Free Objection to Appeal of Magistrate Judge Decision - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

Document 257

Filed 04/12/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARY, SANDRA, AARON, JASON and CHARLES Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO OBJECTION TO MAGISTRATE JUDGE ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE RESPONSE TO CMI DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge, by and through their attorneys, Pryor Johnson Carney Karr Nixon, P.C., and submit the following Response to Objection to Magistrate Judge Order Denying Plaintiff's Motion for Extension of Time to File Response to CMI Defendants' Motion for Summary Judgment: 1. Defendants filed their Motion for Summary Judgment on March 1, 2006. On March

2, 2006, the Court Ordered Plaintiff to file a response to Defendants' Motion for Summary Judgment by March 21, 2006. On March 22, 2006, Plaintiff filed a Motion for Extension of Time to File Response to CMI Defendants' Motion for Summary Judgment. The Court denied Plaintiff's motion

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on March 23, 2006. 2. In his Motion for Extension of Time, Plaintiff states that he is in the middle of

discovery in one of his other lawsuits and is preparing a reply brief in two other lawsuits. Plaintiff also states he has had inadequate access to the law library. 3. In his present objection to the Magistrate's denial of his motion, Plaintiff states

the law library is only open twice per week, and reiterates the need to attend to his other lawsuits as grounds for an extension of time. 4. To date, Plaintiff has yet to file a response to Defendants' motion. Almost three

weeks have passed since Plaintiff requested an extension of time. Defendants submit that Plaintiff had ample opportunity to prepare a response to Defendants' Motion for Summary Judgment prior to the March 22, 2006 deadline. While Defendants understand Plaintiff is not an attorney, the legal issues relevant to this lawsuit are not novel ones for Plaintiff. Plaintiff himself refers to other cases in which he has filed other lawsuits pursuant to U.S.C. § 1983. A review of Plaintiff's pleadings in this case reveals that Plaintiff is well-familiar with the elements of a deliberate indifference claim. Nevertheless, to the extent Plaintiff needed additional legal research in order to respond to Defendants' motion, Defendants submit that he has had the time to do so since the filing of Defendants' motion, as Defendants' motion was filed almost a month and a half ago. 5. The discovery deadline in this case has long passed. As the Court is aware, this case

has been marked by considerable delay. While Defendants understand that some of the delay has been due to the difficulty in identifying and serving all of the Defendants, Plaintiff has been less than cooperative in terms of allowing Defendants to move forward with discovery. Specifically, Plaintiff -2-

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refused to provide the medical releases necessary for Defendants to obtain Plaintiff's medical records, despite the Court's Order of December 26, 2005 (Docket Number 187) that Plaintiff provide notarized releases within ten (10) days of the Court's Order. Plaintiff's obstreperous refusal to cooperate with the Court regarding the release of his medical records has significantly delayed this case. Defendants submit that Plaintiff's direct defiance of the Court's Order is reason enough to deny his present objection to the Magistrate's Order. 6. Defendants respectfully request that the Court deny Plaintiff's Objection to

Magistrate Judge Watanabe's Order denying Plaintiff's request for additional time to respond to Defendants' summary judgment motion. As Plaintiff has yet to respond to Defendants' motion, Defendants further request that the Court grant Defendants' motion and enter judgment in favor of Defendants. Respectfully submitted this 12th day of April, 2006.

s/Steven J. Wienczkowski Scott S. Nixon Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 ATTORNEYS FOR CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE

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CERTIFICATE OF SERVICE I hereby certify that on the 12th day of April, 2006, a true and correct copy of the foregoing was served via electronic filing, addressed to: Oloyea D. Wallin Reg. No. 111389 AVCF Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, Colorado 81034 Billy-George Hertzke, Esq. SENTER , GOLDFARB & RICE , LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290

s/Laura Buckingham Laura Buckingham on behalf of Pryor Johnson Carney Karr Nixon, P.C.

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