Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-00466 ­ZLW-BNB JAMES RALPH DAWSON, JR., Plaintiff, v. THE COLORADO DEPARTMENT OF CORRECTIONS EX REL AL ESTEP, SHANE JOHNSON, JOHN BOWKER, ENDRE SAMU, and DANY ADAMS, Defendants.

PROPOSED PRETRIAL ORDER
1. DATE OF CONFERENCE Date of Pretrial Conference: Set by Court Order on March 2, 2006 at 8:30 am in Courtroom A401 before Magistrate Judge Boyd N. Boland. Appearances: Plaintiff, for himself: James Dawson, pro se Limon Correctional Facility, Reg. 46709 49030 State Highway 71 Limon, CO 80826 Counsel for Defendants: Nicole Gellar, Esq. Office of the Attorney General 1525 Sherman Street, 5th Floor Denver, Colorado 80203 (303) 866-5161

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2. JURISDICTION Plaintiff alleges claims arising under 42 U.S.C. § 1983. Jurisdiction is proper pursuant to 28 U.S.C. § 1343(a)(3) and § 1331, as Plaintiff alleges that he was deprived, under color of state law, statute, ordinance, regulation, custom or usage, of rights secured by the Constitution of the United States. Defendants do not deny jurisdiction or contest venue.

3. CLAIMS AND DEFENSES A. 1. Plaintiff asserts that: Defendants Bowker and Johnson improperly induced him to draft a written offer to drop any further grievances or lawsuits in exchange for a porter job at the Limon Correctional Facility. This conduct caused Plaintiff to be convicted of bribery in violation of the COPD. Plaintiff claims that Defendants Samu, Adams and Estep conspired with Defendants Johnson and Bowker. Plaintiff alleges that Defendants acted in retaliation against him for exercising his right of access to the Courts. 1 B. 1. Defendants assert that: Defendants state Plaintiff did not exercise a constitutional right for which he was allegedly retaliated against. Defendants deny they retaliated against Plaintiff. All of Defendants' actions were done for legitimate penological interests.

Defendants note that at the time of the preparation of the Proposed Final Pre-Trial Order, there is a pending Recommendation that the Motion for Partial Summary Judgment filed on behalf of the CDOC, Samu, Adams and Estep be granted. Plaintiff objects. As the Court has not yet issued a ruling regarding the motion, Defendants maintain the defenses asserted within this motion on behalf the CDOC, Samu, Adams and Estep. 2

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2.

Defendants Bowker and Johnson deny that they improperly induced Plaintiff to draft a letter indicating that he would drop any further grievances or lawsuits in exchange for a porter position at the Limon Correctional Facility. Defendants deny Plaintiff's allegations that they retaliated against him for exercising his right of access to the courts. Defendants' actions and applicable CDOC regulations are supported by legitimate penological interests, goals and objectives.

3.

Plaintiff's claims are barred in whole or in part by the requirements of the Prison Litigation Reform Act.

4. 5. 6.

Defendants are entitled to qualified immunity. Defendants are entitled to immunity under the Eleventh Amendment. Plaintiff's claims are barred because he failed to obtain a "favorable termination" of the underlying COPD conviction in the state courts. See e.g., Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).

7.

Plaintiff's claims against Defendants Samu, Adams and Estep fail due to lack of personal participation. 4. STIPULATIONS

The following matters are undisputed and stipulated to by the parties: 1. Plaintiff is currently incarcerated in the Colorado Department of Corrections, and was incarcerated at the Limon Correctional Facility at the time of the alleged retaliation.

4. COMPUTATION OF DAMAGES a. Plaintiff: The Plaintiff is seeking $1 Nominal Damages per Defendant and $250

Punitive Damages per Defendant.

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b.

Defendants:

None.

5. PENDING MOTIONS Discovery has been completed. Plaintiff has objected to Magistrate Judge Boland's Recommendation that the Motion for Partial Summary Judgment filed on behalf of the CDOC, Samu, Adams and Estep be granted. The Motion for Partial Summary Judgment is pending.

