ronald Paul, James Ahern, and Richard Gilman

O R D E R

Gordon Reid has filed two motions pertaining to his ongoing

discovery and one motion for "clarification of claims." The

motions are resolved as follows.

1. Motion for Imposition of Sanctions(III) Document No. 230

Reid contends that four copies of documents attached to

interrogatory answers by defendants are illegible, and argues

that defendants are acting in bad faith to delaydiscovery. He

asks that defendants be sanctioned by precluding them from

denying that they knew the contents of the DCYF file (presumably

referring to the time of his arrest). The defendants, through

counsel, respond that the copies of documents that they provided

are the best copies that could be obtained from the microfilm

source of the documents. The defendants also point out that

although the documents are difficult to read, they are legible.

The court agrees that the four pages Reid attached to his

motion are dark and difficult to read but are not illegible. If

those are the best available copies, no bad faith or intentional

obstruction of discovery can be inferred from defendants' use of the copies. Consequently, Reid's motion for sanctions (document

no. 230) is denied.

2. Motion to Compel Further Response to Subpoena

Duces Tecum (III) Document No. 228

In response to this court's order, DCYF provided its file

pertaining to Misty P. (and members of her family) to Reid. When

parts of the DCYF file seemed to be missing from the documents

provided to Reid, he moved to compel production of additional

materials, which motion was partly granted. DCYF has now

responded by providing copies of previously withheld police

reports and explaining in a letter from Ann Larney, Assistant

Attorney General, and an attached affidavit by Rogers Lang, DCYF

Legal Coordinator, that any other documents that might have been

in the file have probably been destroyed due to the age of the

file. The affidavit provides details of DCYF's procedures and

practices with respect to handling case files. Nothing further

is required.

Accordingly, Reid's motion to compel (document no. 228) is

denied.

3. Motion for Clarification of Claims

Reid moves to clarify his remaining claims against

defendants in light of the First Circuit's disposition in Reid v.

State of New Hampshire, 56 F.3d 332 (1st Cir. 1995) . That

appellate opinion first interpreted Reid's third amended

2 complaint to state claims against the police defendants for

"negligence, false arrest, malicious prosecution, wrongful

withholding of exculpatory evidence, and conspiracy." Id. at

336. The opinion then construed the false arrest and malicious

prosecution claims as state tort claims, and construed only the

withholding exculpatory evidence assertion as a federal due

process claim. Id. at 341. The opinion concludes by stating:

"We vacate the judgment entered in favor of the police

defendants, Simmons, Gilman, Ahern and Paul, on the false arrest,

malicious prosecution, and due process claims, and remand all

claims against the police defendants for further proceedings,

including reasonable discovery." Id. at 343. The mandate

remanding the case to this court reiterates the opinion's

language.

Although this court has proceeded under the assumption that

Reid's remaining claims were those upon which judgment was

vacated, the appellate opinion in Reid is sufficiently unclear

that it could be interpreted to remand his claims for negligence

and civil conspiracy as well. Reid has indicated in his present

motion his desire to pursue state law negligence and civil

conspiracy claims.1 Accordingly, the court will broadly construe

Reid's remaining claims against the four police defendants to

1 Reid also argues that he alleged "other State Constitutional claims" in his third amended complaint that survive in this action. However, as the First Circuit did not apparently find any such claims viable, or recognizably pled, no state constitutional claims, whether or not such claims were alleged in the third amended complaint, remain in this action. See Reid, 56 F.2d at 336.

3 include a negligence and a civil conspiracy claim in addition to

state law false arrest and malicious prosecution claims and a

federal due process "Brady" claim.

Reid's motion for clarification (document no. 229) is thus

granted in part, as explained herein.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 22, 19 97

cc: Robert G. Whaland, Esg. Gordon C. Reid Carolyn M. Kirby, Esg. Ann F. Larney, Esg.