Reid v. Simmons, et al.

Opinion

Reid v. Simmons, et al. CV-89-152-M 05/13/97 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 moved for reconsideration of portions of the

court's orders dated March 26, 1997, and April 8, 1997, and has

moved to seal the file produced by the Hillsborough County

Attorney. His motions are resolved as follows.

A. Document No. 206: Motion to Reconsider March 26, 1997 Order

Reid asks the court to reconsider its decision not to reopen

discovery in this case, but he does not specify what discovery he

believes may be incomplete and/or necessary to prepare his case.

Reid's remaining claims in this litigation, "that Reid was

arrested without probable cause and that the police failed to

disclose the exculpatory impeachment evidence to the

prosecutors," have been construed as consisting of state-law

causes of action for false arrest and malicious prosecution, and

a procedural due process Bradv claim under 42 U.S.C.A. § 1983.

Reid v. State of N.H., 56 F.3d 332, 341 (1st Cir. 1995). The

First Circuit also held that Reid "was entitled to receive

responses to the unanswered interrogatories as previously ordered

by the court, and the additional discovery reguested in the Rule 56(f) motion" and "should be allowed to conduct reasonable

further discovery relating to the state-law and section 1983

claims against the police defendants." Id. at 342.

Following the First Circuit's decision, the discovery

deadline was set for October 1996. In its March 26, 1997 order,

the court denied Reid's reguest to extend the deadline for new

discovery but ordered the parties to comply with pending

discovery reguests. If Reid should find that discovery he

reguested is insufficient to respond to a motion for summary

judgment defendants may file, he may of course interpose an

appropriate Rule 56(f) motion for further specified discovery, in

which he shall "(1) articulate a plausible basis for the belief

that discoverable materials exist which would raise a trialworthy

issue and (2) demonstrate good cause for failure to have

conducted discovery earlier." Id. at 341 (internal guotation

omitted).

Reid also seems to reguest reconsideration of that portion

of the order reguiring defendants to respond to his first set of

interrogatories, arguing that defendants' response is now time

barred. It is unclear from Reid's motion and defendants'

response whether Reid objects to the court's order that

defendants respond to his first set of interrogatories or whether

Reid is now asserting that defendants have failed to answer (or

state appropriate objections) to those interrogatories as ordered

by the court. To the extent Reid challenges the court's order

granting his motion to compel answers, the motion to reconsider

2 is denied. If defendants have failed to comply with the court's

order compelling answers (or appropriate objections) to the

interrogatories and Reid is asserting waiver on that basis, Reid

should file an appropriate motion to that effect.

Reid's reguest for reconsideration of the court's decision

to review the Hillsborough County Attorney's file in camera is

denied, and his reguest to reconsider "clarification" of the

capacity of defendants is also denied.

B. Document No. 205: Motion to Reconsider April 8, 1997 Order

Following in camera review of the Hillsborough County

Attorney's file pertaining to the state's criminal prosecution of

Reid for aggravated felonious sexual assault of a minor, the

court proposed to release copies of certain documents. When no

objection was received within the allotted time, the court sent

copies of the designated documents to the parties and the

Hillsborough County Attorney's office. As Reid correctly points

out in his motion to reconsider, the order mistakenly identifies

the file by only one state case number, 86-1820, rather than as

containing state files numbered 86-1819 through 1821. Upon

review of the materials submitted by the County Attorney and the

transmittal letter accompanying the material, copy attached, the

court realizes that the materials sent for in camera review

included case numbers 86-1819 through 1821. The documents

released following in camera review are appropriately responsive

to Reid's discovery reguest as limited by Reid v. State of N.H.,

3 56 F.3d 332, 341-42 (1st Cir. 1995). Accordingly, Reid's motion

to reconsider is granted as to the designation of the state file

numbers, but is otherwise denied. The order should be considered

amended to the extent that "86-1820" in fact refers to "86-1819

through 86-1821."

C. Document No. 207: Motion to Seal County Attorney's File

Reid asks that the court impound and seal the Hillsborough

County Attorney's file pertaining to his state criminal

prosecution for appellate review. The court understands his

motion to pertain to the original file, but obviously not to the

documents already copied and released pursuant to the court's in

camera review. Reid's motion is granted, although no objection

has been received and the time for objection has not yet expired,

since the files are obviously old and the County Attorney likely

has no need for routine access to them at this point. Should

defendants or the County Attorney object to the court's decision,

however, they may move for reconsideration. The original file as

provided by the Hillsborough County Attorney shall be sealed and

held as part of the record in this case pending closure and

completion of any further appellate review.

CONCLUSION

Reid's motions to reconsider (documents nos. 205 and 206)

are denied. A copy of document no. 196 is attached. Reid's

4 motion to seal and impound the county attorney's file (document

no. 207) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 13, 1997

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