United States District Court, D. Colorado
ORDER
SCOTT
T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.
This
matter is before the Court on the following Motions filed by
Plaintiff: (1) Motion Regarding Appendix Containing 6/24/2019
Discussed Attachment Document(s) and Courts Guaranteeing
Return of Original Documents (the “Motion to Return
Originals”) [#50]; (2) Motion for Plaintiff's
Receipt of Legal Supplies Via CDOC-DWCF Legal Access Program
(the “Motion for Legal Supplies”)
[#51];[1] (3) Motion to Accept Plaintiff's
Response to Defendant['s] 6/27/2019 Motions as Timely
(the “Motion for Extension”) [#52]; (4) Motion
for Court Order to CDOC, CDOC-DWCF to Execute Non-CDOC 2nd
Medical Assessment/Opinion (the “Motion for Medical
Opinion”) [#55]; and (5) Motion for Receipt of Legal
Supplies by CDOC-DWCF Legal Access Program (the “Second
Motion for Legal Supplies”) [#56].[2] The parties have
consented to proceed before the undersigned United States
Magistrate Judge for all proceedings, including entry of a
final judgment. [#26, 48, 49] The Court has carefully
considered the Motions and related briefing, the entire case
file, the applicable case law, and has determined that
neither further briefing nor oral argument would materially
assist the Court in resolving the Motions. For the following
reasons, the Court GRANTS the Motion to
Return Originals, DENIES AS MOOT the Motion
for Extension, and DENIES the Motion for
Legal Supplies, the Second Motion for Legal Supplies, and the
Motion for Medical Opinion.
I.
The Motion to Return Originals and Motion for
Extension
On June
27, 2019, Defendant filed a Motion to Dismiss Plaintiff's
excessive force claim (the “Motion to Dismiss”)
[#46] and a Motion for Stay requesting a stay of the action
pending resolution of the Motion to Dismiss (the
“Motion to Stay”) [#47]. On July 17, 2019,
Plaintiff filed her Response to Defendants' Motions (the
“Response”) [#53], along with an Appendix of
exhibits in support of her Response (the
“Appendix”) [#53-1].
A.
Motion to Return Originals
Through
the Motion to Return Originals, Plaintiff requests that the
Court return the original documents filed as the Appendix, so
that she may retain them for her files and have access to
them for future use in this litigation, including trial.
[#50] Plaintiff contends that she was unable to obtain copies
of the documents through the Legal Access Program at DWCF.
[Id.] In support Plaintiff attaches a blank
“Legal Access Program Photocopy Request Form” and
underlines certain restrictions for photocopying listed on
the form. [Id. at 4] Notably, Plaintiff does not
include a form reflecting an actual request to have the
Appendix copied that was denied by the Legal Access
Program.[3] Nor is it clear to the Court that a
request to have the Appendix photocopied would have been
denied by the Legal Access Program based upon the
restrictions identified by Plaintiff. One of the underlined
restrictions appears to make a specific exception to the
general restrictions for documents being utilized “as
exhibits attached to an original pleading being filed with
the court, ” which would appear to cover the Appendix.
[Id.]
Nonetheless,
because the Court understands that Plaintiff has submitted
original documents as part of the Appendix that she likely
needs for her records and potentially for the future
litigation of this case, the Court will
GRANT the Motion to Return Originals. The
Clerk of Court is directed to mail to Plaintiff the original
documents submitted as the Appendix [#53-1].
Plaintiff
is advised, however, that in the future, she must submit a
request to the Legal Access Program to have documents being
submitted to the Court photocopied, and any future request
for the return of original documents must be accompanied by a
denied request for photocopying from the Legal Access
Program.
B.
Motion for Extension
Through
the Motion for Extension, Plaintiff requests that the Court
accept as timely the Response filed on July 17, 2019.
Pursuant to D.C.COLO.LCivR 7.1, Plaintiff's response to
Defendant's Motion to Dismiss was due 21 days after it
was filed-i.e., by July 19, 2019. However, because
both motions were served by U.S. Mail [#46 at 17; #47 at 5],
pursuant to Fed.R.Civ.P. 6(d), “3 days are
added.” The deadline for Plaintiff to file a response
to the Motion to Dismiss thus was July 22, 2019.
Plaintiff's Response thus was timely filed and
Plaintiff's Motion for Extension is DENIED AS
MOOT.
II.
The Motion for Legal Supplies and Second Motion for Legal
Supplies
In both
the Motion for Legal Supplies and the Second Motion for Legal
Supplies, Plaintiff requests that the Court issue an order to
compel the Legal Access Program at DWCF-through the Legal
Access Program Supervisor Hallie L. Beard and Plaintiff's
Case Manager Patricia Duran-to provide Plaintiff will legal
supplies and services. [#51 at 1; #56 at 1] Although none is
a party to this litigation, the Court understands the motions
to request the Court to issue an order enjoining them to
provide the requested legal supplies.
The
issuance of a temporary restraining order (“TRO”)
is subject to the Court's discretion. See Winnebago
Tribe of Neb. v. Stovall, 341 F.3d 1202, 1205 (10th Cir.
2003). Pursuant to Fed.R.Civ.P. 65(b)(1) a TRO may be issued
without notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and (B) the movant's attorney
certifies in writing any efforts ...