KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Plaintiff's
The full title of the Motion to Compel [#653] is "Plaintiff's Response to Denver Defendants['] Motions to Quash [DOC # 504, 505] and Motion to Compel Production and/or Entry of a Contempt Order." Plaintiff's Motion to Compel [#653] is denied because the merits of Plaintiff's request have already been determined by the Court. The Court previously addressed this filing in connection with its adjudication of Defendants' Motions to Quash [#504, #505]. See Order [#654] at 4 (determining that Plaintiff should not be permitted to amend his previously-filed response, which this Response and Motion to Compel [#653] was intended by Plaintiff to do). The substance of Plaintiff's request to compel production of certain documents was addressed and determined when the Court adjudicated Defendants' Motions to Quash [#504, #505], which sought to quash the subpoenas issued by Plaintiff to obtain the same documents. See Order [#654]. The Court sees no basis for reconsidering its prior ruling. Accordingly, the Motion to Compel [#653] is
Plaintiff, who is proceeding pro se,
The amount of space permitted for legal materials kept by offenders incarcerated in CDOC facilities is governed by Administrative Regulation 850-06(IV)(G)(3)(a). This regulation provides:
The Tenth Circuit has found that "prison rules permitting inmates two-cubic feet of legal materials in their cells [are] `reasonable and necessary for orderly maintenance of the facility and proper security.'" Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992) (citing Cruz v. Hauck, 515 F.2d 322, 333 (5th Cir. 1975) (finding that the restriction of legal materials in cell was reasonable in light of security and fire dangers)).
Fed. R. Civ. P. 65(a) and (b) govern preliminary injunctions and temporary restraining orders. "Where the opposing party has notice, the procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction." Emmis Commc'ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2951 (2d ed.1995)). Here, because Defendants were given notice and an opportunity to respond, the Court analyzes the Motion [#659] under the standards for issuance of a preliminary injunction.
Injunctive relief is an extraordinary remedy which should only be granted when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). In the Tenth Circuit, a party requesting injunctive relief must clearly establish the following: (1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits. Id. "The purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will surely result without their issuance." Id. at 1267. Moreover,
Id. at 1258-59 (citations omitted). These disfavored injunctions are "more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." Id. at 1259.
As noted above, Plaintiff seeks an injunction requiring CDOC to allow him to obtain two additional legal boxes.
The law is well-established that prison management functions should be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976). Courts should grant injunctive relief involving the management of prisons only under exceptional and compelling circumstances. Taylor v. Freeman, 34 F.3d 266, 269-70 n.2 (4th Cir. 1994); see also Citizens Concerned for Separation of Church & State v. Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). Indeed, the Court of Appeals for the Tenth Circuit has stated that it "abhor[s] any situation or circumstance requiring the intervention of the federal courts in matters involving the administration, control and maintenance by the sovereign states of their penal systems. It is a delicate role assigned to the federal courts to display that restraint so necessary in the maintenance of proper federal-state relations." Battle v. Anderson, 564 F.2d 388, 392 (10th Cir. 1977) (quotation omitted). As such, "intervention in the management of state prisons is rarely appropriate when exercising the equitable powers of the federal courts. . . . [This] is especially true where mandatory injunctive relief is sought and only preliminary findings as to the plaintiff's likelihood of success on the merits have been made." Taylor, 34 F.3d at 269 (citations omitted).
Plaintiff seeks an order against a non-party, CDOC, and its non-party employees. The Tenth Circuit applies a heightened standard for litigants seeking injunctive relief against non-parties. Andrews v. Andrews, 160 F. App'x 798, 800 (10th Cir. 2005). "While the non-party status of an injunction's target may [not] be a conclusive impediment, it nevertheless heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors . . . but those considerations must also constitute . . . `appropriate circumstances' . . . to justify issuing an injunction against a non-party." Id. The "appropriate circumstances" referred to by the Andrews court require a non-party to be "in a position to frustrate [or facilitate] the implementation of a court order or the proper administration of justice." Id. at 799 (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977)).
