Free Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM Document 205 Filed 06/15/2007 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-PAC MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. KENNETH LINCOLN, LARRY RITTENMEYER, and MARK ROBLES, Defendants.

Page 1 of 10

FINAL PRETRIAL ORDER.

1. DATE OF CONFERENCE Date of Final Pre-Trial Conference: June 15, 2007 at 9:30 a.m. Counsel for Plaintiff: John D. Phillips and Michael D. Murphy Shughart Thomson & Kilroy, P.C. Mark S. Pestal and Amy L. Padden, Assistant United States Attorneys. 2. JURISDICTION This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Counsel for Defendants:

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

Document 205

Filed 06/15/2007

Page 2 of 10

3. CLAIMS AND DEFENSES a. Plaintiff' Claims: s Plaintiff, Mitchell T. Garraway, is incarcerated in the penitentiary known as USPFlorence in Florence, Colorado. Garraway alleges that on February 12, 2003, at or about 9:15 a.m., while incarcerated in the Special Housing Unit, he was carried to the office of Lieutenant Rittenmeyer against his will and while shackled with hand and leg restraints. He was placed in a chair in front of Rittenmeyer' desk. Rittenmeyer was seated at his desk, and proceeded to s berate and insult Garraway. Garraway rose from the chair. Rittenmeyer ordered the guards present in the room or just outside the room to " take him down,"whereupon Robles assisted by Lincoln struck Garraway and stepped on the leg chains to knock Garraway to the floor. Robles and Lincoln both struck Garraway after knocking him down. abused Garraway on the floor and kicked him in his face. Garraway asserts claims under the Eighth Amendment to the United States Constitution against Defendants for use of excessive force. He alleges that the Defendants maliciously and sadistically used force to cause him harm, that they did not act in good faith, and did not have a qualified immunity in the use of such force. Plaintiff seeks $15,000 in compensatory damages against each Defendant, and a corresponding amount of $15,000 for punitive damages against each Defendant. b. Defendants'Defenses: The defendants deny that plaintiff' constitutional rights were violated when he was s present in Lieutenant Rittenmeyer' office at the United States Penitentiary in Florence, s Colorado (USP Florence) on February 12, 2003. Although plaintiff, a federal inmate serving a life sentence for murder, was ordered to report to the Special Housing Unit (SHU) Lieutenant' s 2
2077790.1

Also, Rittenmeyer physically

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

Document 205

Filed 06/15/2007

Page 3 of 10

office, he refused. As a result of his refusal, after being restrained, he was escorted by several correctional officers to the office. After being seated in a chair in the office, Garraway moments later got out of the chair without permission and lunged at the escorting officers. Because he posed an immediate physical threat to the safety of the officers present, he was subdued with reasonable and necessary force. The use of reasonable force by the defendants and other officers was done in a good faith effort to restore order and protect the safety of the officers present and the institution. At no time did the defendants (or the other officers present) act with a malicious or sadistic motive to cause plaintiff injury or pain. The force used did not cause Garraway more than de minimis, if any, physical injury. 4. STIPULATIONS None at this time. 5. PENDING MOTIONS None at this time. 6. WITNESSES a. Non-Expert Witnesses Plaintiff' Will Call Witnesses s Mitchell T. Garraway, Reg. No. 38096-066 Federal Correctional Institution-Englewood 9595 West Quincy Avenue Littleton, CO 80123 Plaintiff' May Call Witnesses: s Celeste Collins, Mid-Level Practitioner U.S. Medical Center for Federal Prisoners 1900 Sunshine Street Springfield, MO 65807-2240 Guy Drennan 3
2077790.1

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

Document 205

Filed 06/15/2007

Page 4 of 10

FCI-Leavenworth 1300 Metropolitan Ave. Leavenworth, KS 66047 Dale Grafton Federal Correctional Complex, USP-Coleman 846 NE 54th Terrace, P.O. Box 1023 (Staff Mail) Coleman, FL 33521-1029 Kevin Grigsby FCI-Florence, P.O. Box 6500 5880 State Highway 67 South Florence, CO 81226. Joseph Gunja Bureau of Prisons, Western Regional Office 7590 Dublin Blvd., 3rd Floor Dublin, CA Denise Huett USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 Mike Maroni USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 Lieutenant Leonel Ortega FCI Three Rivers Highway 72 West Three Rivers, TX 78071 Hector Alfonso Rios USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 Richard Sams USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226

4
2077790.1

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

Document 205

Filed 06/15/2007

Page 5 of 10

Steven Santiago, Senior Officer Specialist USP Coleman II P. O. Box 1024 Coleman, FL 33521-1024 Claude Spann, Senior Officer FCI-Bastrop, P.O. Box 730 1341 Highway 95 North Bastrop, TX 78602 Lieutenant Benjamin Valle FCI-Herlong, P.O. Box 9000 741-925 Herlong Access Road A-25 Herlong, CA 96113 Lieutenant Kenneth Lincoln USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Lieutenant Lee Rittenmeyer Emergency Preparedness Officer USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Mark Robles, Senior Officer Specialist USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Larry Smith, Discipline Hearing Officer Address unknown Any witness needed for foundation, impeachment, or rebuttal. Any witness listed by defendants.

