Free Proposed Scheduling Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1917 REB-MJW DENNIS MICHAEL BLAY Plaintiff(s), v. JOHN REILLY, RICHARD GRAHAM, and CHARLIE PELLITIER, Defendant(s).

SCHEDULING ORDER

1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The Scheduling Conference was held on January 31, 2008 at 8:30 a.m. in the United States Courthouse located at 901 19th Street, Courtroom 5, Denver, Colorado. Appearing for the parties were: For Plaintiffs: Dennis Michael Blay, via telephone Crowley County Correctional Facility 6564 State Highway 96 Unit 1-A-3134 Olney Springs, CO 81062-8700 Andrew M Katarikawe, Assistant Attorney General Will V. Allen, Assistant Attorney General 1525 Sherman Street, 5th Floor Denver, CO 80203 (303) 866-3545

For Defendants:

2. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff(s): Plaintiff was hired by Richard Graham to work in the State

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Correctional Industries also known as Juniper Valley Products in the Graphics Design Division on or about November 1998. On or about July 1999 Plaintiff was made a team trainer, and his job included training inmates to prepare lettering for signs. This process included using power tools, painting, sanding, etc. Defendants failed to provide adequate ventilation in a closed work area where volatile and dangerous chemicals existed, and Defendants did not provide dust control ventilation. Plaintiff complained about these conditions, but Defendants failed to address these physical dangers in violation of Plaintiff's 8th Amendment rights. Additionally, Defendants ordered and encouraged inmate workers, including Plaintiff, to use tools and equipment without being trained or warned of possible dangers associated with the use of those tools. Defendants encouraged the use of tools and equipment that was not designed or manufactured for the purposes that Defendants imposed upon Plaintiff. Plaintiff was physically injured when using improper and unsafe equipment without proper training. Defendants were deliberately indifferent to the health and safety of Plaintiff in violation of Plaintiff's 8th Amendment rights. b. Defendant(s): Defendants deny they violated Plaintiff's 8th Amendment rights by

being deliberately indifferent to his safety and welfare. Additionally, Defendants deny that Plaintiff exhausted his administrative remedies, as mandated in the Prisoner Litigation Reform Act, 42 U.S.C. 1997e(a). Because he failed to exhaust administrative remedies, Plaintiff's complaint fails to allege a constitutional violation and Defendants are entitled to qualified immunity. Defendants also may pursue some or all of the Affirmative Defenses set forth below.

1.

The Complaint fails to state a claim upon which relief can be granted.

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2.

Plaintiff's claims are barred by applicable statutes of limitation and/or by the

equitable doctrine of laches. 3. Plaintiff's claims are barred or limited to the extent that he may have failed to

mitigate his damages. 4. Any injuries or damages suffered by Plaintiff have resulted from his own acts,

negligence, or inattentiveness, and not from any act or failure to act by Defendants. 5. To the extent that the Plaintiff may assert any claim sounding in tort under

state law, such claims are barred, limited, and otherwise controlled by the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq.
6. Any injury or damages suffered by Plaintiff were de minimis, or amount to

common law torts only, not cognizable under 42 U.S.C. §1983. 7. 8. Plaintiff's claims are barred by the doctrines of waiver and/or estoppel. Plaintiff lacks standing to assert any claim for relief under Claim III, and such

claim is barred by Plaintiff's failure to allege any physical injury and by his failure to allege any damages. c. Other Parties: None. 3. UNDISPUTED FACTS 1. During the relevant time period of Plaintiff's Complaint, he was incarcerated at

the Limon Correctional Facility ("LCF"). 2. Plaintiff was convicted of sexual assault on a child and contributing delinquency

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in Jefferson County District Court. 3. Plaintiff was convicted of aggravated incest in Jefferson County District Court,

Colorado in Case No. 87 CR 1076. 4. Plaintiff was convicted of sexual assault on a child and three counts of aggravated

incest in Jefferson County District Court. 5. Plaintiff has been incarcerated by the Colorado Department of Corrections

