THOMAS v. REAGAN

USDC Cr. No. 84-3552

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al,       
           Plaintiff,        
                             
       v.                           Civil Action No. 84-3552
                             
UNITED STATES OF AMERICA     
  et al.                     
           Defendants.                           FILED
                                               AUG 18 1986
                                         CLERK, U.S. DISTR1CT COURT
                                            DlSTRlCT OF COLUMBlA

MEMORANDUM AND ORDER

Since August 1, 1986, when the parties were last before the United States Magistrate for the deposition of James McDaniel, several motions have been filed. This Order will resolve all outstanding motions and requests now pending so that discovery may be brought to a conclusion by August 30, 1986, except as provided herein, and except for matters which must be ruled on by the Court (Oberdorfer, J.). Based on the foregoing and an updated review of the court record, the United States Magistrate now makes the following rulings and diapositions of the pending matters.

1. The plaintiff's request for expedited production of transcripts of depositions of persons previously deposed and renewed request for a court reporter to be present at the depositions of Richard G. Robbins, Assistant Solicitor, National Capitol Parks, Patricia Bangert and Manus J. Fish, filed August 6, 1986 is hereby DENIED, the General Counsel of the Administrative Office of the United States Courts

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having advised by letter response to a letter from the United States Magistrate that there is no statutory authority or appropriated fUnds by the United States Congress for this purpose, and thus the Court must rely on the electronic recording of the proceedings on tape. It would thus appear that for purposes of resolving pretrial, dispositive motions, such as for partial or full summary judgment, the Court would have to listen to the tape recordings of the oral depositions, to the extent necessary to resolve such motion or motions, unless the defendants were to pay for the transcripts of the depositions as an aid in resolution of their motions.[1]

[1 The General Counsel advised: "The general rule is that there are no appropriated funds available to the Judiciary to defray the costs of private civil litigation, other than for those purposes enumerated in 28 U. S. C. §1915(b). That subsection, however, does not authorize the expenditure of judicial appropriations to pay for the transcript of a deposition on behalf of an indigent litigant. It authorizes payment only of the cost of (1) printing the record on appeal in a civil or criminal case, (2) preparing a transcript of a proceeding before a magistrate under 28 U. S. C. S636(b) or 18 U. S. C. §3401(b), and (3) printing the record on appeal of a case conducted by a magistrate pursuant to 28 U. S. C. §636(c). The matter of trial transcripts for indigent civil litigants is covered by 28 U. S, C. §753(f), but that section of course is of no application to the transcription of depositions."]

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2. Plaintiff's motion for reconsideration of the Magistrate's August 1, 1986 Order is hereby DENIED, except that the Federal defendants shall make National Park Service Park Technician Frank Duncan available for deposition as soon as arrangements can be made, if he is still employed by the National Park Service in the Washington, D. C. area, and the Federal defendants shall produce former Deputy Chief James C. Lindsey to testify, solely as a defendant in his·official capacity, on the following issues: (a) whether he recommended changes, modifications ·or tightening of the U. S, Park Service regulations affecting demonstrations on the White House sidewalk or in Lafayette Park between October, 1981 and August, 1985, and the size and use of signs and structures, to deprive anyone of the exercise of First Amendment rights; [2] (b) whether he directed or instructed any subordinate officers regarding the arrest of William Thomas, his detention, and the disposition of his property when arrested during this same time period; and (c) whether he was:ever on the scene and personally participated in any of the arrests of William Thomas, or in evaluating the facts to determine probable cause prior to any of the arrests and then directing or

[2 This inquiry appears to be appropriate under the language of the Court's Order of June 5, 1986 that notwithstanding the facial constituti~nality of the park regulations, an issue may develop in the case as to whether the adoption of the regulations was an act in furtherance of a conspiracy to violate the plaintiff's civil rights. This raises the in- teresting legal question of whether a regulation, valid on its face and adopted for generally proper purposes, can be claimed to violate an individual's civil rights if adopted by administrative officials with an additional improper purpose of applying the regulation in a manner to further a conspiracy.]

