Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01050-MSK-PAC

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Filed 10/04/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1050-MSK-PAC NICKY SMITH-BEY, Plaintiff, v. CAPT. SCOTT GIBSON, SGT. PAYNE, SGT. JOSEPH BARNHILL, LISA FITZGERALD, JESSICA MEKELBURG, MICHAEL YONGER, Defendants. DEFENDANTS' STATUS REPORT RESPONSE TO MINUTE ORDER [DOC 42] AND RESPONSE TO PLAINTIFF'S MOTION TO COMPEL [DOC 35] Come Now, Defendants Capt. Scott Gibson, Sgt. Payne, Sgt. Joseph Barnhill, Lisa Fitzgerald, Jessica Mekelburg, Michael Yonger, through their attorney, Edward T. Farry, Jr., and hereby responds to the magistrate judge's minute order of September 26, 2005 [Doc 42] and the plaintiff's motion to compel [Doc 35] as follows: Status Report Defendants have responded and served all discovery requested by plaintiff: 1. Plaintiff's first set of interrogatories were responded to and served on plaintiff, by

hand delivery, on February 9, 2005. 2. Defendants responded to plaintiff's request for production of documents on

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Case 1:04-cv-01050-MSK-PAC

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September 12, 2005. See Exhibit 1, which is the Sterling Correctional Facility Legal Mail Log, that evidences plaintiff's receipt of the defendants responses. 3. As noted by the defendants in a prior response [Doc 31], none of the documents

requested by plaintiff was in the possession of the individual defendants. But in an extra effort to cooperate with the pro se incarcerated inmate Smith-Bey, undersigned's staff forwarded the requests to the Legal Services office of the Department of Corrections and sought that office's assistance in answering the discovery requests, notwithstanding the fact that the defendants themselves could have (and in retrospect should have) simply answered the requests by declaring that they did not have possession of the documents and things. Concerning the documents and things requested, the Sterling Correctional Facility sent the documents and things to the office of Legal Services in Colorado Springs. However, for reasons unknown to the defendants, the documents were never received or accounted for by Legal Services; therefore, the documents and things had to be re-requested. These are the documents that plaintiff received on September 12, 2005. Concerning the cassette tape undersigned was advised that such tapes are contraband. This problem was overcome by the efforts of undersigned's staff by obtaining permission for plaintiff to check out the cassette tape from the prison library. Undersigned's office informed plaintiff of this/these fact(s) by correspondence of September 7, 2005. [Exhibit 2] 4. This status report, therefore, advises the court that the State Defendants have

complied in every way with their discovery oblilgations.. As for Sanctions Request 5. As the status report discloses, the motion to compel is without merit and the request

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Case 1:04-cv-01050-MSK-PAC

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WHEREFORE, given the State Defendants' status report, they request the court to deny the motion to compel request for sanctions. Respectfully submitted October 4, 2005. FARRY and RECTOR, L.L.P. /s/ Edward T. Farry Edward T. Farry, Jr. #8273 Attorney for Walter Woods 131 South Weber Street Colorado Springs, CO 80903 Phone Number (719) 578-2000 Facsimile Number (719) 578-1794 Original copy signed by Edward T. Farry is on file with Farry and Rector, L.L.P.

CERTIFICATE OF SERVICE I hereby certify that on this 4th day of October, 2005, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using CM/ECF system, which will send notification to the following, and served on each of the following at the indicated address by first class U.S. mail, postage prepaid: Nicky Smith-Bey DOC #98861 Sterling Correctional Facility P.O. Box 6000 Sterling CO 80751 /s/ Kelly R. Moss Original Copy signed by Kelly R. Moss is on file with Farry and Rector, L.L.P.

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