Here, Plaintiff has failed to demonstrate that he will suffer irreparable injury unless the injunction issues. See Schrier, 427 F.3d at 1258. For example, in Pope v. Carns, No. CIV-07-1331-F, 2009 WL 3614789, at *6 (W.D. Okla. Oct. 28, 2009), the incarcerated plaintiff asked the court to issue an injunction against his non-party prison facility, "requiring it to allow access to all necessary cases and state statutes." The court there held that "Plaintiff does not indicate what administrative measures he has taken to achieve the relief sought by his request for injunctive relief, and his failure to employ those available remedies effectively prevents him from showing . . . irreparable harm. . . ." Pope, 2009 WL 3614789, at *5. Similarly, here, because Plaintiff has not shown he has attempted to use CDOC's internal administrative procedures to fulfill his alleged need, see Administrative Regulation ("AR") 850-04,
Accordingly, the Motion for a Box [#659] is
In the Motion for Discovery [#731], Plaintiff asserts that the Denver Defendants and the State Defendants
First, Plaintiff argues that he was not provided with information regarding a police officer named Anthony Schluck ("Schluck") "until the Summary Judgment phase of proceedings" in September 2015. See Reply [#747] at 1. Although Plaintiff's discussion primarily focuses on Officer Schluck, he also mentions Defendants' alleged concealment of another police officer named George Gann, Jr. See Motion [#731] at 5.
The Court ordered a final set of written discovery responses to be provided by Defendants to Plaintiff no later than August 4, 2015. Minute Order [#711]. Plaintiff states that he was unable to review these materials, including materials which mention Officers Schluck and Gann, until he was returned to his prison facility following a federal court civil trial in a separate action.
Contrary to Plaintiff's argument, Defendants assert that Officer Schluck was revealed to Plaintiff prior to August 4, 2015. In support, they provide the Denver Defendants' Response to Plaintiff's Second Request for Production [#735-1], which includes a Certificate of Service to Plaintiff dated May 13, 2015. In this Response [#735-1], the Denver Defendants noted that they were providing a copy of a document titled "General Sessions Summons and Complaint #GD-136117 (bates no.: DENVER006296)." [#735-1] at 4 ¶ Z. This document twice shows initials which appear to be "A S," one set of which is far more legible than the other. [#735-2]. Although Plaintiff could have earlier followed up on these initials to determine to whom they belonged, the Court cannot find that this was enough to put him on notice of the existence of Officer Schluck.
Defendants further assert that, in the same set of documents produced on May 13, 2015, they provided a copy of a document titled "Incident Detail Report # DPD-09-0250125 (bates no.: DENVER000648-000650)." [#735-1] at 3 ¶ G. This document lists "Schluck A 04040 = CIT (P04040)" and "Gann Jr, G 05017 = CIT (P05017)" as the police personnel assigned to the incident involving Plaintiff which occurred on April 28, 2009. [#735-3]. The Court finds that this information was enough to put Plaintiff on notice of the existence of both Officers Schluck and Gann and their involvement in the incident report as of May 2015.
Defendants next direct the Court's attention to the Denver Defendants' First Supplemental Response to Plaintiff's Second Request for Production [#735-4], which includes a Certificate of Service to Plaintiff dated June 5, 2015. In this Supplemental Response [#735-4], the Denver Defendants note that they were providing to Plaintiff a copy of a document titled "Court File of 2009GS136117 (Bates No.: DENVER006917-6942)." [#735-4] at 3 ¶ nn. This document lists "SCHLUCK, ANTHONY" and his identification number in connection with Plaintiff's case file for the court proceedings in Case Number 09GS136117, which stemmed from the April 2009 incident. [#735-5]. The Court finds that this information was enough to put Plaintiff on notice of the existence of Officer Schluck as of June 2015.
Thus, the Court finds that Officer Schluck was revealed to Plaintiff at least by May 2015 and no later than June 2015, and that Officer Gann was revealed to Plaintiff at least by May 2015. Accordingly, the Court finds that discovery should not be reopened to accommodate Plaintiff's desire to conduct additional discovery with respect to these two persons.
Second, to the extent Plaintiff argues in his Reply [#747] that Defendants "have conceal[ed] the identity of Matthew Mullins as a material witness concerning the incident of August 28th, 2010," this issue was not raised in Plaintiff's Motion for Discovery. The Court need not address issues raised for the first time in a Reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). The same result applies to Plaintiff's argument that Defendants failed to supplement a discovery response first provided in May 2015. See Reply [#747] at 12-13. This issue was not raised in the initial Motion [#731].
