United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
CELIA SCHWARTZ, Legal Assistant II, Colorado Department of Corrections, Buena Vista Correctional Facility, LIEUTENANT S. MORGAN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, SERGEANT G. WOOD, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, MANAGER JEFF HANSEN, BVCF/North Unit Colorado Department of Corrections, Buena Vista Correctional Facility, DAVID COTTEN, Administrative Service Manager, Colorado Department of Corrections, Buena Vista Correctional Facility, WILLIAM BRUNELL, Associate Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, and JOHN DAVIS, Warden, Colorado Department of Corrections, Buena Vista Correctional Facility, Defendants.
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Delmart E.J.M.
Vreeland, II's objections to two orders entered by
Magistrate Judge Kathleen M. Tafoya on May 15, 2017. Docket
Nos. 145, 146. The magistrate judge granted the Motion to
Quash Supboena [sic] to Testify at a Deposition in a Civil
Action [Docket No. 123] filed by Dea Aragon and the Motion to
Quash Subpoena to Produce Docum ents, Information, or Objects
or to Permit Inspection of Premises in a Civion [sic] Action
[Docket No. 132] filed by the District Attorney's Office
for the 18th Judicial District. On June 8, 2017, plaintiff
filed “Objections to Magistrate Orders Docket Numbers
145 and 146.” Docket No. 154. In light of
plaintiff's pro se status, the Court construes his
filings liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 & n.3 (10th Cir. 1991).
is an inmate in the Colorado Department of Corrections
(“CDOC”). Docket No. 35 at 7-8. He was convicted
after a trial in Douglas County, Colorado in 2006.
Id. Plaintiff's amended complaint contains
claims pursuant to 42 U.S.C. § 1983, including two
claims for retaliation against defendant Celia Schwartz, a
legal assistant at CDOC's Buena Vista Correctional
Facility. Docket No. 35 at 11-18. In his first claim,
plaintiff alleges that Ms. Schwartz opened and read a package
sent to plaintiff by his attorney that contained legal mail
and sealed court transcripts. Id. at 11. She then
allegedly lied about the contents of the package, which
“caused it to be rejected, ” denying plaintiff
access to it. Id. at 12. The Court dismissed this
claim as barred by the statute of limitations. Docket No. 68
at 6, 11. Plaintiff's third claim alleges that Ms.
Schwartz told him she would not allow him to review various
tapes and videos related to plaintiff's legal claims in
the prison's law library and that she would deny him
access to the law library. Docket No. 35 at 15. He claims
that she suggested that he have his attorney bring the
materials to the visiting room or have the attorney review
them, but plaintiff states that doing so is too expensive.
Id. at 15, 17.
served two subpoenas on third parties that he argues are
related to his retaliation claims. First, plaintiff
subpoenaed Dea Aragon, one of the Douglas County
Sheriff's deputies involved in the investigation leading
to plaintiff's conviction, to testify and produce all
discovery materials relating to plaintiff's criminal case
and a copy of all recordings of his telephone calls from
prison. Docket No. 123-1 at 1; Docket No. 145 at 5. On Ms.
Aragon's motion, the magistrate judge quashed this
subpoena, finding that the testimony and discovery materials
sought are irrelevant to plaintiff's claims because the
materials are not what plaintiff claims his attorney mailed
to him and, regardless, the content of material that
plaintiff was denied access to is irrelevant to whether such
denial was retaliatory. Docket No. 145 at 6.
plaintiff subpoenaed the District Attorney's Office for
the 18th Judicial District to produce the same materials he
requested from Ms. Aragon, as well as discovery materials
from a 2013 criminal proceeding against Robert Michael
French, who was listed as a witness against plaintiff at his
criminal trial. Docket No. 133 at 3; Docket No. 146 at 6. On
the motion of the District Attorney's Office, the
magistrate judge quashed the subpoena, finding that the
discovery materials from plaintiff's criminal case lack
relevance to his claims in this case. Docket No. 146 at 7.