6. WITNESSES A. Plaintiff's Witnesses: 1. Defendant Al Estep, Limon Correctional Facility. Mr. Estep is expected to testify

and/or has information regarding the allegations as stated against him in Plaintiff's Civil Rights Complaint. 2. Defendant Shane Johnson, Limon Correctional Facility. Mr. Johnson is expected

to testify and/or has information regarding the allegations as stated against him in Plaintiff's Civil Rights Complaint. 3. Defendant John Bowker, Limon Correctional Facility. Mr. Bowker is expected to

testify and/or has information regarding the allegations as stated against him in Plaintiff's Civil Rights Complaint. 4. Defendant Endre Samu, Limon Correctional Facility. Mr. Samu is expected to

testify and/or has information regarding the allegations as stated against him in Plaintiff's Civil Rights Complaint.

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5.

Defendant Dany Adams, Limon Correctional Facility. Mr. Adams is expected to

testify and/or has information regarding the allegations as stated against him in Plaintiff's Civil Rights Complaint. 6. Plaintiff James Dawson, Jr., Limon Correctional Facility. Mr. Dawson has

information regarding the allegations against the named Defendants as stated in his civil rights complaint.

B.

Defendants' Witnesses:

Will Call: 1. James Dawson, Limon Correctional Facility, Limon Correctional Facility, (LCF)

P.O. Box 10000 Limon, CO 80826. Mr. Dawson is expected to testify regarding his allegations of retaliation and conspiracy against Defendants and his history of making retaliation and/or conspiracy allegations against CDOC staff. 2. John Bowker, Limon Correctional Facility, Limon Correctional Facility, (LCF)

P.O. Box 10000 Limon, CO 80826. (719) 775-9221. Mr. Bowker will testify regarding Plaintiff's threats to file grievances and/or bring lawsuits unless he was given prison employment; his discussion of these threats with Shane Johnson; his preparation of an incident report concerning the same; his job duties at the time of the incident(s); his involvement in the Code of Penal Disciplinary proceedings and conviction arising out of the incident and any other matters necessary to rebut James Dawson's allegations/testimony. 3. Shane Johnson, Limon Correctional Facility, Limon Correctional Facility, (LCF)

P.O. Box 10000 Limon, CO 80826. (719) 775-9221. Mr. Johnson will testify regarding Plaintiff's threats to file grievances and/or bring lawsuits unless he was given prison

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employment; his discussion of these threats with John Bowker; his preparation of an incident report concerning the same; his job duties at the time of the incident(s); his involvement in the Code of Penal Disciplinary proceedings and conviction arising out of the incident and any other matters necessary to rebut James Dawson's allegations/testimony. May Call: 1. Dany Adams, Limon Correctional Facility, Limon Correctional Facility, (LCF)

P.O. Box 10000 Limon, CO 80826. (719) 775-9221. Mr. Adams may testify regarding his investigation of Plaintiff's threats to file grievances and/or bring lawsuits unless he was given prison employment; his involvement in the Code of Penal Disciplinary proceedings and conviction arising out of the incident; the process by which COPD charges are made, investigated and brought to a hearing and any other matters necessary to rebut James Dawson's allegations/testimony. 2. Al Estep, Limon Correctional Facility, Limon Correctional Facility, (LCF) P.O.

Box 10000 Limon, CO 80826. (719) 775-9221. Mr. Estep may testify regarding Plaintiff's conspiracy and retaliation allegations against him; Plaintiff's threats to file grievances and/or bring lawsuits unless he was given prison employment; his involvement in the Code of Penal Disciplinary proceedings and conviction arising out of the incident and any other matters necessary to rebut James Dawson's allegations/testimony. 3. Endre Samu, Limon Correctional Facility, Limon Correctional Facility, (LCF)

P.O. Box 10000 Limon, CO 80826. (719) 775-9221. Mr. Samu may testify regarding Plaintiff's conspiracy and retaliation allegations against him; Plaintiff's threats to file grievances and/or bring lawsuits unless he was given prison employment; his involvement in the Code of Penal Disciplinary proceedings and conviction arising out of the incident; the process by which COPD

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charges are made, investigated and brought to a hearing; and any other matters necessary to rebut James Dawson's allegations/testimony. Mr. Samu may also testify regarding James' Dawson's history of COPD convictions and CDOC records concerning the same. 4. Delayne Tornowski, Limon Correctional Facility ("LCF") P.O. Box 10000

