Clarke v. Blais

• Court: U.S. District Court — District of Maine
• Writing for the Court: Hornby
• Citation: Clarke v. Blais, 473 F.Supp.2d 124 (D. Me. 2007)
• Decision Date: 12 February 2007
• Docket Number: Civil No. 05-177-P-H.
• Parties: Steven CLARKE, Plaintiff v. Michael BLAIS, et al., Defendant.

Page 124

473 F.Supp.2d 124

Steven CLARKE, Plaintiff v. Michael BLAIS, et al., Defendant.

Civil No. 05-177-P-H.

United States District Court, D. Maine.

February 12, 2007.

Steven Clarke, Warren, ME, Pro se.

Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, Daniel Rapaport, Sigmund D. Schutz, Preti, Flaherty, Beliveau, Pachios & Haley, LLP Portland, ME, for Defendants.

ORDER ACCEPTING IN PART AND REJECTING IN PART THE REOMMENDED DECISION OF THE MAGISTRATE JUDGE

HORNBY, District Judge.

In this case, the plaintiff seeks damages from Knox County jail personnel for events that occurred while he was in pretrial detention. He claims that jail guards subjected him to excessive force.¹ He also claims that the physician's assistant who provided medical services at the jail failed to give him proper treatment for his hepatitis C (he wanted to be started on antiviral therapy) and hypoglycemia, and failed to prescribe Seroquel for his mental health issues. He has asserted both federal and state claims.

This is a troubling case procedurally. The plaintiff is a prisoner with medical and mental health issues. He has requested the court to appoint a lawyer to represent him several times during this lawsuit and each time has been turned down, including during the summary judgment proceeding. Although the court is authorized to request a lawyer to represent an indigent prisoner under 28 U.S.C. § 1915(e)(1), there are no funds appropriated to pay a lawyer or even to reimburse a lawyer's expenses. As a result, such appointments occur very rarely,² being saved for cases that appear to have some chance of success. In this case, the Magistrate Judge concluded that the case was not legally or factually complex, an assessment with which I agreed. She therefore refused appointment of a lawyer for the early stages (and I upheld her decision on appeal), reserving judgment on whether appointment would be appropriate if the case were to proceed to trial.

After a removal of a default by one of the defendants, discovery, and various disputes that the Magistrate Judge had to resolve, the defendants all moved for summary judgment. It is not uncommon to heir discussions at lawyers' meetings about the complexities of the summary judgment rules, how they trip up lawyers and the dire consequences that ensue. It should not be surprising, then, that an unrepresented litigant might find those rules challenging.³ That is what happened here. The plaintiff responded to the defendants' two motions for summary judgment and even filed an amended response to one of them when that defendant's reply revealed that there might be difficulties with the plaintiff's initial response. But he clearly did note follow the local rules, and as a result the Magistrate Judge treated as fact all the defendants' assertions. In doing so, she followed the Local Rule precisely, because a failure properly to counter the defendants' supported statements of material facts determines what the facts are. Local Rule 56(f). From there, it was just a short step to recommending that the defendants be granted summary judgment because, on those facts, the law was clearly in their favor.

With respect to the physician's assistant and with respect to the medical treatment that the plaintiff received, I ACCEPT the Magistrate Judge's recommendation of judgment for the defendants because, even if I entertain everything that the plaintiff has filed and overlook his Rule violations, it is clear that he has no viable claim.⁴

But the excessive force claim is different.⁵ The plaintiff filed an affidavit with his Amended Complaint that should have made clear there could be no successful motion for summary judgment against him on his excessive force claim, even based upon qualified immunity for the officers. His sworn version of the events, if accepted as true, would foreclose qualified immunity. In, addition, the defendants filed with their motion for summary judgment the plaintiff's own deposition where his sworn testimony directly contradicts the officers' affidavits of what happened. This is hardly "evidence in the wings that the non-movant wants the opportunity to present to a jury." Defs.' Response to Pl.'s Objection to Recommended Decision at 6 (Docket Item 109). With the plaintiff's deposition in hand, I am baffled that the defendants' lawyer even filed a summary judgment motion on the excessive force claim or that he could "contend[ ] there is no genuine issue of material fact to be tried." Local Rule 56(b).⁶ Here are excerpts from the plaintiff's deposition (under questioning by the defendants' lawyer):

Q. At any point in time, did you slam your hands on the booking desk counter?

A. I placed my hands on the counter.⁷

Q. Did you lunge forward with both arms towards where Blais was standing?

A. No.

. . . . .