Third, Plaintiff argues that certain Computer-Aided Dispatch ("CAD") reports were inaccurate or concealed by Defendants. Motion [#731] at 4. The only CAD report to which Plaintiff specifically refers is the one from the April 2009 incident. In response to this argument, Defendants direct the Court's attention to the Denver Defendants' Response to Plaintiff's Second Request for Production [#735-1], which includes a Certificate of Service to Plaintiff dated May 13, 2015. In this Response [#735-1], the Denver Defendants noted that they were providing a copy of a document titled "Incident Detail Report # DPD-09-0250125 (bates no.: DENVER000648-000650)." [#735-1] at 3 ¶ G. This document appears to be the April 2009 CAD report sought by Plaintiff. [#735-3]. Hence, the document was not concealed by Defendants, contrary to Plaintiff's assertion. Moreover, to the extent Plaintiff argues that this document or other documents are inaccurate or "false," he has provided no grounds for additional discovery on the issue. Indeed, if he has knowledge that documents are "false," he may share his knowledge of any alleged inaccuracies or issues of material fact in connection with the Motions for Summary Judgment and/or at trial. See, e.g., Response [#735] at 10.
Fourth, Plaintiff argues that Defendants should have produced certain Internal Affairs files. See, e.g., Reply [#747] at 13. However, Defendants first objected to producing these documents on May 13, 2013, and Plaintiff did not file a timely motion to compel.
(footnote omitted). Thus, to the extent Plaintiff seeks to compel discovery of these files, or to object to other discovery responses received prior to Defendants' final submission on August 4, 2015, such requests and objections are untimely at this late stage of the lawsuit.
Fifth, to the extent Plaintiff argues that Defendants concealed the identity of a witness named Kathy Jones, Plaintiff fails to direct the Court's attention to any relevant discovery request or response. To the extent Plaintiff asserts that Kathy Jones was intimidated by Defendants' counsel at Plaintiff's civil trial in Case No. 12-cv-02257-CMA-KLM in August 2015, this alleged occurrence has no bearing on whether discovery in this matter should be reopened, as all discovery in this case was completed approximately a week before that trial began.
The Court next turns to Plaintiff's request to reopen discovery, which he asserts as a request under both Fed. R. Civ. P. 56 and Fed. R. Civ. P. 16(b). To the extent Plaintiff seeks the reopening of discovery pursuant to Fed. R. Civ. P. 56, the request is denied. Rule 56(d) provides: "If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." This rule does not provide carte blanche for re-opening discovery after the filing of summary judgment motions. Generally, a party's Rule 56(d) application "should be liberally treated." Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir. 1993). But Rule 56(d) "is not a license for a fishing expedition," Lewis v. Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990), and should be denied if "dilatory or lacking in merit." Jensen, 998 F.2d at 1554. The Rule is not intended to permit late discovery simply because a party failed to determine that he needed certain evidence to oppose a motion for summary judgment, or failed to timely file a motion to compel related to previously-received discovery responses.
Chavez v. Cnty. of Bernalillo, 3 F.Supp.3d 936, 968-969 (D.N.M. 2014). Thus, under Rule 56(d), dilatory requests for discovery must be adequately explained. As discussed throughout the adjudication of this Motion for Discovery, Plaintiff has failed to do so. The purpose behind the discovery process is to allow the parties to timely and efficiently gather information needed to present disputes to the trier of fact. Here, however, Plaintiff first brought these issues to the Court's attention nearly two months after the close of written discovery and even longer after the dispositive motions deadline—i.e., precisely when his Responses to the Motions for Summary Judgment were due. The timing therefore leads the Court to conclude that Plaintiff neglected to obtain the discovery he believes is necessary to respond to the Motions for Summary Judgment before the discovery deadline, and is belatedly attempting to remedy that problem. Accordingly, Plaintiff's request under Fed. R. Civ. P. 56(d) is
Turning to Plaintiff's argument under Fed. R. Civ. P. 16(b), discovery in this matter closed on August 4, 2015. The Court may modify the Scheduling Order on a showing of good cause. See Fed. R. Civ. P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order "to extend or reopen discovery is committed to the sound discretion" of the Court. Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). When exercising its discretion, the Court considers the following factors: (1) whether trial is imminent; (2) whether the request to reopen or extend discovery is opposed; (3) whether the non-moving party would be prejudiced; (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the Court; (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the Court; and (6) the likelihood that the discovery will lead to relevant evidence. Id. (citations omitted). With regard to the fourth factor, the Court of Appeals for the Tenth Circuit has explained that "[d]emonstrating good cause under [Rule 16(b)(4)] `requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'" Strope v. Collins, 315 F. App'x 57, 61 (10th Cir. 2009) (quoting Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)).
