Reid v. Simmons, et al.

Opinion

Reid v. Simmons, et al. CV-89-152-M 12/03/97 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

Defendants filed a motion for summary judgment on October 6,

1997. When plaintiff did not file a response, or request extra

time within which to respond, within the time provided by rule,

the court, sua sponte, granted plaintiff additional time. The

additional twenty-day period allowed will expire on December 8,

1997, when plaintiff will have had approximately twice the

amount of time allowed by rule to respond to a motion for summary

judgment. In the meantime, on November 24, plaintiff filed a

motion for leave to file a brief in excess of twenty-five pages

and a motion for further discovery.

Plaintiff's request to file a brief longer than twenty-five

pages is granted. As the twenty-day period is about to expire

and plaintiff may have delayed his response in anticipation of

the court's action on his motions, the court anticipates that a

further extension may be necessary. Accordingly, the court

grants plaintiff ten additional days within which to file his

response to defendants motion for summary judgment. The filing deadline is Thursday, December 18, 1997. NO FURTHER EXTENSIONS

OF TIME WILL BE GRANTED.

In his motion for further discovery, plaintiff asks that

defendants be ordered to provide him with copies of "all pre­

appeal discovery documents and responses given to the plaintiff

prior to the appeal in the matter of Reid v. New Hampshire to the

extent that each . . . individual document has not been provided

to the plaintiff in the post-appeal discovery process."

Plaintiff also requests copies of all of defendants' responses to

his requests for admissions made before his appeal. In response,

defendants object to plaintiff's motion but include copies of all

of plaintiff's requests for admissions and for production of

documents and their responses.

Plaintiff seeks the protection of Federal Rule of Civil

Procedure 56(f).1 To avoid summary judgment under Rule 56(f),

however, the objecting party must "(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." Reid v. State

of New Hampshire, 56 F.3d 332, 341 (1st Cir. 1995) (internal

quotation omitted). Reid has failed to meet either prong of the

Rule 56(f) standard.

1Although plaintiff's discovery motion was filed after the time allowed to respond to defendants' motion for summary judgment, it was still within a "reasonable time" after receiving the motion. See Resolution Trust v. North Bridge Ass'n, 22 F.3d 1198, 1204 (1st Cir. 1994).

2 During the course of the past year, this court has issued a

series of orders addressing discovery issues in this case

including Reid's access to discovery materials acguired prior to

his appeal in 1993. The last order was issued in July. The

court has heard nothing further indicating that defendants did

not subseguently fully comply with Reid's discovery reguests as

modified by the court's orders. Based on the record, the court

concludes that plaintiff has been provided with all discoverable

materials including any pre-appeal discovery materials that he

did not already have. Plaintiff's motion for further discovery

does not provide any reason to believe that additional

discoverable materials exist, which have not already been

provided to him, nor does it explain why he did not seek these

materials during the past year (if indeed he was missing

materials that were not then provided to him) when he vigorously

pursued discovery in this case.

Conclusion

Plaintiff's motion to file a brief in excess of twenty-five

pages (document no. 248) is granted. Plaintiffs motion for

discovery (document no. 247) is denied. The deadline for

response to defendants' motion for summary judgment is extended

to Thursday, December 18, 1997, and will not be extended further.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

December 3, 1997

cc: Robert G. Whaland, Esq. Gordon C. Reid Ann F . Larney, Esq.