Free Response to Motion - District Court of Colorado - Colorado

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

Document 175

Filed 12/22/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-PAC MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES, et al., Defendants. ________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S FOURTH MOTION TO COMPEL FILED DECEMBER 4, 2006 ________________________________________________________________________ Defendants Lincoln, Rittenmeyer, and Robles, through counsel, respond to plaintiff's December 4, 2006, motion to compel (Doc. 169): 1. In his fourth motion to compel, plaintiff asserts that the defendants have

failed to provide full responses to five requests for production of documents (2, 7, 9, 12, and 15). This case remains pending against three defendants, who are being sued in their individual capacities. 2. Plaintiff initially served his request for production of documents on May 4,

2005. After being granted an extension of time to respond due to improper service of the request, the defendants responded to the discovery request on August 12, 2005. (As evidenced by plaintiff's exhibit list contained in the Pretrial Order, Garraway has obtained numerous documents from the Bureau of Prisons regarding his claims). Plaintiff's

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

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motion to compel sets forth the defendants' responses and objections. 3. After an October 19, 2005, hearing plaintiff's third motion to compel was

denied for his failure to comply with Local Rule 37.1 and Fed. R. Civ. P. 37. Doc. 130. 4. Plaintiff did not object to this order, nor did he file written objections to the

magistrate's July 24, 2006, recommendation for partial summary judgment on grounds he was wrongly denied material evidence. Doc. 145. 5. In filing his most recent motion to compel, plaintiff failed to comply with

D.C.COLO.LCivR 7.1 and Fed. R. Civ. P. 37(a)(2)(A). Because plaintiff has again failed to confer and attempt resolution of this issue prior to filing a motion to compel, even after being made aware of the requirement previously, his motion should again be denied. 6. Notwithstanding plaintiff's failure to comply with applicable rules of

procedure, he fails to provide any substantive factual or legal grounds to overcome the objections to the requests asserted by the defendants. Plaintiff has not shown that the defendants' objections are without merit. Additionally, plaintiff does not make clear that the information sought is still relevant to the remaining Eighth Amendment assault claim against the three remaining defendants. 7. Finally, plaintiff's motion is also untimely in that it was filed well after the

August 1, 2005, discovery cutoff in this case. Doc. 62. 8. For these reasons, plaintiff's motion should be denied.

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

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DATED this 22nd day of December, 2006. Respectfully submitted, TROY A. EID UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Amy L. Padden Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

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

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Filed 12/22/2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 22, 2006 foregoing with the Clerk of Court using the ECF system. I electronically filed the

In addition, I hereby certify that I have mailed the document to the following non CM/ECF participants: Mitchell Thephilus Garraway #39096-066 USP Lewisburg P.O. Box 1000 Lewisburg, PA 17837 And emailed it to: Benjamin J. Brieschke Attorney-Advisor Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, CO 81226 [email protected] s/Mark S. Pestal Office of the United States Attorney 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0404

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