Incorporating the Court's discussion above, the Court considers each of the factors set forth under the Smith test. First, trial has not yet been set in this matter. Because trial is not imminent, this fact weighs in favor of allowing the reopening of discovery. Second, the request to reopen discovery is opposed by all Defendants. This factor weighs against reopening discovery. Third, Defendants would be prejudiced by having to respond to untimely discovery requests when they should be devoting their time, money, and energy to settlement and/or trial preparation. This factor weighs against reopening discovery. Fourth, Plaintiff was not diligent in obtaining the discovery he seeks. The parties have had an excessively lengthy period of time to complete discovery in this rapidly-aging case. This factor weighs against reopening discovery. Fifth, the foreseeability of the need for additional discovery likewise does not favor Plaintiff. Plaintiff's claims have not evolved since the outset of this litigation. Hence, Plaintiff should have foreseen the need for this type of discovery long ago. This factor weighs against reopening discovery. Finally, the suggested discovery could lead to the discovery of relevant evidence. This factor weighs in favor of reopening discovery. However, taken as a whole, Plaintiff has not carried his burden of demonstrating good cause to reopen discovery, as four of the six factors weigh against it. Discovery should not be reopened prior to Plaintiff filing Responses to the Motions for Summary Judgment simply to give him an opportunity to fill late-detected holes in discovery. Accordingly, Plaintiff's request under Fed. R. Civ. P. 16(b) is
Three additional matters raised in the briefing must be addressed. First, to the extent Plaintiff asks to amend his pleadings, this request is
Accordingly, the Motion for Discovery [#731] is
In the Motion for Sanctions [#733], Plaintiff seeks sanctions based on Defendants' discovery tactics, as discussed above in connection with the Motion for Discovery [#731]. Having found that Defendants have not engaged in discovery abuse,
Accordingly, the Motion for Sanctions [#733] is
In the Motion for Extension [#740], Plaintiff seeks an extension of the briefing schedule on the Motions for Summary Judgment [#694, #697, #700, #714] as well as a stay of proceedings until the Motion for Discovery [#731] and the Motion for Sanctions [#733] are resolved.
Regarding the request for an extension of the briefing schedule on the Motions for Summary Judgment, the Court first notes that the four Motions for Summary Judgment [#694, #697, #700, #714] were filed on July 6, 13, and 27, 2015. Plaintiff's Response to the earliest-filed Motion for Summary Judgment [#694] was therefore due by July 30, 2015. On August 26, 2015, Plaintiff filed a belated Motion for Extension of Time to Respond to Defendants' Motions for Summary Judgment (All Pending Motions) [#724]. Despite the belatedness of the request, the Court granted the extension and ordered Plaintiff to respond to all four Motions for Summary Judgment by September 17, 2015. Minute Order [#726]. On September 21, 2015, Plaintiff again belatedly filed a Second Motion for Extension of Time [#727]. The Court again granted the request and extended the deadline for Plaintiff to respond to the Motions for Summary Judgment to October 17, 2015. Minute Order [#730]. Plaintiff was warned at that time that "
Calculated from the date each Motion for Summary Judgment was filed, Plaintiff had approximately between twelve and fifteen weeks to file Responses before the October 17, 2015 deadline.
Regarding the request for a stay of proceedings until the Motion for Discovery [#731] and the Motion for Sanctions [#733] are resolved, the Court has adjudicated these Motions as part of the present Order. Thus, this request is
Accordingly, the Motion for Extension [#740] is
In the Motion to Stay [#741], Plaintiff repeats his request for an extension of the briefing schedule on the Motions for Summary Judgment [#694, #697, #700, #714] as well as for a stay of proceedings until the Motion for Discovery [#731] and the Motion for Sanctions [#733] are resolved. Because the Court has ruled on both of these requests in connection with the Motion for Extension[#740, the Motion to Stay is moot.
Accordingly, the Motion to Stay [#741] is
Based on the foregoing,
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
IT IS FURTHER
