Free Motion for Extension of Time to File Response/Reply - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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Filed 08/17/2006

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Civil Action Number 03-cv-01959-MSK-PAC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger

AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

PLAINTIFF' UNOPPOSED MOTION FOR EXTENSION OF TIME TO S RESPOND TO FEDERAL OFFICERS' MOTION FOR SUMMARY JUDGMENT

COMES NOW, Plaintiff Ahmad M. Ajaj, by and through his counsel, Montgomery Little Soran Murray & Kuhn, P.C., respectfully submits this unopposed motion for an extension of time pursuant to D.C.COLO.LCivR 6.1 and F.R.C.P. 56(f) to and including August 28, 2006, within which to respond to Federal Officers' Motion for Summary Judgment. Plaintiff requests this extension of time due to the fact that the Plaintiff was not able to take the deposition of an essential witness, former Regional Director, Greg Hershberger, until August 11, 2006. Plaintiff ordered an expedited copy of the deposition transcript, but has not yet received the deposition transcript. Plaintiff believes the testimony in the forthcoming transcript, described in further detail below, is

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critical for his response to the Defendants' Motion for Summary Judgment. In order for Plaintiff to adequately respond to and overcome Federal Officers' Motion for Summary Judgment, Plaintiff must be able to review and present to the Court all available evidence of record in this case. As further grounds for this Motion, Plaintiff states as follows: 1. D.C.COLO.LCivR 7.1A Certification. Counsel for Plaintiff has spoken Ms. Rocque indicated she has no

with counsel for Defendants, Amanda Rocque.

objection to Plaintiff' request for an extension of time until August 28, 2006. s 2. On May 22, 2006, the Court held a hearing on the parties'Joint Motion for

Reconsideration of Order Denying Joint Motion to Vacate and Re-Set Trial Date and Request for Scheduling Hearing. At the hearing on May 22, 2006, the Court entered an order vacating the trial set for July 11, 2006 and entered a scheduling order outlining an expedited timeline for discovery in this case. At this hearing the Court stated as follows: "What you are bypassing is there will be no more dispositve motions, no motions for summary judgment. We' going to trial." (Docket No. 204, at 17-18.) re 3. On July 17, 2006, the Federal Officers requested leave to file a summary

judgment motion and tendered a 42 page Motion for Summary Judgment. On July 19, 2006, the Court granted Defendants leave to file a summary judgment motion within the 20-page limit on the sole issue of whether the Federal Officers are entitled to qualified immunity. The Court indicated there would be the standard response time under the Rules. 4. On July 28, 2006, the Federal Officers' filed their Motion for Summary

Judgment asserting the defense of qualified immunity. (Docket No. 229).

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5.

Since the hearing on May 22, 2006, the parties have engaged in

significant discovery in this case, including taking Plaintiff' and the Defendants' s depositions. 6. However, Plaintiff was unable to take the deposition of Greg Hershberger,

former Regional Director of the Bureau of Prisons, until August 11, 2006. As stated above, Mr. Hershberger' transcript was ordered in an expedited fashion, but to date has s not been received. 7. Plaintiff believes Mr. Hershberger is a key witness and that his deposition

testimony will be important in the response to Defendants' Motion for Summary Judgment. Among other central issues, Mr. Hershberger provided testimony regarding the following issues relevant to Plaintiff' claim: who approved Plaintiff' transfer to the s s United States Penitentiary Administrative Maximum ("ADX") in Florence, Colorado, how it was approved, what documents were reviewed prior to Mr. Ajaj' transfer, what s process occurred prior to the transfer, why the transfer occurred, whether other inmates have been stepped down and transferred out of ADX, and which inmates have been allowed to do so. 8. Additionally, Plaintiff' counsel has been able to arrange only limited s

legal calls to Plaintiff, which is apparently due to an influx of prisoners being transferred to the ADX. As a result, undersigned counsel has not had adequate opportunity to discuss all of the issues raised in Defendants' Motion for Summary Judgment or to sufficiently go through the response with Plaintiff. 9. Finally, the deposition of Plaintiff' expert, Dr. Clifford was taken on s

August 15, 2006 and the deposition transcript has also not been received. This deposition testimony will provide evidence that should be considered by the Court in Plaintiff' s response to Defendants'Motion for Summary Judgment.

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10.

Given the dipositive nature of the Motion for Summary Judgment filed by

Defendants, Plaintiff' counsel requests this brief extension so that Plaintiff has all the s evidence of record available to submit to the Court and so that undersigned counsel has the opportunity to adequately discuss with Mr. Ajaj the final response before it is filed. 11. 12. A proposed order is being submitted with this Motion. No party will be prejudiced by this request for a short extension.

WHEREFORE, Plaintiff Ahmed M. Ajaj respectfully requests an extension of time to and including August 28th, 2006, within which to respond to Federal Officers' Motion for Summary Judgment.

Respectfully submitted this 17th day of August, 2006.

s/ Carmen N. Reilly______________ Carmen N. Reilly Montgomery Little Soran Murray & Kuhn, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Telephone: (303) 773-8100 Facsimile: (303) 220-0412 E-mail: [email protected] Attorneys for Plaintiff Ahmed M. Ajaj

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CERTIFICATE OF SERVICE I hereby certify that on August 17, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Amanda Rocque, Esq. 1225 17th Street, Suite 700 Denver, Colorado 80202 [email protected] Elizabeth A. Weishaupl, Esq. Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 [email protected] I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants via U.S. Mail, postage prepaid, indicated by the nonparticipant' name, addressed to: s Chris Synsvoll, Esq. Supervisor Legal Department U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 Ahmed M. Ajaj #40637-053 U.S. Penitentiary Max P.O. Box 8500 Florence, Colorado 81266-8500 s/ Deborah J. Harant_________________ Deborah J. Harant

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