Free Response to Motion - District Court of Colorado - Colorado

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

Document 62

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, DR. WERMERS Defendants. 03-cv-2514-EWN-BNB

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 AND TREATMENT RECOMMENDATIONS

DEFENDANTS LARRY E. REID and DAVID D. HOLT, by and through their attorneys, CAIN & HAYTER, LLP, and pursuant to the Court's Order dated January 27, 2006 and entered as document number 59 on the Court's docket, hereby respond as follows 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 and Treatment Recommendations (filed in this matter on January 23, 2006 and entered as document number 57 on the Court's docket):

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

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1.

Pursuant to the Scheduling Order entered in this matter on November 22, 2005 (document number 54 on the Court's docket), the parties were to designate all experts and provide all materials required by Fed. R. Civ. P. 26(a)(2) on or before January 16, 2006.

2.

Plaintiff asserts in his Motion that the corrections facility at which he is incarcerated (Centennial Correctional Facility) has been on "lockdown [sic] for the past six weeks due to a facility shakedown" and that because of such lock down, he has been unable to access the law library and his legal documents. However, Plaintiff does not indicate why his inability to access the law library and/or his legal documents prevented him from designating his expert witnesses in accordance with the Court's Scheduling Order entered November 22, 2005, nor why an extension of 90 days is necessary to complete such designation.

3.

In this case, Plaintiff's specific argument is whether his medical need for laceless tennis shoes, outweighed the legitimate penological and security interests of Colorado State Penitentiary (CSP) in prohibiting such footwear (for all inmates and not solely Plaintiff), and whether such prohibition against tennis shoes by Defendants Holt and Reid constituted cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution.

4.

In his Motion, Plaintiff does not provide a name or address for the "private orthopedic specialist of his choice," he does not indicate when (or even if) an appointment is scheduled or why an extension of 90 days is sought and/or

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necessary, and he does not indicate why he should not be made to pay transportation or security fees for such transportation to the "private orthopedic specialist of his choice." 5. Pursuant to Fed. R. Civ. P. 16(b), a Scheduling Order shall not be modified except upon a showing of good cause. Plaintiff has failed to make a showing of good cause for the requested amendment to the Scheduling Order entered in this matter on November 22, 2005. 6. Defendants are not responsible for any of the Plaintiff's litigation costs incurred in obtaining an independent medical examination and/or expert witness testimony for trial in this matter and Defendants object to Plaintiff's request for an Order directing Defendants to transport Plaintiff to a private orthopedic specialist "with no transportation or security fees associated." 7. 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 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 (filed in this matter on January 23, 2006 and entered as document number 57 on the Court's docket).

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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

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