Free Order on Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:01-cv-02299-PSF-BNB

Document 257

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 01-cv-02299-PSF-BNB F. DAVID SLUSHER Plaintiff, v. JOHN W. SUTHERS, JOSEPH T. McGARRY, DONALD R. LAWSON, FRANK E. RUYBALID, EDD C. GILLESPIE, JUDY JO BULLARD, TEDDY LAMAR LAURENCE, PHYLLIS P. GRISWOULD, MR. DELAYNE TORNOWSKI, JIM DAY, TAMI WILLIAMS, RICHARD E. HOWARD, and TREVOR WILLIAMS, Defendants.

ORDER ON PLAINTIFF' OBJECTION TO ORDER OF MAGISTRATE JUDGE S ENTERED NOVEMBER 9, 2005

This matter comes before the Court on this pro se plaintiff' Objection (Dkt. s # 250, filed November 25, 2005) to the Order of the Magistrate Judge entered on November 9, 2005, denying plaintiff' request for leave to take depositions. The Court s has received no response to the objection from defendants. In his order of November 9, 2005, the Magistrate Judge denied what this Court had considered to be an implicit request by plaintiff to take depositions contained in a

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Motion to Reconsider that had been filed by plaintiff on October 31, 2005 (Dkt. # 245). In denying plaintiff' request to take depositions, the Magistrate Judge first found that s plaintiff' request had been made after the September 30, 2005 deadline for taking s discovery. Order of November 9, 2005 (Dkt. # 248) at 2-3. In explaining the sequence of events, however, the Magistrate Judge also states that during the discovery period at a hearing on May 4, 2005, counsel for defendants raised the issue of qualified immunity as a " possible bar to discovery." Id. at 3. Thus, on May 4, 2005, states the Magistrate Judge' order, " s [t]he discovery and dispositive motions deadline were set, and the parties were told that the Court would not address whether qualified immunity barred discovery until the issue was raised by the defendants in a dispositive motion. Contrary to plaintiff' assertions, his request to s conduct discovery was not denied." Id. The Magistrate Judge further found that thereafter plaintiff had not shown due diligence in attempting to obtain the depositions during the approximately five-month period prior to the discovery deadline (id. at 4). On September 30, 2005, the defendants filed their motion for summary judgment (Dkt. # 232) and the discovery period ended. In his objection to this Court, plaintiff recites his efforts to take depositions of defendants or their representatives, and he seeks to explain that he attempted diligently to take the depositions. He does not, however, identify precisely which persons he wishes to depose or the reasons why the depositions are necessary. Moreover, the Court notes that on December 15, 2005, plaintiff filed a lengthy

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opposition to the defendants' motion for summary judgment (Dkt. # 255), thus the necessity of taking such depositions is unclear. Nonetheless, the Court also notes that with his opposition to the motion for summary judgment, plaintiff has filed his own affidavit in compliance with Rule 56(f), F.R.Civ.P., (Exhibit 6 to Dkt. # 255) in which he does identify specifically who he wishes to depose, and the subject matter of the depositions. Affidavit of Slusher at ¶¶ 2, 7 and 8. Plaintiff states that this discovery will support the assertions made in his opposition to summary judgment. Id. at ¶10. Although this Court has referred to the Magistrate Judge the motion for summary judgment for a Report and Recommendation, it has made a cursory review of the motion. The Court notes that defendants have argued that they are entitled to qualified immunity, essentially because plaintiff does not have a serious medical condition such that it implicates Eighth Amendment protections, and that in any event, the named defendants had no knowledge of plaintiff' conditions. All of the exhibits tendered in s support of defendants' motion are excerpts from plaintiff' own deposition, with the s exception of Exhibit 3, an affidavit from Dr. Anita Bloor, who has opined on plaintiff' s medical condition. Plaintiff' affidavit under Rule 56(f) counters that he needs the depositions of s defendants to show that he had a serious medical condition (Slusher Affidavit at ¶ 7) and to demonstrate that defendants did have knowledge of his condition. Id. at ¶ 8. Without in any way prejudging the defendants' motion, the Court does not see why depositions of defendants would be needed to establish plaintiff' medical s 3

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condition. His own testimony, or medical records, would generally provide evidence of such conditions, and depositions of the government defendants should generally not be needed for this point. The Court also notes that while plaintiff has the burden of showing that the defendants had knowledge of his condition, he can so demonstrate through his own testimony of making reports to defendants regarding his condition, and depositions of each defendant are not likely to contribute to this effort. If defendant failed to have his condition made known to some of the defendants, that may well result in some of his claims being resolved in favor of defendants. However, because the defendants have submitted an affidavit from Dr. Bloor, who is not a defendant in this case, and because she had previously been identified by plaintiff as a person he wished to depose (see Plaintiff' Affidavit of September 17, s 2004 (Dkt. # 168 at ¶ 3), the Court finds that plaintiff should be permitted to take limited discovery regarding Dr. Bloor' affidavit and opinions. Due to the procedural posture of s this case, the Court finds that such discovery must be taken expeditiously. The Court also finds that due to the fact plaintiff is not in a position to pay for a deposition transcript, the deposition should be taken on written questions pursuant to Rule 31(a), F.R.Civ.P. Accordingly, the Court will permit plaintiff to propound ten written questions to Dr. Bloor, no later than January 20, 2006, and in accordance with the procedures set forth in Rule 31(a), with the exception that the written questions are to be served on

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counsel for defendants as opposed to an officer designated under Rule 31(b), and counsel is to obtain answers from Dr. Bloor. In addition, no cross questions may be submitted by other parties under Rule 31(b). Dr. Bloor is to answer the questions in writing under oath within ten days of receipt of same, and counsel for defendants is to serve the signed and sworn answers on plaintiff promptly. If plaintiff believes the sworn answers of Dr. Bloor provide additional information, he has until February 10, 2006 to file a supplement, not to exceed five pages, to his opposition to the motion for summary judgment. Defendants' reply brief is due five business days after receipt of any supplement filed by plaintiff, or no later than February 17, 2006. Plaintiff' Objection (Dkt. # 250) to the Magistrate Judge' Order of November 9, s s 2005 is thus GRANTED in part and DENIED in part, as set forth herein. DATED: January 3, 2006 BY THE COURT:

s/ Phillip S. Figa ________________________________ Phillip S. Figa United States District Judge

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