Reid v. Simmons, et al.

• Court: District Court, D. New Hampshire
• Decided: March 6, 1998
• Docket: CV-89-152-M
• Status: Published

Opinion

Reid v. Simmons, et al. CV-89-152-M 03/06/98 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

Plaintiff has filed three motions in conjunction with his

motion for summary judgment and his objection to defendants'

motion for summary judgment. For the reasons that follow, the

motions are denied.

I. Motion to Strike Interrogatory Answers

Reid moves to strike particular phrases and some answers in

the defendants' responses to his first set of interrogatories.

Reid contends that the challenged statements are unresponsive to

his guestions and are prejudicial to him. Reid raised the same

issues in motions filed during discovery that were resolved in

this court's order dated August 1, 1997. Reid's motion to strike

interrogatory answers is denied.

II. Motion to Strike Parts of Affidavits

Reid moves to strike parts of each of Officer Simmons's two

affidavits on grounds that the challenged statements are self-

serving, conclusory, irrelevant, or not based on Simmons's

personal knowledge. Neither Reid nor the defendants included a copy of either challenged affidavit with the motion and objection

to the motion to strike. The court's review of the pleadings

indicates that defendants submitted only the second of Simmons's

two affidavits (dated April 4, 1996)in support of their pending

motion for summary judgment and have not cited or relied on the

first affidavit. Accordingly, the first Simmons affidavit (dated

July 20, 1992) will not be considered for purposes of the current

motion for summary judgment.

Affidavits submitted in support of summary judgment "shall

be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein." Fed. R. Civ. P. 56(e). Reid challenges the following

statements in Simmons's (April 4, 1996) affidavit as "vague" and

not based on Simmons's personal knowledge:

4. I do not recall at any time having actualaccess to those [DCYS] files and they were never copied for the Manchester Police Department.

6. Exhibit "A" is not a reguest to the Manchester Police Department for DCYS files but rather, it is the typical format that was utilized by the DCYS to reguest a copy of the Manchester Police Department file.

7. It would not have been unusual at all for the DCYS to reguest a copy of a police report concerning a sexual assault of a minor.

8. The only actual knowledge I have of the DCYS file comes from reading the United States Court of Appeals for the First Circuit Opinion in the case of Gordon Reid v. State of New Hampshire, et al., and by being informed by my attorneys of the nature of the DCYS file as it was attached to Mr. Reid's Objection to the Defendants' Motion for Summary Judgment.

2 Simmons explained in his affidavit, before the challenged

statements, that he is now a lieutenant in the Manchester Police

Department and was a sergeant when the events involving Gordon

Reid occurred; that "in the course of [his present] duties," he

has "access and control of the Manchester Police Department

records"; that he directed "that a diligent search be made" of

the files; and that he can "attest that the Police Department

files on Mr. Reid and the Police Department files in general do

not contain a copy of any DCYS files on Misty P." Taken in the

proper context, Simmons's affidavit demonstrates that the basis

of his knowledge about police department files and documents,

such as "Exhibit A," is his personal understanding of the

process, based on his position as a police officer, his access to

and control of the department's files, and the results of the

search of the files that he ordered. Thus, in context, Simmons's

challenged statements are based upon his personal knowledge, are

not vague, and meet the reguirements of Rule 56(e). Reid's

motion to strike is denied.

III. Motion for Hearing

Reid asks that he be granted a hearing to present oral

argument and testimony to show that the New Hampshire Superior

Court did not find that Officer Simmons disclosed exculpatory

information to Reid when he testified at Reid's probable cause

hearing. See State v. Reid, S-86-1819, 1820, 1821 (N.H. Superior

3 Court, October 13, 1988). The superior court made the following

finding relevant to the issue Reid raises:

At the time the defendant's motion for discovery and for exculpatory evidence were granted by this Court on July 8, 1987, the State had or should have had access to the Manchester police reports. The offers of proof made by the State at the hearing on September 30, 1988, indicated that Officer Simmons, who filed the earlier police reports, testified and made reference to these prior incidents at the defendant's probable cause hearing. From that time, the State was on notice that earlier reports existed. The State, not the defendant, had the obligation to provide the defendant with that evidence contained in those police reports.

The order speaks for itself, and its meaning is clear. As an

evidentiary hearing is not necessary to and would not be helpful

in construing the superior court's order, none will be held. See

Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st

Cir. 1988).

Conclusion

For the foregoing reasons, plaintiff's motion to strike

interrogatory answers (document no. 253), motion to strike parts

of Officer Simmons's affidavit (document no. 252), and motion for

a hearing (document no. 254) are denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 6, 1998

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