Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02514-EWN-BNB

Document 63

Filed 02/16/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: KERRY L. COURNOYER, Plaintiff, v. LARRY E. REID, DAVID D. HOLT. Defendants. 03-cv-2514-EWN-BNB

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR TRANSPORTATION TO DR. WEINERMAN

DEFENDANTS LARRY E. REID and DAVID D. HOLT, by and through their attorneys, CAIN & HAYTER, LLP, hereby respond as follows to Plaintiff's Motion for Transportation to Dr. Weinerman (filed in this matter on February 3, 2006 and entered as document number 60 on the Court's docket): 1. Defendants' Response to Plaintiff's Motion for Extension of Time to Designate a Private Orthopedic Specialist for the Record, and Request for the Court to Order Defendants to Transport Plaintiff to a Private Orthopedic Specialist of His Choice for Evaluation of His Injuries, filed contemporaneously hereto, is hereby incorporated by reference as if fully set forth herein. 2. Plaintiff's Motion requests that the Colorado Department of Corrections transport Plaintiff to Dr. Weinerman's office, located at 1411 South Potomac, Aurora, Page 1 of 4

Case 1:03-cv-02514-EWN-BNB

Document 63

Filed 02/16/2006

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Colorado, within 30 days of the date of Plaintiff's Motion (dated January 16, 2006, but not filed with the Court until February 3, 2006). Plaintiff does not provide the Court or Defendants with a date upon which an examination with Dr. Weinerman is scheduled. 3. Additionally, Plaintiff represents to the Court that the extension of time as requested in his Motion for Extension of Time to Designate a Private Orthopedic Specialist for the Record (filed in this matter on January 23, 2006 and entered as document number 57 on the Court's docket) will not be necessary if he is transported to Dr. Weinerman within 30 days. However, the deadline for the parties to file their expert disclosures in this matter was January 16, 2006 and the deadline for endorsing any rebuttal experts is February 17, 2006. 4. In his Motion, Plaintiff states that he "does not have time to wait for D.O.C. to review his request and is trying to meet court deadlines, plus there is no guarantee the Defendants will approve his request..." Plaintiff does not indicate that he has in fact submitted his request pursuant to the procedures for obtaining treatment by a private healthcare provider as set forth in Colorado Department of Corrections Administrative Regulation 700-21, nor does he advise the Court or Defendants why such request was not submitted prior to the deadline for the parties to exchange their expert disclosures, when such deadline was ordered by the Court on November 22, 2005.

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Case 1:03-cv-02514-EWN-BNB

Document 63

Filed 02/16/2006

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5.

In his Motion, Plaintiff does not indicate why he should not be made to pay transportation or security fees for such transportation to Dr. Weinerman. Defendants are not responsible for any of the Plaintiff's litigation costs incurred in obtaining an independent medical examination Defendants object to Plaintiff's request to be transported "free of charge" to Dr. Weinerman.

6.

Plaintiff is currently incarcerated at Centennial Correctional Facility, located in Canon City, Colorado, and his proposed Orthopedic Specialist is located in Aurora, Colorado, The mileage for round-trip transportation to Dr. Weinerman's office is approximately 240 miles. Additional factors for consideration of Plaintiff's request are the availability of adequate security staff and the security risk involved in transporting Plaintiff.

7.

Plaintiff's Motion for Transportation assumes that the Court will grant Plaintiff's Motion for Extension of Time to Designate a Private Orthopedic Specialist for the Record. Should the Court deny Plaintiff's Motion for Extension of Time to Designate a Private Orthopedic Specialist for the Record, Plaintiff's Motion herein is moot.

8.

Defendants also object to Plaintiff's request that the Court order that Defendants provide a pair of the "size 15, wide, blue canvas shoes Plaintiff was forced to wear." Such shoes are in the custody and control of the Plaintiff and it is Plaintiff's obligation to provide his proposed experts with any exhibits or evidence to be considered.

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Case 1:03-cv-02514-EWN-BNB

Document 63

Filed 02/16/2006

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9.

For all the reasons set forth herein, Defendants request that Plaintiff's Motion be denied. WHEREFORE Defendants pray for an Order denying Plaintiff's Motion for

Transportation to Dr. Weinerman (filed in this matter on February 3, 2006 and entered as document number 60 on the Court's docket). Respectfully submitted this 16th day of February, 2006.

s/ Kristine K. Hayter Kristine K. Hayter, No. 30357 CAIN & HAYTER, LLP 128 South Tejon, Suite 100 Colorado Springs, Colorado 80903 Telephone: (719) 575-0010 Fax: (719) 575-0020 Email: [email protected] Attorneys For Defendants Reid and Holt CERTIFICATE OF SERVICE I hereby certify that on this 16th day of February, 2006, a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO DESIGNATE A PRIVATE ORTHOPEDIC SPECIALIST FOR THE RECORD, AND REQUEST FOR THE COURT TO ORDER DEFENDANTS TO TRANSPORT PLAINTIFF TO A PRIVATE ORTHOPEDIC SPECIALIST OF HIS CHOICE FOR EVALUATION OF HIS INJURIES AND TREATMENT RECOMMENDATIONS was filed with the Court via ECF and a copy was placed in the United States Mail, postage prepaid and addressed to the following: Mr. Kerry L. Cournoyer, No. 100304 Colorado State Penitentiary PO Box 777 (E-2-16) Cañon City, Colorado 81215-0999 s/ Kristi Holtzberg Kristi Holtzberg, Paralegal Page 4 of 4