Free Proposed Scheduling Order - District Court of Colorado - Colorado

Case 1:03-cv-00557-WYD-KLM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-557-PSF-KLM RUSSELL M. BOLES, Plaintiff, v. GARY D. NEET, Defendant. SCHEDULING ORDER 1. DATE OF CONFERENCE AND APPEARANCES OF COUNSEL AND PRO SE PARTIES The scheduling conference was conducted on January 7, 2008 at 1:30 p.m. Present at the scheduling conference were the following counsel of record: Counsel for Plaintiff Russell M. Boles: Blain D. Myhre Jessica R. Allen Isaacson Rosenbaum P.C. 633 17th Street, Suite 2200 Denver, Colorado 80202 Telephone: (303) 292-5656 Counsel for Defendant Gary Neet: James X. Quinn, Esq. Assistant Attorney General Civil Litigation and Employment Section 1525 Sherman Street, Fifth Floor Denver, CO 80203 Telephone: (303) 866-4307

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2. STATEMENT OF JURISDICTION Jurisdiction is based upon 42 U.S.C. §1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1342 and the First Amendment to the United States Constitution. Jurisdiction of this Court is not denied. 3. STATEMENT OF CLAIMS AND DEFENSES a. Plaintiff(s):

Plaintiff Russell Boles is an observant Orthodox Jew and an inmate in the Colorado Department of Corrections ("CDOC") who was effectively denied medical treatment for a year and a half because Defendant improperly required that Boles remove his religious garments in order to receive the treatment he needed to restore his eyesight. At the time of the events in question, Boles was held at the Fremont Correctional Facility ("FCF"). Defendant Gary Neet was the Warden. During Boles' arrest in May of 1995, an Adams County Police officer injured Boles' left eye. The injury led to the development of a cataract that resulted in total blindness in Boles' left eye. CDOC arranged for Boles to be transported to a eye surgeon on March 5, 2001. As he was preparing to be transported, Boles was informed that he would not be allowed to wear his religious garments. The garments included Boles' yarmulke (head covering or skull cap) and tallit katan (an undergarment bearing fringes or "tzitzit"). Before March 5, 2001, Boles had been transported for unrelated medical treatment several times and each time was allowed to wear his yarmulke and tallit katan.

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Because a failure to wear his yarmulke and tallit katan would be in direct violation of his faith,1 and despite the serious consequences to his vision, Boles refused the transport and his eye surgery was canceled. Boles wrote to Warden Neet requesting permission to wear his religious garments during transport to the hospital. Warden Neet denied the request based on the prison's transport regulation which did not prohibit inmates from wearing yarmulkes or tallit katan. Plaintiff remained steadfast in refusing to remove his religious items before transport to surgery. As a result, his eye surgery was delayed until November of 2002, by which point the prison regulations had been amended specifically to allow Jewish inmates to wear yarmulkes and tallit katan during transport. Boles' claim at trial includes a deprivation of his right to free exercise of religion as guaranteed by the First and Fourteenth Amendments of the Constitution. Boles seeks compensatory damages for the mental anguish and emotional distress which resulted from Warden Neet's improper conduct. b. Defendant:

Plaintiff is a convicted felon who is serving a sentence in the custody of the CDOC. Plaintiff alleges that prior to his incarceration in CDOC, the police that arrested him "imposed an injury to plaintiff's left eye that caused a cataract to form which resulted in total blindness in that eye." Plaintiff further alleges that Adams County, apparently the police department that arrested him, would not provide surgery to fix the eye. Plaintiff admits that he received treatment for his eye and other medical conditions since he arrived at CDOC. Indeed, CDOC provided the The Bible, in the Book of Numbers, ch. 15, verse 37 states: "make for themselves 'tzitzit' fringes on the corners of their garments throughout the ages." The Kitzer Shulchan Arukh, a code of Jewish law, requires that a Jewish male cannot walk a distance of four cubits (between 12 and 16 feet) without wearing tzitzit or without having his head covered during daylight hours.
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surgery to restore sight in Plaintiff's left eye. However, Plaintiff maintains that when it came time on March 5, 2001 to transport Plaintiff for surgery to restore sight in his left eye, Plaintiff was advised that pursuant to CDOC Administrative Regulation 300-37-RD relating to the transport of inmates, he could not wear his religious garments when being transported. Plaintiff refused to leave the garments at the facility and his surgery had to be rescheduled. The policy in effect in March 2001 regarding religious items is found at AR 800-01, IV(F)(13), effective 1/15/01. This policy dictated that religious items could "be worn or used in the offenders cell, or while in corporate gatherings, and shall not be worn or used in general population, or while transporting to, or from corporate gathering areas." An attachment to this regulation stated that Jewish offenders could wear Tallit Katan at all times. This attachment only modified AR 800-01 with respect to religious garments while inmates were inside of a CDOC facility, it did not change the transport regulations promulgated at AR 300-37 RD. The policy in effect in March 2001 concerning transportation of inmates was contained in AR 300-37 RD, Vehicle Transportation of Offenders, effective 9/15/00. Pursuant to the CDOC policy in effect in March 2001, offenders were to be restrained and dressed in orange jumpsuits and transport shoes. No other items were to be allowed during transport out of FCF. Construing these regulations together, it was apparent that inmates were not allowed to wear religious items while being transported out of the prison facility. On April 30, 2001, Warden Neet responded to a letter from Boles relating to the transport issue. He informed Boles that the Fremont Correctional Facility ("FCF") followed CDOC policy concerning the transport of inmates as detailed above. He also informed Boles that if CDOC policy changed then FCF policy would also change to follow CDOC's policy.