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advising any arrest by any other officer, [3]

3. The plaintiff on July 30, 1986 filed several motions to expedite production of documents from the several named Federal defendants and from the D. C. Metropolitan Police Department, together with a memorandum in support thereof. (Docket No. 183), The Magistrate, at the proceedings of August 1, 1986 orally ruled that the individuals named would not be required to produce United States documents and records or agency records and documents, but that they could only be produced by the agency head or authorized custodian thereof. The Magistrate directed counsel for the defendants to file a response to the motions otherwise no later than August 6, 1986 in the nature of a Motion for a Protective Order to advise what documents and records had already been produced, what documents and records they are now willing to produce, and what they object to prdducing as not relevant to the issues still remaining in the case or as privileged. On August 6, 1986 the Federal

[3 The Magistrate has fully considered defendant Lindsey's Statement of Material Facts not in dispute and his declaration in support of his Motion to Dismiss or for Summary Judgment. Normally, the Magistrate would not require the deposition of a defendant under these circumstances, but considering that discovery is about to close (August 30, 1986), trial is imminent (October -20; 1986) and that former Deputy Chief James C. Lindsey obviously has knowledge of facts relevant to the central issues in this case as to liability vel non of the United States and the other named Federal defendants in their official capacities, it would be prudent in the exercise of judicial discretion to require his deposition now and avoid any claim by the plaintiff that he has been prejudiced by not being allowed to depose former Deputy Chief James C. Lindsyr who, according to his own declaration, was in charge of operations of the United States Park Police from October, 1981 to August, 1985. Further, his deposition maywell strengthen the factual basis in support of his motion.]

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defendants responded with a Motion for Protective Order as to some of the plaintiff's current discovery requests. The District of Columbia, regarding Captain Michael Canfield, filed a response to the plaintiff's request on August 12, 1986. Upon review of the Federal defendants' memorandum in response to plaintiff's various discovery requests and in support of their Motion for Protective Order, the Plaintiff's opposition, filed August 11, 1986, and the court record, it is concluded by the United States Magistrate that the Federal defendants' motion should be GRANTED, except for the items the Federal defendants have committed themselves to produce in their August 6, 1986 memorandum by August 18, 1986 (which was in fact done by a Notice of Filing made in the morning of August 18, 1986), and United States Park Police reports that refer to William Thomas, Concepion Picciotto, and Ellen Thomas for the period January 1, 1983 through December 31, 1984 in any way bearing on their demonstration activities, any such additional records and documents to be produced no later than September 10, 1986. The United States Magistrate fully recognizes that a search for and production of these additional documents and reports will impose some burden, but deems it absolutely necessary to resolve,once and for all time, whether there was any conspiracy or any other action by the United States Park Police or any of its members to violate Mr. Thomas' First Amendment rights, in particular, and his constitutional and civil rights, in general. The expenditure of this effort now may well save much litigation time and even avoid appellate problems in the future. The Magistrate

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limited the time period to two (2) years to minimize the burden and the expense, rather than going back to June 3, 1981, the date Mr. Thomas claims he started his demonstration activities. This discovery goes to the heart of the case if there is any substance to Mr. Thomas' allegations. Notwithstanding the expense and burden, Mr. Thomas should be afforded access to governmental records and documents involving surveillance of him and his activities to·determine if there is any evidence in them supporting his claims in this case If not, production now may assure him, and ultimately the court, and the appellate court which may later review these proceedingsr that his allegations have been totally unfounded and that all of the law enforcement action against him from June 3, 1981 to date has been proper under the United States Constitution and the laws of the United States, including regulations, applicable thereto. If Mr; Thomas finds probative supportive documents in the two (2) years for which production is being required, he may then request the Court to extend discovery for the limited purpose of requiring production of documents and records for the earlier periodof June 3, 1981 to December 31, 1982 and for the period January 1, 1985 to the present. Likewise, the United States Park Police shall produce all photographs of Mr. William Thomas taken of him involved in alleged demonstration activities during the period of January 1, 1983 through December 31, 1984, relevant both to the intensity of the surveillance and the nature and size of

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the signs and structures with which Mr. Thomas was purportedly associated. As to all other pending discovery requests of the plaintiff, the Motion for Protective Order is hereby GRANTED to the Federal defendants.