Q. At any point, did you attempt to resist or stop the process?

A. No, no, I did not.

Q. At some point, did the officers that were-I'm assuming from what you're saying, you continued to walk and you're on your way to the cell and they're not having any problems getting you there; correct?

A. There was no problem.

. . . . .

Q. The question is: After you closed the cell door to 126, Blais is escorting you into the cell. Does he move you aside so he can open the door to 126?

A. No. He held onto me and he opened the door and then pushed me into the cell.

Q. At that time, did you charge at him?

A. No.

Q. When he opened the cell door and put you in, Monk, Dearborn, Stone, Smith and Gracie are all there, correct?

A. At that point, yes.

Q. They put you in the cell, you don't charge at them but they went in and restrained and handcuffed you, correct?

A. No, they tackled me after I was in the cell.

Q. So they put you down into a prone position and applied restraints to you, correct?

A. Explain prone.

Q. Down on the ground.

A. They tackled me and I was on the ground, yes.

Q. And they cuffed you and put leg irons on you too?

A. No.

Q. Four point restraints or just two point?

A. Not at that point. That's when the assault happened, when I was on the floor.

Q. Say that again.

A. I was on the floor, and I was being choked and hit and kicked and kneed and sworn at and then I was cuffed.

Q. Who was choking you?

A. Mank.

Q. And who was kicking you?

A. That would be Blais and Stone.

Q. What was Gracie doing?

A. I heard Blais tell her to put the cuffs on, she was trying, but they

Q. Were you resisting?

A. No. They had my arms twisted in so many different directions, and they couldn't bring my arms together because they were wrestling each other.

Q. At any point in time, did you resist?

A. No.

Q. Did you ever refuse to go into the cell?

A. No.

Q. Did you ever do anything that could be considered to be an aggressive action towards the corrections officers?

A. No.

Clarke Dep. 17:14-23:6 (Docket Item 67). Obviously, the defendants dispute this version of what occurred,⁸ and ultimately a factfinder may disbelieve the plaintiff, but this testimony under oath by a competent witness creates a genuine issue of material fact on whether excessive force was used and whether qualified immunity is available as a defense.

We enforce the summary judgment rules strictly against a lawyer, or against a litigant who knowingly chooses to proceed without a lawyer and therefore takes the risk of not understanding the requirements. But this plaintiff asked several times for legal assistance and could not obtain it. Reading the documents he did file makes clear that he was trying desperately to comply.

What happened was this. On the excessive force claim, the defendants presented the Magistrate Judge with a motion for summary judgment and a separate statement of material facts accompanied by supporting affidavits, , exhibits and the plaintiffs deposition transcript. The plaintiff responded with an "Opposition" that included his version of the facts, references to paragraph numbers of a document that he did not file, "P.S.M.F." (Plaintiffs Statement of Material Facts?), and exhibits that he did file. He did not mention either his affidavit or his deposition in the opposition. The plaintiffs violations of Local Rule 56 were the failure to file whatever document "P.S.M.F." was referring to, and the failure to refer specifically (in what he did file) to his affidavit attached to the Amended Complaint and to his deposition testimony attached to the defendants' statement of material facts.

The obligations of the court in such circumstances are not well defined. On a motion to dismiss for failure to state a claim, the Supreme Court has said that an unrepresented plaintiffs complaint is held to "less stringent standards" than a pleading drafted by a lawyer. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). The Supreme Court has not had occasion to apply that principle to summary judgment practice. The circuit courts are divided, some requiring special notice to unrepresented litigants about what is required to oppose a summary judgment motion, see, e.g., Ross v. Franzen, 777 F.2d 1216, 1219 (7th Cir.1985); McPherson v. Coombe, 174 F.3d 276 (2d Cir.1999), and others holding the unrepresented plaintiff strictly to the Rules, see, e.g., Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir.1992).⁹ The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read "liberally." Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.1988); Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 27 (1st Cir.1980). But it has also enforced Fed.R.Civ.P. 56(e)'s requirement that an unrepresented plaintiffs opposition "set forth specific facts showing that there is a genuine issue"—at least once he is put "on clear notice of the rule and the deficiencies of his initial response." Mas Marques, 637 F.2d at 27; accord Posadas,...