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Wright v. Gess

United States District Court, D. Colorado

July 22, 2019

VICTORIA DAWN WRIGHT, Plaintiff,
v.
ROBERT J. GESS, Defendant.

          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 ...

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