4. On August 11, 1986 the plaintiff filed a Notice in support of plaintiff's request to depose defendant United States Government upon written questions. To the extent it seeks factual information, the request is hereby DENIED without prejudice to plaintiff asking relevant questions of Richard G. Robbins, Patricia Bangert and Manus J. Fish, in their official capacities, during their depositions as to such matters. [4] To the extent the proposed questions are in the nature of proper contention interrogatories, these matters shall be dealt with in the trial briefs and at a formal pretrial conference in preparation for trial, and for that reason the request is DENIED. Questions not falling into the above two (2) categories deal with matters not relevant to the central issues in this case and need not be answered. Finallyr the request that John D. Bates, Assistant United States Attorney, be designated as a deponent to answer the written questions pursuant to Rules 30(b)(6) and 31(a) and (c),·Federal Rules of Civil Procedure, is hereby DENIED.

[4 To the extent relevant to factual issues in the case, plaintiff may ask these three (3) prospective deponents the written questions set forth in his "Notice in;Support of Plaintiff's Request to depose Defendant United States Government upon Written Questions."]

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5. On August 11, 1986 plaintiff also filed a motion to hasten response or alternatively to enlarge time for discovery with reference to his request for the deposition of the defendant United States Government Upon Written Questions. Based upon the disposition made of that request and the other rulings herein, the motion to hasten a response or alternatively to enlarge time for discovery is DENIED.

6. The Federal defendants on August 13, 1986 filed a motion to alter or reschedule date on which dispositive motions are due. Upon consideration of the representations therein, the rulings made herein as to further discovery obligations of the Federal defendants, and particularly the Uni~ed States Park Policer and in the absence of the Court (Oberdorfer, J) on vacation until August 29r 1986, the Magistrate hereby GRANTS an extension until September 2, 1986 .for the filing of all dispositive motions by any party. NO FURTHER EXTENSIONS SHALL BE GRANTED.

7. Assuming the parties exercise due diligence and exert maximum good faith effort, it is still possible to meet the requirements of the Court's Order for entry of a Pretrial Order by September 15, 1986 and trial to commence on October 20, 1986. The Magistrate realizes that there is a pending motion by the defendant Lindsey to dismiss, or alternatively, for summary judgmentr filed August 4, 1986 and that other dispositive motions may be filed, which will require rulings by the Court (Oberdorferr J·)r but the

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pendency of these matters need not interfere with the preparation for the pretrial conference and the trial, if one should be necessary, In preparation for the formal final pretrial conference the plaintiff shall file his trial brief, with contents as required by the Court's Order of June 5, 1986, this to be done no later than 4:00 P. M., September 8, 1986, with a copY hand delivered to each of the opposing counsel's offices on the same date. The defendants shall file their respective trial briefs, in response to plaintiff's trial brief, no later than 4:00 P. M., September 12, 1986. The formal final pretrial conference shall be held before the undersigned United States Magistrate on September 15, 1986 at 9:00 A. M. This require- ment of trial briefs in advance oe the pretrial conference eliminates duplicative preparation of both pretrial statements and trial briefs and assures more thorough preparation for the formal pretrial conference,

With reference to the foregoing, it is hereby this 18th day, of August, 1986 SO ORDERED.

(signed) Arthur L. Burnett Sr
.
UNITED STATES MAGISTRATE

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