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Wilson v. Phillip

United States District Court, D. Colorado

May 16, 2018

TERRANCE D. WILSON, Plaintiff,
v.
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.

         Currently 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The 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 Motion.

         This 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 safety:

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.)

         The 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. at

         The Tenth Circuit remanded Defendants' Motion for Summary Judgment as to Defendants Frank and Fox for further consideration:

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).

         In 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).

         Plaintiff 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.) ...


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