United States District Court, D. Colorado
TERRANCE D. WILSON, Plaintiff,
SHERWYN PHILLIP, STEVEN FRANK, and JAMES FOX, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
DEPOSE DEFENDANTS FRANK AND FOX
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Terrance Wilson's Motion
for Leave to Depose Defendants Steven Frank and James Fox
(the “Motion”). (Doc. # 107.) For the reasons
detailed below, the Court grants Plaintiff's Motion.
BACKGROUND AND PROCEDURAL HISTORY
Court detailed the factual background of this case in its
Order Granting Defendants' Motion for Summary Judgment
(Doc. # 93), as did the Tenth Circuit Court of Appeals when
it reviewed that Order in Wilson v. Falk, 877 F.3d
1204 (10th Cir. 2017). This Court's previous Order is
incorporated by reference, and the factual background
explained therein need not be repeated here. The Court
recounts only the facts necessary to address Plaintiff's
Court granted Defendants' Motion for Summary Judgment
(Doc. # 80) and thereby dismissed Plaintiff's sole claim,
asserted under 42 U.S.C. § 1982 for Defendants'
alleged violations of Plaintiff's Eighth Amendment
rights, on June 29, 2016. (Doc. # 93.) With regard to
Defendants Frank and Fox, the Court concluded that they were
entitled to qualified immunity and summary judgment because
Plaintiff had failed to identify evidence in the record
sufficient to support a finding that Defendants Frank and Fox
knew of, but ignored, an excessive risk to Plaintiff's
Regardless of whether Plaintiff did in fact have a
conversation with Defendants Frank and Fox as Mr. Drake
alleges, the Court finds that, even if the conversation took
place as alleged, this fact alone is insufficient to overcome
Defendants' summary judgment motion. Plaintiff's
alleged vague and non-specific reference to “some guys
. . . making threats towards his life” is insufficient
to support a finding that Defendants Frank and Fox were aware
of facts from which the inference could be drawn that a
substantial risk of serious harm existed and that Defendants
Frank and Fox did, in fact, draw that conclusion.
(Id. at 11.) The Court entered final judgment in
favor of all Defendants. (Doc. # 94.) Plaintiff timely
appealed the Court's Order and Final Judgment to the
Tenth Circuit. (Doc. # 95.)
Tenth Circuit affirmed in part and reversed and remanded in
part the Court's Order. Wilson, 877 F.3d at
1213. Relevant here is the Tenth Circuit's holding as to
Defendants Frank and Fox. See id. at 1210-12. The
Tenth Circuit reviewed Plaintiff's allegations about his
interactions with Defendants Frank and Fox and partly
corroborating evidence. Id. It disagreed with this
Court's statement that Plaintiff's
“vague” allegations are
“insufficient” to survive summary judgment.
Id. at 1211. Rather, the Tenth Circuit held,
“Viewing that evidence in the light most favorable to
[Plaintiff], a reasonable jury could find that [Defendants
Frank and Fox] were subjectively aware of a substantial risk
of serious harm to [Plaintiff].” Id. The Tenth
Circuit thereby reversed this Court's grant of summary
judgment in favor of Defendants Frank and Fox. Id.
Tenth Circuit remanded Defendants' Motion for Summary
Judgment as to Defendants Frank and Fox for further
On appeal, the Colorado Attorney General [Defendants'
counsel] hints at an alternative basis for affirming, arguing
that [Defendants Fox and Frank] took proactive steps to
separate [Plaintiff] and [another inmate], and thus they were
not deliberately indifferent to his plight. Perhaps it is
possible [Defendants Fox and Frank] acted reasonably, but the
district court reached no conclusion on that score, and we
decline to affirm on an alternative ground neither passed on
below nor cultivated on appeal. Instead, we express no
opinion on this issue and leave it for the district
court's consideration on remand.
Id. at 1211-12 (internal citations omitted).
light of the Tenth Circuit's remand on this question,
this Court ordered the parties to submit supplemental
briefing on whether Defendants Frank and Fox acted reasonably
by taking proactive steps to separate Plaintiff from the
other inmate and were entitled to summary judgment on that
ground. (Doc. # 103.) Defendants Frank and Fox filed their
supplemental brief on February 14, 2018. (Doc. # 104.)
Plaintiff submitted his response brief on March 1, 2018 (Doc.
# 105), to which Defendants Frank and Fox replied on March
15, 2018 (Doc. # 106).
filed the instant Motion for Leave to Depose Defendants Frank
and Fox on March 28, 2018. (Doc. # 107.) Plaintiff argues
that Defendants Frank and Fox failed to provide any
additional information on steps they may have taken to
separate Plaintiff from the other inmate in their
supplemental briefs. (Id. at 3.) Plaintiff contends
that he needs this information to defend against Defendants
Frank and Fox's qualified immunity affirmative defense.
(Id. at 4.) ...