5
2077790.1

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

Document 205

Filed 06/15/2007

Page 6 of 10

Defendants'Will Call Witnesses Celeste Collins, Mid-Level Practitioner U.S. Medical Center for Federal Prisoners 1900 Sunshine Street Springfield, MO 65807-2240 Lieutenant Kenneth Lincoln USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454

Lieutenant Lee Rittenmeyer Emergency Preparedness Officer USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Mark Robles, Senior Officer Specialist USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Andrew Watson. Senior Officer Specialist USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 Defendants'May Call Witnesses: Dale Grafton, Case Manager UPS Coleman II, P.O. Box 1024 Coleman, FL 33521-1024 (352) 689-7000 Mike Maroni, Inmate Systems Officer USP-Florence, P.O. Box 7500 5800 State Highway 67 South Florence, CO 81226 (719)784-9454 6
2077790.1

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

Document 205

Filed 06/15/2007

Page 7 of 10

Lieutenant Leonel Ortega FCI Three Rivers Highway 72 West ThreeRivers, TX 78071 (361) 786-3576 Warden Hector Rios USP Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454

Richard Sams, Counselor USP-Florence, P.O. Box 7500 5880 State Highway 67 South Florence, CO 81226 (719) 784-9454 Steven Santiago, Senior Officer Specialist USP Coleman II, P.O. Box 1024 Coleman, FL 33521-1024 (352) 689-7000 Claude Spann, Senior Officer FCI Bastrop, P.O. Box 730 1341 Highway 95 North Bastrop, TX 78602 (512) 321-3903 Lieutenant Benjamin Valle FCI Herlong, P.O. Box 9000 741-925 Herlong Access Rd. A-25 Herlong, CA 96113 (530) 827-8000 Johnny Chavez, Special Investigative Agent USP Florence 5880 State Highway 67 South Florence, CO 81226 Bureau of Prisons Records Custodian Any witness needed for foundation, impeachment, or rebuttal. 7
2077790.1

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

Document 205

Filed 06/15/2007

Page 8 of 10

Any witness listed by plaintiff. b. Expert Witnesses

The parties do not intend to call any expert witnesses endorsed pursuant to Fed.R.Civ.P. 26(a)(2). 7. EXHIBITS a. List of Exhibits (1) Plaintiff: (a) (b) (c) (d) After-Action Review Report Report of Incident Discipline Hearing Officer Report (Expunged) Declarations of Drennan, Ortega, Watson, Spann, Rios, Sams, Rittenmeyer, Grafton, Lincoln, Collins, Robles, Maroni, Gunja, Santiago, Valle and Brieschke Memoranda to Rittenmeyer from Spann, Grafton, Sams, Watson, Lincoln, Ortega and Robles Memorandum for J.E. Gunja, Warden, USP Florence, Colorado from John Dignam, Chief, Office of Internal Affairs, dated November 13, 2003, and attached to the OIA Investigative Report Discovery documents: (i) Interrogatories for Officers C. Spann and Santiago regarding 12 Feb 2003 Incident Report (ii) 8/11/05 Defendants'Response to Plaintiff' Opening Request for s Production of Documents to Defendant Federal Bureau of Prisons, et al. (iii) 3/26/07 Defendants' Response to Plaintiff' Discovery Request s (iv) Defendants' Corrected Response to Plaintiff' Discovery Request s (v) 5/8/07 Bureau of Prisons Response to Plaintiff' 30(b)(6) Request s 28 CFR §§ 541.17-541.20 Program Statement No. 5566.05 Program Statement No. 5500.09 Inmate Admission and Orientation Handbook for USP-Florence In-Transit Data Forms (5/19/98 and current) Personnel folders for Defendants Demonstrative exhibits All exhibits introduced by Defendants Exhibits for impeachment, foundation and rebuttal.

(e) (f)

(g)

(h) (i) (j) (k) (l) (m) (n) (o) (p)

8
2077790.1

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

Document 205

Filed 06/15/2007

Page 9 of 10

(2)

Defendants (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) Inmate Profile Inmate Discipline Data Judgment and Conviction Sentence Computation and Monitoring Data Daily Assignment Roster February 12, 2003 Assignment History Report Photographs of USP SHU Diagram of SHU Lieutenant' Office s Inmate Medical File Hand and Leg Restraints (for demonstrative purposes) Any exhibit used by plaintiff Any exhibit needed for foundation, impeachment, or rebuttal.

b. Copies of listed exhibits must be provided to opposing counsel no later than thirty (30) days after the Final Pretrial Conference. The objections contemplated by Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven (11) days after the exhibits are provided. 8. DISCOVERY The deposition of Larry Smith, the Discipline Hearing Officer at USP-Florence, at the time of the incident is the only discovery remaining. The parties had been unable to locate Mr. Smith, who is no longer employed by the Bureau of Prisons, until earlier this week. The parties are scheduling his deposition for the week of June 17, because Mr. Smith will be out of the country through June 16. 9. SPECIAL ISSUES None. 10. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings

9
2077790.1

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

Document 205

Filed 06/15/2007

Page 10 of 10

11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE a. b. Trial will be to a jury. Trial is anticipated to take three (3) days Trial Date: September 17, 2007

c. Trial Preparation Conference Date and Time: September 14, 2007 at 4:30 o' clock p.m. in Room A273 (Chief Judge Nottingham' chambers). At the trial preparation conference, s counsel are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference. DATED this 15th day of June, 2007. BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM Chief United States District Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW: TROY A. EID United States Attorney /s/ Mark S. Pestal Mark S. Pestal Amy L. Padden Assistant U.S. Attorneys 1225 17th Street, Ste. 700 Denver, CO 80202 303-454-0100 [email protected] [email protected] Attorneys for Defendants

Shughart Thompson & Kilroy P.C. /s/ John D. Phillips John D. Phillips Michael D. Murphy 1050 17th Street, Ste. 2300 Denver, CO 80265 (303) 572-9300 [email protected] [email protected] Attorneys for Plaintiff

10
2077790.1