Limon, CO 80826, (719) 775-7601. Mr. Tornowski may be called to authenticate the COPD records in COPD Case No. 030730 and/or other COPD records in other cases as necessary. Mr. Tornowski may also be called to testify regarding the penological interests in prohibiting inmates from misusing grievances procedures and/or lawsuits to manipulate corrections officers and staff. 5. Tammi Engell, Limon Correctional Facility ("LCF") P.O. Box 10000 Limon, CO

80826, (719) 775-9221. Ms. Engell may be called to authenticate the COPD records in COPD Case No. 030730 and/or other COPD records in other cases as necessary. 6. Tony Decesaro, Step III Grievance Officer and/or Karle Gilge, Colorado

Department of Corrections, 2862 S. Circle Drive, Suite 400, Colorado Springs, CO 80906, (719) 579-4238. Mr. Decesaro or Ms. Gilge may testify regarding the grievance process for the CDOC, the volume and frequency with which grievances are filed and the handling of the same. Cathie Holst, 2862 Circle Drive, Suite 400, Colorado Springs, CO 80906-4122, (719) 579-9580. Ms. Holst may be called to testify regarding the CDOC process for handling and defending employees against inmate litigation as well as grievances filed against employees; the volume of such lawsuits and grievances; and the impact, if any, on the employment of personnel against whom such suits and grievances are brought. Ms. Holst may also testify regarding the

penological interests in prohibiting inmates from misusing grievances procedures and/or lawsuits to manipulate corrections officers and staff.

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7.

Custodian of Records, in care of Colorado Department of Corrections, 2862

Circle Drive, Suite 400, Colorado Springs, CO 80906-4122. A custodian of records may be called to testify to authenticate and establish foundational matters concerning documents relating to Colorado Department of Corrections' policies, regulations, grievances, COPD Records, chronological records and inmate records if those documents are not stipulated to before trial. 8. 9. Any witnesses necessary for impeachment and/or rebuttal. Any witness listed by Plaintiff.

7. EXHIBITS A. Plaintiff's Exhibits: 1. Plaintiff's Step I Grievance dated October 10, 2002, which is Exhibit A of the Plaintiff's Civil Rights Complaint regarding the prison created job disparity. 2. Plaintiff's Step II Grievance dated October 21, 2002, which is Exhibit B of the Plaintiff's Civil Rights Complaint. 3. Plaintiff's Step III Grievance dated November 5, 2002, which is Exhibit A of the Plaintiff's Civil Rights Complaint. 4. Inmate Clayton Phillips Step I Grievance dated May 21, 2002, which is Exhibit D of the Plaintiff's Civil Rights Complaint. 5. Plaintiff's letter to Edd C. Gillespie dated November 5, 2002, which is Exhibit E of the Plaintiff's Civil Rights Complaint. 6. Edd Gillespie's response to the Plaintiff's letter and grievances dated November 28, 2002, which is Exhibit F of the Plaintiff's Civil Rights Complaint.

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7.

Notice of Charges document dated November 20, 2002, which is Exhibit G of the Plaintiff's Civil Rights Complaint.

8.

Employee Incident Report document dated November 4, 2002, which is Exhibit H of the Plaintiff's Civil Rights Complaint

9.

Disposition of Charges document dated November 27, 2002, which is Exhibit I of the Plaintiff's Civil Rights Complaint

10.

Plaintiff's Step I Grievance dated November 28, 2002, which is Exhibit K of the Plaintiff's Civil Rights Complaint.

11.

Inmate Appeal Form dated November 27, 2002, which is Exhibit J of the Plaintiff's Civil Rights Complaint.

12.

Plaintiff's Step II Grievance dated January 9, 2003, which is Exhibit L of the Plaintiff's Civil Rights Complaint.

13.

Plaintiff's Step III Grievance dated February 3, 2002, which is Exhibit M of the Plaintiff's Civil Rights Complaint.

14.

Anthony A. Decesaro's response to the Plaintiff's grievances dated February 14, 2003, which is Exhibit N of the Plaintiff's Civil Rights Complaint.

15.

