Foster v. Litman

Background

Bradley W. Foster brought claims under 42 U.S.C. § 1983 and state law based on alleged injuries during transportation to a St. Louis County court proceeding while he was restrained by a “Black Box Restraint System.” The court stated that all claims had been dismissed except Foster’s Fourteenth Amendment claims against Mark Phinney and Ross Litman. Defendants had filed a motion for summary judgment on the remaining claims.

The original scheduling order set October 28, 2019, as the discovery deadline and required Foster to obtain the court’s permission before taking depositions. On January 3, 2020, the court granted in part and denied in part Foster’s discovery motions and extended the discovery deadline to April 30, 2020. The amended scheduling order kept the deposition-approval requirement in place.

Motion to Extend Discovery

Foster filed two identical requests to extend discovery by 90 days after the Minnesota Sex Offender Program facility reopened to visitors. He cited pandemic-related restrictions, the asserted “closure of the Court,” communication problems with opposing counsel, difficulty taking depositions and obtaining records, and alleged noncompliance with discovery requests. He also requested a hearing.

The court denied both requests. Under Federal Rule of Civil Procedure 16(b)(4), a scheduling order may be changed only for good cause and with the judge’s consent. The court said the main measure of good cause is the moving party’s diligence.

The court found that Foster had not shown the required diligence. He waited until June 29, 2020, nearly two months after the extended discovery deadline and about one month after the deadline for non-dispositive motions. The court also found that Foster had not explained why he did not conduct discovery between January 3 and the start of the pandemic-related lockdown in March, had not shown how the lockdown prevented written discovery or requests for court relief, and had not provided the specific information required by the local rule about completed and remaining discovery. Foster also had not asked for permission to take depositions, as the scheduling orders required. The court concluded that a hearing was unnecessary.

Motion to Appoint Counsel

Foster filed two identical requests for appointment of counsel from the Federal Bar Association’s Pro Se Project. He relied primarily on medical quarantine and pandemic-related restrictions, including claimed limits on access to communication and discovery resources.

The court denied both requests. It explained that civil litigants generally have no constitutional or statutory right to appointed counsel, although a court may request counsel in a civil-rights case in appropriate circumstances. Relevant considerations included the factual and legal complexity of the case, the litigant’s ability to present the claims, and whether representation would benefit the parties and court.

The court found that the facts and legal issues were not overly complex and that Foster had demonstrated an ability to present his claims and communicate with the court. It also found that Foster had not shown that the pandemic prevented him from filing motions or conducting discovery in a way that justified counsel, particularly because discovery had already closed and he had not shown good cause to extend it.

Summary-Judgment Briefing and Order

Although the court denied the discovery-extension and counsel motions, it allowed Foster to file a supplemental opposition to Defendants’ summary-judgment motion so that he could address those rulings. The supplemental brief was due August 28, 2020, and Defendants’ reply was due September 11, 2020.

The order denied Docket Nos. 85 and 100, both titled requests to extend discovery and for a hearing, and denied Docket Nos. 84 and 102, both motions to appoint counsel. The order did not decide Defendants’ summary-judgment motion.