Free Motion for Sanctions - District Court of Colorado - Colorado

Case 1:01-cv-01191-ZLW-MJW

Document 72

Filed 07/15/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-01191-ZLW- MJW JAMES RALPH DAWSON, JR., Plaintiff, v. BRIAN BURNETT, BRAD ROCKWELL; MICHAEL WILLIAMS; JOHN CARROLL; and KRISTI MOORE, Defendants. MOTION FOR SANCTIONS
Defendants, through the Colorado Attorney General, pursuant to Fed. R. Civ. P. 37, requests that Plaintiff and Nicholas Reed be held in contempt of a court order and sanctions be imposed for refusal to cooperate with the deposition of Nicholas Reed. In support of their motion, Defendants state as follows: 1. Undersigned counsel certifies that she attempted in good faith to confer with Plaintiff and informed Nicholas Reed of his obligation to participate in his deposition.

2.

Plaintiff submitted an affidavit from Nicholas Reed in his Response to Defendant's Motion to Dismiss, filed November 5, 2001. The Court considered this affidavit in making its recommendation that Claim I remain against Defendants.

Case 1:01-cv-01191-ZLW-MJW

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3.

Defendants listed Nicholas Reed as an individual they would depose in the Scheduling Order, received leave of Court to depose him, and filed a notice of deposition.

4.

Defendants served a subpoena on Nicholas Reed for him to be deposed and made arrangements for Plaintiff to be present by telephone.

5.

The deposition was held at the Fremont Correctional Facility in Canon City, Colorado on July 14, 2005.

6.

While waiting on the court reporter to prepare for the deposition, Plaintiff indicated a desire to waive his appearance at the deposition. Undersigned counsel indicated he should wait for the court reporter so his waiver of appearance would be on the record.

7.

Mr. Nicholas Reed then indicated he wanted to waive his appearance at the deposition, but undersigned counsel informed Mr. Reed that he was not allowed to waive his appearance because he was under subpoena and Defendants wanted to ask him questions regarding the incident for which he submitted his affidavit. Plaintiff then informed Mr. Reed that Mr. Reed was not required to participate in the deposition, that Plaintiff had not received a copy of the subpoena, and he then inquired whether Mr. Reed had received anything signed by the Court. Mr. Reed stated he had been served a subpoena, but nothing signed by the Court. I again instructed Plaintiff and Mr. Reed that pursuant to the Federal 2

Case 1:01-cv-01191-ZLW-MJW

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Rules of Civil Procedure Mr. Reed was required to cooperate with the deposition. Plaintiff again told Mr. Reed he was not required to do so. 8. The court reporter was then prepared to begin, and when the deposition started, Plaintiff waived his appearance and disconnected. 9. Mr. Reed did not want to answer the questions being asked of him. Within a few minutes of the deposition, Mr. Reed stated he would not answer a question. Counsel objected to the statement as nonresponsive and asked the question again. Mr. Reed again stated he would not be answering any questions. Counsel warned Mr. Reed that she would file a motion seeking a contempt order and sanctions, including attorney fees, if Mr. Reed did not answer questions. Counsel again repeated the previous question. Mr. Reed refused to answer, again counsel warned of possible ramifications. Mr. Reed indicated he did not care. He also asked at this time if he could have an attorney present. He was informed that one would not be appointed for him, he would have to hire an attorney. Mr. Reed then stated he would not answer any questions. Counsel ended the deposition, which was all of seven minutes long. 10. Plaintiff improperly informed Mr. Reed that he was not required to answer Defendants' questions. Even after undersigned counsel correctly stated Mr. Reed was under subpoena and the rules did require 3

Case 1:01-cv-01191-ZLW-MJW

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him to respond, Plaintiff argued that undersigned counsel was not being truthful in this statement. Plaintiff's conduct was willful and in total disregard for the Defendants' right to depose Mr. Reed. 11. Additionally, during the deposition, undersigned counsel repeatedly warned Mr. Reed of his obligations to cooperate and of possible sanctions. Mr. Reed was unconcerned. 12. Pursuant to Fed.R.Civ.P. 37, Defendants seek a contempt order against Mr. Reed and Plaintiff as well as sanctions, including attorneys fees, mileage, and dismissal of the complaint. 13. Undersigned counsel drove 252 miles roundtrip, and spent four and one half hours in travel and preparing for Mr. Reed's deposition, billed at $61.25 an hour. 14. If the Court chooses not to dismiss the complaint, Defendants request Mr. Reed's affidavit be stricken from the record, and he be disallowed from providing future affidavits as well as testimony at trial.

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Case 1:01-cv-01191-ZLW-MJW

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Respectfully submitted this 15th day of July 2005. JOHN W. SUTHERS Attorney General S/ Alisha M. Burris ALISHA M. BURRIS* Assistant Attorney General Corrections Unit Litigation Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: 303-866-4472 *Counsel of Record

CERTIFICATE OF SERVICE This is to certify that I have duly served the within MOTION FOR SANCTIONS upon all parties herein by depositing copies of same in the United States mail, first-class postage prepaid, at Denver, Colorado, this 15TH day of July 2005 addressed as follows:
James Dawson, 46709 Limon Correctional Facility 49030 State Highway 71 Limon, CO 80826

Cathie Holst Tammie Engel

Mr. Nicholas Reed, 67980 Fremont Correctional Facility P.O. Box 999 Canon City, CO 81215 S/ Michelle DeVivo

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