Letter to Defendant Shane Johnson dated November 4, 2002, which is Exhibit No. 3 of the Defendants Motion to Dismiss filed September 3, 2003.

16.

Request for Interview document dated November 5, 2002, which is Exhibit No. 4 of the Defendants Motion to Dismiss filed September 3, 2003.

B.

Defendants' Exhibits 1. CDOC AR 150-01, effective November 2002, including attached forms and memorandum.

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2.

CDOC AR 850-04, effective October and November 2002, including attached forms and memorandum.

3. 4.

Plaintiff's Civil Rights Complaint filed March 17, 2003 and attachments. Defendants' First Set of Interrogatories and Requests for Production of Documents.

5.

Plaintiff's Responses to Defendants' First Set of Interrogatories and Requests for Production of Documents.

6.

Document dated November 5, 2002, Request for Interview Form, from James Dawson to Case Manager regarding dropping grievance concerning "job situation."

7.

Letter dated November 4, 2002 from James Dawson to Shane Johnson regarding dropping any pending grievances/complaints if given porter position.

8.

Letter dated November 5, 2002 from James Dawson to Edd Gillespie regarding dropping any pending grievances/complaints if given porter position.

9.

Plaintiff's Step I Grievance dated October 10, 2002, which is Exhibit A of the Plaintiff's Civil Rights Complaint regarding the prison created job disparity.

10.

Plaintiff's Step II Grievance dated October 21, 2002, which is Exhibit B of the Plaintiff's Civil Rights Complaint.

11.

Plaintiff's Step III Grievance dated November 5, 2002, which is Exhibit C of the Plaintiff's Civil Rights Complaint.

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12.

Inmate Clayton Phillips Step I Grievance dated May 21, 2002, which is Exhibit D of the Plaintiff's Civil Rights Complaint.

13.

Letter from James Dawson to Edd Gillespie dated November 5, 2002, which is Exhibit E of Plaintiff's Civil Rights Complaint.

14.

Edd Gillespie's response to the Plaintiff's letter and grievances dated November 28, 2002, which is Exhibit F of the Plaintiff's Civil Rights Complaint.

15. 16.

Notice of Charges for Case No. 030730 dated November 20, 2002. Incident Report for COPD Case No. 030730 dated November 4, 2002 by Shane Johnson.

17. 18.

Incident Report dated November 26, 2002 by John Bowker. Disposition of Charges for COPD Case No. 030730 dated November 27, 2002.

19. 20. 21.

Appeal Form for COPD Case No. 030730 dated December 3, 2002. Transcript of Hearing Tape for COPD Case No. 030730. Plaintiff's Step I Grievance dated November 28, 2002, which is Exhibit K of the Plaintiff's Civil Rights Complaint.

22.

Inmate Appeal Form dated November 27, 2002, which is Exhibit J of the Plaintiff's Civil Rights Complaint.

23.

Plaintiff's Step II Grievance dated January 9, 2003, which is Exhibit L of the Plaintiff's Civil Rights Complaint.

24.

Plaintiff's Step III Grievance dated February 3, 2002, which is Exhibit M of the Plaintiff's Civil Rights Complaint.

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25.

Anthony A. Decesaro's response to the Plaintiff's grievances dated February 14, 2003, which is Exhibit N of the Plaintiff's Civil Rights Complaint.

26.

Letter to Al Estep from James Dawson dated November 21, 2002 regarding alleged retaliation.

27.

Plaintiff's Motion to Invoke Court's Jurisdictional Assistance Pursuant to 18 U.S.C. 241 and 242/245 and attachments, filed November 1, 2005.

28.

Letter to the Court dated July 26, 2005 from Plaintiff regarding alleged retaliation and attachments, including Plaintiff's affidavit and letter by or concerning inmate Steve Williams.

29.

Letter to the Defendants' counsel dated March 1, 2005 from Plaintiff regarding alleged retaliation.

30.

Letter to the Court dated July 26, 2005 from Plaintiff regarding alleged retaliation.

