Free Response to Motion - District Court of Colorado - Colorado

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

Document 31

Filed 07/29/2005

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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 MOTION TO COMPEL

Defendants Capt. Scott Gibson, Sgt. Payne, Sgt. Joseph Barnhill, Lisa Fitzgerald, Jessica Mekelburg, Michael Yonger, through their attorney Edward T. Farry, Jr., hereby respond to plaintiff=s motion to compel as follows. Plaintiff wrote a letter to magistrate judge Patricia A. Coan on June 20, 2005 [Doc 23] that the magistrate judge construed by minute order of July 11, 2005 [Doc 28] as a motion to compel. The magistrate judge also required plaintiff to file a document specifically iterating the documents he sought from defendants. [Doc 27] The defendants first note that plaintiff did not serve a copy of his letter on the defendants as is required by Rule 5. Plaintiff Smith-Bey is a serial Rule 5 offender although of late, and given the admonition of the magistrate judge in the minute order of June 20, 2005, he is now

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

Document 31

Filed 07/29/2005

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serving defendants with documents he files with the court. Furthermore plaintiff Smith-Bey did not otherwise communicate or confer with defendants concerning this apparent discovery dispute prior to writing to the court. 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. Therefore, the first that these defendants knew that there was a discovery dispute is upon receipt of the minute order from the court. Status of Discovery Plaintiff served interrogatories and requests for production on

the individual defendants. All interrogatories have been answered. Concerning the requests for production, none of the documents requested is in the possession of the individual defendants. However, rather than interpose that fact as a legitimate answer or objection to the requests to produce, undersigned=s staff forwarded the requests to the Legal Services office of the Department of Corrections with the understanding that all documents that the department has, and that are otherwise discoverable, will be produced notwithstanding that the requests to produce were directed to individuals not in possession of the materials. The court is informed that the requests to produce were faxed on January 24, 2005 and on June 27, 2005 to Legal Services. Undersigned=s paralegal spoke with Legal Services concerning the documents during the week of July 4, 2005. As this chronology shows, the defendants, through counsel, were actively seeking the documents prior to and contemporaneous with the ex-parte letter plaintiff sent to the magistrate judge. Defendants are advised that we will have in hand any documents that are available by August 19, 2005 and will be forwarded to plaintiff at that time. Given the above the defendants request that the motion to compel be denied. 2

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

Document 31

Filed 07/29/2005

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WHEREFORE, State Defendants request the court to deny the motion to compel. Respectfully submitted July 29, 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 29th day of July, 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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