Free Response to Motion - District Court of Colorado - Colorado

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

Document 40

Filed 09/16/2005

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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' RESPONSE TO PLAINTIFF'S [RENEWED] MOTION TO COMPEL DISCOVERY WITH REQUEST FOR SANCTIONS

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 respond and object to plaintiff's [renewed] motion to compel as follows: Defendants have sent all requested discovery to the Plaintiff: 1. All defendants responded to Plaintiff's First Set of Interrogatories, hand delivered

on February 9, 2005. 2. All defendants have responded to Plaintiff's Request for Production of

Documents, delivered on September 7, 2005. 3. As stated in a prior response [Doc 31], none of the documents requested by

plaintiff were in the possession of the individual defendants. However, in cooperative effort to

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

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assist pro se incarcerated inmate Smith-Bey, undersigned's staff forwarded the requests to the Legal Services office of the Department of Corrections. The original FedExed documents have never been located, but following receipt of a duplicate copy of those documents and one cassette, the undersigned was also informed that plaintiff's request for cassette tape recordings posed additional obstacles, as cassettes are impermissible contraband for inmates. All documents and recordings have since been provided to plaintiff. As for Sanctions Request 4. Plaintiff filed his Motion to Compel Disclosure or Discovery with Request for

Appropriate Sanctions ("Motion to Compel") [Doc 35], and in his motion, plaintiff states that he "has in good faith conferred with party or persons failing to make discovery[.]" The plaintiff wrote an undated letter to the undersigned that stated "this is my attempt to confer with you," but did not provide the opportunity for a response before filing his Motion to Compel. This violates the specific provision of Fed. R. Civ. P. 37 (a)(2), which requires conferral prior to seeking the aid of the court in purported discovery disputes. In fact, had plaintiff permitted response prior to filing his motion, he would have known that the cause of the delay had been resolved. 5. The defendants, through counsel, were actively pursuing the documents prior to

and contemporaneous with the ex-parte letter plaintiff sent to the magistrate judge [Doc 23] and his renewed Motion to Compel. The plaintiff currently possesses, or will soon receive via firstclass mail by the United States Postal Service, all discovery requested from the defendants that the Department of Corrections possesses, and that are otherwise discoverable. 6. Defendants have not wilfully refused cooperation, nor failed to comply with any

court order. Plaintiff is not prejudiced by the delay in receipt, as no further deadlines or hearings are currently scheduled. 2

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

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Filed 09/16/2005

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Given the above, the defendants request that the plaintiff's motion to compel with request for sanctions be denied. WHEREFORE, State Defendants request the court to deny the motion to compel, and deny plaintiff's request for sanctions. Respectfully submitted September 16, 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 16th day of September, 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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