The magistrate judge also found that discovery materials
relating to Mr. French's criminal proceeding lack any
relevance to plaintiff's claims and stated that
“plaintiff clearly is seeking documents in this case in
order to once again try to attack his underlying
conviction.” Docket No. 146 at 8.
magistrate judge issues an order on nondispositive matters,
“[a] party may serve and file objections to the order
within 14 days after being served with a copy.”
Fed.R.Civ.P. 72(a). “The district judge in the case
must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
law.” Id. “[A] party's objections .
. . must be both timely and specific to preserve an issue for
de novo review by the district court.” United
States v. One Parcel of Real Property Known As 2121 East 30th
St., 73 F.3d 1057, 1060 (10th Cir. 1996). To be
sufficiently specific, an objection must “enable the
district judge to focus attention on those issues-factual and
legal-that are at the heart of the parties'
dispute.” See Id. at 1059 (quoting Thomas
v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a
proper objection, the Court may review a magistrate
judge's recommendation under any standard it deems
appropriate. See Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991); see also Thomas, 474 U.S. at
150 (“It does not appear that Congress intended to
require district court review of a magistrate's factual
or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”).
objects to the magistrate judge's orders, claiming that
he has a right to the information pursuant to Colo. R. Crim.
P. 16 and the Federal Rules of Civil Procedure. Docket No.
154 at 4. Plaintiff argues that the “denial of the
depositions and production of documents dooms this case as
Plaintiff cannot prove the materials he claims the defendants
denied him access to exist and are relevant and caused
damages.” Id. Plaintiff's objections are
unpersuasive. The Colorado Supreme Court has held that Colo.
R. Crim. P. 16 does not apply to post-trial discovery.
Roybal v. People, 493 P.2d 9, 14 (Colo. 1972)
(“This motion was purportedly made pursuant to Colo. R.
Crim. P. 16(a) and (b). We note the rule relied upon relates
only to pretrial discovery and not to post-trial
discovery.”). Hence, because plaintiff's criminal
trial has concluded, Colo. R. Crim. P. 16 does not provide
plaintiff with any right to the materials that plaintiff
seeks to subpoena.
the Court finds no error in the magistrate judge's
conclusion that a subpoena may be quashed under the Federal
Rules of Civil Procedure if the material sought is
irrelevant. Plaintiff does not claim that the materials he
now seeks were in the package sent to him by his attorney.
See Docket No. 154 at 4. In fact, plaintiff provides
no reason to believe that the discovery materials are
relevant to his retaliation claims. A court may quash a third
party subpoena if the materials sought are irrelevant.
See Barton v. Tomecek, 2012 WL 3730066, at *6 (N.D.
Okla. Aug. 28, 2012) (quashing third party subpoena due to a
failure to establish relevance); Int'l Bhd. of
Teamsters, Airline Div. v. Frontier Airlines, Inc., No.
11-cv-02007-MSK-KLM, 2012 WL 1801979, at *7 (D. Colo. May 16,
2012) (“Rule 26 governs the scope of discovery, in the
context of a Rule 45 subpoena or otherwise.” (citing 9A
Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, &
Richard L. Marcus, Fed. Prac. & Proc. Civ.
§ 2452 (3d ed. 2008))). The Court will therefore
overrule plaintiff's objections.
Court has reviewed portions of the magistrate judge's
orders that plaintiff does not specifically object to and has
determined that there is “no clear error on the face of
the record.” Fed.R.Civ.P. 72(b), Advisory Committee
foregoing reasons, it is
that the objections contained in plaintiff's
“Objections to Magistrate Orders Docket Numbers 145 and
146” [Docket No. 154] are OVERRULED.
 This standard of review is something
less than a “clearly erroneous or contrary to
law” standard of review, Fed.R.Civ.P. 72(a), which in
turn is less than a de ...