Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00375-EWN-BNB

Document 192

Filed 01/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-00375-EWN-BNB ANTHONY RAY MARTINEZ, Plaintiff, v. ESTHER SMITH, and C.P.O. SUSAN KELLER, Defendants.

DEFENDANT SMITH'S RESPONSE IN OPPOSITION TO MOTION TO CONSOLIDATE BY DEFENDANT SUSAN KELLER Defendant Esther Smith responds to and opposes the Motion to Consolidate by Defendant Susan Keller ("Motion") and states as follows: INTRODUCTION Plaintiff's complaint in this matter involves activities that occurred while Plaintiff was a resident at the Ulster Street Community Treatment Center ("Ulster Facility") from October 2, 2003, until December 27, 2003. In short, Plaintiff's complaint alleges that the original named defendants failed to protect him from injury at the hands of another resident of the Ulster Facility. Defendant Smith denies the material allegations in Plaintiff's complaint. Additionally, Defendant Smith and Plaintiff are very close to a settlement in this matter and the amendment of the complaint to include additional parties risks derailing that settlement and causing Defendant Smith additional expense.

Case 1:04-cv-00375-EWN-BNB

Document 192

Filed 01/09/2007

Page 2 of 4

Following Plaintiff's escape from the Ulster Facility and subsequent capture, Plaintiff was returned to the custody of the Department of Corrections and was initially housed at the Sterling Correctional Facility (the "Sterling Facility"). Defendant Smith is informed and believes that Plaintiff was subsequently transferred to the Limon Correctional Facility (the "Limon Facility"). On August 26, 2005, Plaintiff filed a separate complaint (the "Sterling Complaint") in this Court under case no. 05-CV-1659, asserting claims against four individuals: Governor Bill Owens; Joe Ortiz, Executive Director of the Colorado Department of Corrections; Gary Golder, the Warden of the Sterling Facility; and Captain John Gibson, a Correctional Officer at the Sterling Facility (collectively, the "Sterling Defendants"). A true and correct copy of the Sterling Complaint is attached hereto as Exhibit A. In short, in the Sterling Complaint Plaintiff alleges that (1) Gibson assaulted Plaintiff while he was housed at the Sterling Facility, (2) the other Sterling Defendants failed to protect Plaintiff from the alleged assault by Gibson, and (3) the Sterling Defendants are responsible for the alleged loss of Plaintiff's glasses while he was housed at the Sterling Facility. Defendant Smith opposes any amendment of the complaint in this action. ARGUMENT I. The Allegations Contained In The Sterling Complaint Are Completely Unrelated And Should Not Be Joined In This Action. "[P]ersons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact in common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). Because the substantive allegations in the Sterling Complaint that Plaintiff seeks to incorporate into this

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Case 1:04-cv-00375-EWN-BNB

Document 192

Filed 01/09/2007

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action are completely unrelated in time and location and involve a completely different set of individuals than the substantive allegations contained in the complaint in this case, they do not arise out of the same transaction, occurrence, or series of transactions or occurrences, and neither the Sterling Defendants nor "Sgt. Smith of transport" may be properly joined in this action. Furthermore, to incorporate the Sterling Complaint into the present action would cause an undue burden on Defendant Smith and unnecessarily increase her litigation expenses. No good cause exists to permit Plaintiff to amend his complaint in the manner proposed, and the Court should deny Plaintiff's Motion with prejudice. WHEREFORE, Defendant Smith respectfully requests that the Court deny the Motion to Consolidate of Defendant Susan Keller, and for such further relief as the Court finds appropriate. Dated: January 9, 2007 Respectfully submitted, s/Patrick F. Carrigan _____________ Patrick F. Carrigan Laura A. Hutchings FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, CO 80302 Telephone: (303) 447-7700 Facsimile: (303) 447-7800 [email protected] [email protected] ATTORNEYS FOR DEFENDANT ESTHER SMITH

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Case 1:04-cv-00375-EWN-BNB

Document 192

Filed 01/09/2007

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 9, 2007, I filed and served the foregoing DEFENDANT SMITH'S RESPONSE IN OPPOSITION TO MOTION TO CONSOLIDATE BY DEFENDANT SUSAN KELLER via with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following persons: Alisha M. Burris 1525 Sherman Street, 5th Floor Denver, CO 80203 and on the following via United State mail, postage prepaid: Anthony Ray Martinez Prisoner No. 114709 4-R San Carlos Correctional Facility P.O. Box 3 Pueblo, CO 81002 s/Patrick F. Carrigan _________________________________

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