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In light the March 5, 2001 incident involving Boles, Neet inquired of CDOC executive staff and others as to whether an accommodation of Jewish inmates like Boles was appropriate. This inquiry sparked meetings of executive staff and related personnel which resulted in amending AR 800-01 on November 15, 2001 to allow Jewish inmates to wear their Yarmulke and Tallit Katan during transport. After this policy change, inmate Boles was allowed to wear these items while being transported out of FCF for surgery. Neet asserts the following defenses: (1) Plaintiff's Complaint fails, in whole or in part, to state a claim upon which relief may be granted; (2) Plaintiff has failed to mitigate his damages, if any; (3) Plaintiff has failed to fulfill all conditions precedent to bringing this action; (4) Plaintiff's claimed damages, if any, were caused by his own act or by third parties over whom Defendant had no control; (5) Plaintiff's claim is barred by the applicable statute of limitations; (6) Plaintiff's claim against Defendant may be barred in whole or in part by the doctrine of Sovereign Immunity pursuant to the Eleventh Amendment, and/or absolute, limited or qualified immunity; (7) Defendant affirmatively asserts that Plaintiff's constitutional rights have not been violated and that Plaintiff has been afforded all of the rights, privileges and immunities granted by the United States Constitution; (8) Defendant's actions, applicable CDOC regulations and state laws are supported by legitimate penological interests, goals and objectives; (9) Defendant's actions, applicable CDOC regulations and state laws were/are supported by compelling and/or legitimate interests, and were/are the least restrictive means of effectuating these interests; (10) Plaintiff's claims are barred in whole or in part by the requirements of the Prison Litigation Reform Act, including the exhaustion of administrative remedies and physical injury requirement; (11) Plaintiff's claims fail due to lack of personal participation; (12) Plaintiff's claims are barred because he suffered no injury or loss, or at most the injury or loss is

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de minimis; (13) Plaintiff's damages, if any, are the sole and proximate result of a pre-existing injury. 4. UNDISPUTED FACTS a. Plaintiff Russell M. Boles is serving a sentence in the custody of the Colorado

Department of Corrections and is an observant Orthodox Jew. b. Defendant is the former warden of the Fremont Correctional Facility, the facility

that housed Boles at the relevant time. c. Boles' eye surgery was originally scheduled to take place in March of 2001.

Boles was advised that he would not be transported to his surgery unless he removed his religious items. d. The policy in effect in March 2001 regarding religious items was AR 800-01,

IV(F)(13), effective 1/15/01. This policy included the following language: (1) Religious items could "be worn or used in the offenders cell, or while in

corporate gatherings, and shall not be worn or used in general population, or while transporting to, or from corporate gathering areas;" (2) "it is the policy of the Department of Corrections (DOC) to allow ...

opportunities to practice one's faith;" and (3) "the DOC shall ... ensure that offenders have the opportunity to

participate in practices of their religious faith" that is limited only by documentation of a security or disruptive threat posed by the activity. e. The policy in effect in March 2001 concerning transportation of inmates was

contained in AR 300-37 RD, Vehicle Transportation of Offenders, effective 9/15/00. Pursuant to

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the CDOC policy in effect in March 2001, offenders were to be restrained and dressed in orange jumpsuits and transport shoes. f. In April of 2001, Boles wrote to Warden Neet requesting permission to wear his

religious garments during transport to the hospital. On April 30, 2001, Warden Need denied the request in writing. h. On November 15, 2001, AR 800-01 was amended to allow Jewish inmates to

wear their Yarmulke and Tallit Katan during transport. i. Boles had eye surgery in late 2002 and was allowed to wear his yarmulke and

tallit katan during transport. 5. COMPUTATION OF DAMAGES a. Plaintiff:

Bowles claims compensatory damages for the mental anguish and emotional distress he has suffered as a result of having treatment to his left eye postponed for over one year. The amount of the damages will be determined by the jury. b. Defendants: Not applicable.

6. REPORT OF PRECONFERENCE DISCOVERY AND MEETING UNDER FED. R. CIV. P. 26(f) a. b. Date of rule 26(f) meeting: The parties met by telephone on January 2, 2008. Names of each participant and party he/she represented: Jessica Allen Isaacson Rosenbaum P.C. Counsel for Boles
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James X. Quinn, Esq. Assistant Attorney General Counsel for Neet c. Proposed changes, if any, in timing or requirement of disclosures under Fed. R.