31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

Step I Grievance dated August 17, 2005, respondent Zgut. Step I Grievance dated January 20, 2005, respondent Shane Johnson. Step II Grievance dated July 29, 2004, respondent DeLayne Tornowski. Step I Grievance dated July 15, 2004, respondent Shane Johnson. Step III, Grievance dated July 9, 2003, respondent Tony Decesaro. Step II Grievance dated June 30, 2003, respondent Tim O'Brien. Informal Grievance filed May 22, 2003, respondent Gary Watkins. Step III Grievance filed March 5, 2003, respondent Tony Decesaro. Step III Grievance filed February 3, 2003, respondent Tony Decesaro. Step II Grievance filed January 10, 2003, respondent Trevor Williams.

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41. 42. 43.

Step I Grievance filed January 9, 2003, 2003, respondent Anita Bloor. Informal Grievance filed December 20, 2002, respondent Kahler. Step I Grievance filed December 13, 2002, respondent DeLayne Tornowski.

44. 45. 46.

Step I Grievance dated November 13, 2002, respondent Shane Johnson. Step III Grievance dated November 12, 2002, respondent Edd Gillespie. Step II Grievance dated October 25, 2002, respondent DeLayne Tornowski.

47. 48. 49.

Step I Grievance dated October 11, 2002, respondent Shane Johnson. Chronological records for inmate James Ralph Dawson, DOC # 46709. Limon Correctional Facility Cell House Chronological Records for October, November and December of 2002.

50.

COPD disciplinary conviction record ("Query Disciplinarties" printout) for James Dawson concerning COPD convictions from July 2, 1985 to the present.

51.

Deposition Transcript of James Dawson in Case No. 01-CV-01191-ZLWMJW dated July 12, 2005.

52.

Defendants' Status Report In Compliance with the Court's Order of June 18, 2001 and attachments in Case No. 97-Z-1943, Dawson v. Reilly et al.

53.

Letter by James Dawson to Honorable Judge Zita Weinshenk filed on June 18, 2001 in Case No. 97-Z-1943, Dawson v. Reilly et al.

54. 55.

Mittimus(s) for Plaintiff's convictions Any Exhibit identified by Plaintiff.

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56. D.

Any Exhibit necessary for impeachment or rebuttal.

Copies of Exhibits and Objections Copies of the exhibits must be provided to opposing counsel or the parties no later than

ten days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than ______ days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES None. 10. SETTLEMENT a. Counsel for the parties met in person on __________________ before Magistrate

Judge ____________________to discuss in good faith settlement in the case. b. The participants in the settlement conference, included both counsel with party

representatives available by telephone. c. d. e. f. The parties were promptly informed of all settlement offers. Counsel for the parties do not intend to hold future settlement conferences. It appears from discussions by all counsel that there is little chance of settlement. There is no date set for a settlement conference or other alternative defense

resolution (ADR) method. g. Counsel for the parties have considered ADR in accordance with

D.C.Colo.L.Civ.R. 16.6.

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11. OFFER OF JUDGMENT Counsel for the parties acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF PRETRIAL ORDER Hereafter, this Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by the consent of the parties and approved by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS

1. 2. 3.

This case is set for jury trial. It is estimated that the trial will take 3 days. A trial date has not yet been set for this matter.

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DATED this ______ day of _____________ 2006.

BY THE COURT:

_______________________________ United States Magistrate Judge

APPROVED: James Ralph Dawson Jr., pro se Nicole S. Gellar, Esq.

*As Plaintiff is incarcerated, his signature could not be obtained prior to the preparation of the proposed Final Pre-Trial Order_________________________ James Ralph Dawson, Jr., pro se Limon Correctional Facility, Reg. 46709 49030 State Highway 71 Limon, CO 80826

/s/ Nicole S. Gellar Office of the Attorney General 1525 Sherman Street, 5th Floor Denver, CO 80203 (303) 866-5161 [email protected] Attorneys for Defendants

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CERTIFICATE OF SERVICE This is to certify that I have duly served the within Proposed Pre-Trial Order upon all parties herein by depositing copies of same in the United States mail, postage prepaid, at Denver, Colorado, this 23rd day of February, 2006, addressed as follows:

James Ralph Dawson Jr., #46709 Limon Correctional Facility 49030 State Highway 71 Limon, CO 80826

Cc: Cathie Holst Al Estep

/s/Jackie Martinez-Jepkes

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