Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM

Document 90

Filed 07/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-OES MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ORDER COM PELLING DISCLOSURE PURSUANT TO RULE 37(a)(2)(4) ________________________________________________________________________ The defendants, through undersigned counsel, respond as follows to plaintiff's motion to compel filed July 7, 2005 (Doc. 82): 1. In his motion to compel, plaintiff, a pro se inmate, asserts that although on

May 2, 2005, he mailed a discovery request to the defendants that they have failed to respond to it. 2. The plaintiff, however, did not serve the undersigned counsel for the

defendants in this case, although he had entered an appearance as of October 12, 2004. Doc. 37. Moreover, it appears that the request was also improperly served because plaintiff attempted service by "institutional" mail on a number of the defendants.

Case 1:04-cv-01049-EWN-KLM

Document 90

Filed 07/22/2005

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3.

The undersigned was not provided a copy of the discovery request by any

other party or source and was not aware of it until he received the plaintiff's motion to compel. 4. Since then, the undersigned counsel has forwarded the request to the Bureau

of Prisons to be answered. In this regard, the defendants request up to and including August 12, 2005, in which to respond. 5. Plaintiff's motion to compel should be denied because he failed to comply

with Fed. R. Civ. P. 37(a)(2)(A), which requires that the movant certify that he has made a good faith effort to confer with the undersigned counsel about the matter before resorting to court intervention. The undersigned discussed this matter with Mr. Garraway on July 15, 2005, after his deposition. Mr. Garraway indicated to the undersigned counsel that he was not aware of the need to serve the defendants' counsel directly instead of serving the defendants personally. This would account for the undersigned counsel not being served. WHEREFORE the defendants respectfully request that plaintiff's motion be denied and that they be given up to and including August 12, 2005, in which to respond to plaintiff's discovery request filed on May 4, 2005.

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Case 1:04-cv-01049-EWN-KLM

Document 90

Filed 07/22/2005

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DATED this 21st day of July, 2005. Respectfully submitted, WILLIAM J. LEONE ACTING UNITED STATES ATTORNEY

s/ Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100

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Case 1:04-cv-01049-EWN-KLM

Document 90

Filed 07/22/2005

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on July 22, 2005, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: none, and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Mitchell Garraway #38096-066 Leavenworth Detention Center 100 Highway Terrace Leavenworth, KS 66048 United States Penitentiary Benjamin J. Brieschke Chris Synsvoll Attorney-Advisors Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, Colorado 81226

s/Mark S. Pestal Mark S. Pestal Assistant U.S. Attorney United States Attorney's Office 1225 Seventeenth, Suite 700 Denver, Colorado 80202 PH: (303) 454-0100 FX: (303) 454-0408

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