Civ. P. 26(a)(1). d. e. f. The parties will make required rule 26(a)(1) disclosures on January 28, 2008. The parties have not agreed to conduct any informal discovery at this time. The parties do not anticipate that their claims or defenses will involve extensive

electronically stored information, or that a substantial amount of disclosure or discovery will involve information or records maintained in electronic form. 7. CONSENT All parties have not consented to the exercise of jurisdiction of a magistrate judge. 8. CASE PLAN AND SCHEDULE a. b. c. Deadline for Joinder of Parties and Amendment of Pleadings: January 22, 2008. Discovery Cut-off: June 16, 2008.

Dispositive Motion Deadline: July 16, 2008.

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d.

Expert Witness Disclosure (1) Plaintiff anticipates possibly calling experts in the areas of

Judaism, medicine and optometry/ophthalmology. Defendants anticipate calling medical and prison administration and security experts. (2) of court. (3) The parties shall designate all experts and provide opposing Each side shall be limited to three expert witnesses, without leave

counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before May 1, 2008. (4) The parties shall designate all rebuttal experts and provide

opposing counsel and any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before May 31, 2008. (5) Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no

exception to the requirements of the rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. e. Deposition Schedule: (1) Name of Deponent Warden Neet Other deponents to be determined as discovery progresses Plaintiff: Date of Deposition To be determined Time of Deposition 9:00 a.m. Expected Length of Deposition 5 hours

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(2) Name of Deponent Plaintiff

Defendant: Date of Deposition To be determined Time of Deposition 9:00 a.m. Expected Length of Deposition 5 hours

f.

Interrogatory Schedule: All Interrogatories shall be served on or before May 14, 2008, unless the discovery cut-off is extended by the Court.

g.

Schedule for Request for Production of Documents: All Requests for Production of Documents shall be served on or before May 14, 2008, unless the discovery cut-off is extended by the Court.

h.

Discovery Limitations: (1) The parties agree to limit the number of depositions to five (5) per

side. Should the need arise, a party may seek leave of court to exceed presumptive limits. (2) The parties agree that no deposition shall exceed seven (7) hours

without leave of the Court or agreement of the parties. (3) The parties do not propose any changes to the presumptive limits

of interrogatories or depositions provided in the federal rules. Should the need arise, a party may seek leave of court to exceed presumptive limits. (4) The parties agree to limit Requests for Production of Documents to

thirty (30) per side, including all discrete subparts, and to limit requests for admission to thirty (30) per side. Should the need arise, a party may seek leave of court to exceed presumptive limits. (5) Other Planning or Discovery Orders: None proposed at this time.

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9. SETTLEMENT Counsel for Plaintiff made their appearance in the case less than 30 days ago. Because of this short tenure in the case, the intervening Christmas and New Year holidays, and the logistical challenge of communications between an inmate and his attorneys, the parties have not been able to discuss the possibilities for a prompt settlement or resolution of the case by alternate dispute resolution. The Court hereby orders the parties to hold settlement discussions on or before February 15, 2008. The parties will report the result of any such meeting, and any similar future meeting, to the magistrate judge within ten days of the meeting. 10. OTHER SCHEDULING ISSUES a. Discovery or scheduling issues, if any, on which counsel, after a good-

faith effort, were unable to reach an agreement: None b. c. This is a jury trial. The Parties anticipate a two (2) day trial. A settlement conference will be held on________________________ at

______ o'clock __.m. It is hereby ordered that all settlement conferences that take place before the magistrate judge shall be confidential. ( ) ( ) Pro se parties and attorneys only need be present. Pro se parties, attorneys, and client representatives with authority to settle must be present. (NOTE: This requirement is not fulfilled by the presence of counsel. If an insurance company is involved, an adjustor authorized to enter into settlement must also be present.)

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( )

Each party shall submit a Confidential Settlement Statement to the magistrate judge on or before _______________ outlining the facts and issues, as well as the strengths and weaknesses of their case.

d.

Status conferences will be held in this case at the following dates

and times: ___________________________________________ e. A final pretrial conference will be held in this case on at_____ o'clock __.m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than five days before the final pretrial conference. 12. OTHER MATTERS In addition to filing an appropriate notice with the clerk's office, counsel must file a copy of any notice of withdrawal, notice of substitution of counsel, or notice of change of counsel's address or telephone number with the clerk of the magistrate judge assigned to this case. Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures established by the judicial officer presiding over the trial of this case. In addition to filing an appropriate notice with the clerk's office, a pro se party must file a copy of a notice of change of his or her address or telephone number with the clerk of the magistrate judge assigned to this case. With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1A. The parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served upon the moving attorney's client, all attorneys of record, and all pro se parties.
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13. AMENDMENTS TO SCHEDULING ORDER The scheduling order may be altered or amended only upon a showing of good cause. DATED this ____ day of January, 2008.

BY THE COURT: _______________________________ United States Magistrate Judge APPROVED:

Blain D. Myhre, Esq. Jessica Runyan Allen, Esq. Isaacson Rosenbaum P.C. 633 17th Street, Suite 2200 Denver, CO 80202 Telephone: (303)292-5656

James X. Quinn, Esq. Assistant Attorney General Civil Litigation and Employment Section 1525 Sherman Street, Fifth Floor Denver, CO 80203 Telephone: (303) 866-4307

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