Free Motion for Leave to File Excess Pages - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

Document 66

Filed 09/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff,
v.

JOHN HYATT, et. al. Defendants.

DEFENDANTS' MOTION TO EXCEED PAGE LIMIT FOR DEFENDANTS' JURISDICTIONAL BRIEF with Proposed Order

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (hereinafter collectively "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., hereby respectfully submit this Motion to Exceed Page Limit for Defendants' Jurisdictional Brief, and as grounds as follows: 1. The United States Court of Appeals for the Tenth Circuit remanded this

case to this Court for the purpose of determining whether Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny bar the Plaintiff's 42 U.S.C. § 1983 claims against the Defendants. [See Order and Judgment, at 2]. On remand to this Court by the Tenth Circuit, a status conference was held before United States Magistrate Judge Craig B.

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Shaffer on August 10, 2005.

The Magistrate Judge directed the parties to submit

jurisdictional briefs on the Heck issue raised by the Tenth Circuit's remand. 2. This Court's Practice Standards for Civil Actions establish a fifteen (15) See REB Civ.

page limit on motions other than motions for summary judgment.

Practice Standard V.A. Defendants respectfully request leave of this Court to file the accompanying Defendants' Jurisdictional Brief which is twenty-three (23) pages. 3. Defendants submit that an oversize jurisdictional brief is necessary and First, the applicable law

fully justified in this matter for several different reasons.

concerning the parameters of Heck and its progeny and their application to prison disciplinary proceedings is complex and requires extended discussion of four important United States Supreme Court decisions. Second, the determination by this Court as to whether Heck and its progeny applies to the instant case depends on an understanding of the concepts of good time and earned time under Colorado law. Both from a

statutory perspective and an administrative perspective from the Colorado Department of Corrections, providing this Court with a comprehensive understanding of good time and earned time and their respective impact on the parole eligibility and sentence discharge dates of Colorado offenders also requires extended discussion. Third,

application of Heck and its progeny to the facts of this case requires an extended discussion of the specific facts involved with the Plaintiff's Code of Penal Discipline convictions and their impact on his earned time awards and hence the length of his sentence. Defendants respectfully suggests the length of the Defendants' Jurisdictional

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Brief is necessary to allow this Court to make an informed decision about the issues remanded by the Tenth Circuit for decision by this Court. 4. Pursuant to D.C.Colo.LCiv. R. 7.1(A), counsel for the Defendants is

required to confer with Plaintiff regarding an extension of time. Plaintiff, who is pro se, is incarcerated and unavailable by telephone. Therefore, counsel cannot confer and is unaware of his position on this Motion.

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WHEREFORE, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court grant them leave to file a jurisdictional brief in excess of fifteen (15) pages and accept the contemporaneously filed Defendants' Jurisdictional Brief for filing with the Court, and all related proceedings, and for all other and further relief as this Court deems just and appropriate. Dated this 12th day of September, 2005 Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 12th day of September, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN
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