("DOC") since 1993. 6. Plaintiff is a prisoner within the meaning of the Prisoner Litigation Reform Act,

42 U.S.C. § 1997e ("PLRA"). 7. 8. 2001. 9. This action is subject to the PLRA. Plaintiff worked in the DOC's Shop at LCF from November 1998 until May On December 18, 2000, Plaintiff sustained a cut to his left index finger while

working at the Shop. 10. 11. 12. Plaintiff received immediate medical treatment for his left finger injury. Plaintiff returned to work in the Shop the day following the injury to his finger. Plaintiff did not file a grievance concerning the circumstances surrounding the

injury to his finger. 13. the Shop. Plaintiff never filed a grievance alleging poor ventilation or chemical exposure in

4. COMPUTATION OF DAMAGES Plaintiff is requesting total damages of $4.5 million dollars, as follows:

**To be completed by Plaintiff Dennis Blay** 4

[Include a computation of all categories of

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damages sought and the basis and theory for calculating damages. See Fed. R. Civ. P. 26(a)(1)(C). This should include the claims of all parties. It should also include a description of the economic damages, noneconomic damages, and physical impairment claimed, if any.] 5. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. The parties conferred on January 25, 2008 and January 28, 2008 via fax. Dennis Michael Blay, appearing pro se and Will V. Allen and Andrew M

Katarikawe appearing for Defendants John Reilly, Richard Graham, and Charlie Pellitier. c. Except as set forth in Section 7, below, the parties do not propose to change the

timing, or requirement of disclosures under Rule 26 (a)(1). d. e. See Section 7 below. No informal discovery is planned at this time. 6. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 7. CASE PLAN AND SCHEDULE All parties agree to suspend setting a case plan and schedule pending the Court's ruling on Defendants' Motion for Summary Judgment. If the Court denies the Defendants' Motion for Summary Judgment, the parties agree to submit a proposed case plan and schedule within thirty (30) days of the Court's Order for the following: a. b. c. d. e. Initial Disclosures Deadline for Joinder of Parties and Amendment of Pleadings Discovery Cut-off Dispositive Motion Deadline Expert Witness Disclosure 5

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f. g. h. i.

Deposition Schedule Interrogatory Schedule Schedule for Request for Production of Documents Discovery Limitations: 8. SETTLEMENT

The parties certify that, as required by Fed. R. Civ. P. 26(f), they have discussed the possibilities of settlement, and they are willing to engage in a future settlement conference 9. OTHER SCHEDULING ISSUES a. A statement of those discovery or scheduling issues, if any, on which counsel,

after a good-faith effort, were unable to reach an agreement. None. b. Anticipated length of trial and whether trial is to the court or jury: 5 day trial to the Court 10. DATES FOR FURTHER CONFERENCES All parties agree to suspend the setting of scheduling dates for further conferences pending the Court's ruling on Defendants' Motion for Summary Judgment. If the Court denies the Defendants' Motion for Summary Judgment, the parties agree to submit proposed dates for further conferences within thirty (30) days of the Court's Order. 11. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case.

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In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A, by conferring or making reasonable good-faith efforts to confer regarding disputed matters and by the moving party stating in the motion the specific efforts made to comply with this rule. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.

12. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. DATED this ______ day of _____________ 2008. BY THE COURT:

_______________________________ United States Magistrate Judge

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APPROVED:

s/ Dennis Michael Blay

s/ Andrew M Katarikawe

Dennis Michael Blay, DOC # 80434 C/o Crowley County Correctional Facility 6564 State Highway 96 Unit 1-A-3134 Olney Springs, CO 81062-8700 Plaintiff, Pro Se

Andrew M. Katarikawe Will V. Allen Assistant Attorneys General Office of the Colorado Attorney General 1525 Sherman St., 5th Floor Denver, CO 80203 (303) 866-3545 Attorneys for Defendant

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