Campbell v. Milyard et al

Filing 195

ORDER re: 145 MOTION for Summary Judgment filed by Kathern Rittinhouse, Johnson, Floyd Pohlman, Paula Frantz, Gagen Singh, IT IS HEREBY ORDERED that Plaintiff shall respond to the Motion for Summary Judgment 145 on or before July 18, 2011. No extensions of time shall be permitted. by Magistrate Judge Kristen L. Mix on 6/17/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-01041-CMA-KLM
EARL WILLIAM CAMPBELL, JR.,
Plaintiff,
v.
DR. GAGEN SINGH, M.D.,
DR. PAULA FRANTZ, M.D.,
KATHERN RITTENHOUSE, P.A.C., and
SERGEANT JOHNSON, LU-3,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on pro se Plaintiff’s Notice and Affidavit [Docket No.
181; Filed May 20, 2011] (the “Notice”). As the Court previously noted, despite the fact that
the Notice seeks judicial relief, it was not filed as a motion. While the Court could have
refused to consider the Notice on the basis that it was not a properly filed motion, the Court
directed Defendants to respond [Docket Nos. 186 & 189]. Defendants have now done so
[Docket No. 194]. On the basis of Defendants’ Response, the Court finds that no further
action need be taken in relation to the Notice. My decision is explained below.
Pursuant to the Notice, Plaintiff contends that Defendants are conspiring among
themselves and among unidentified Limon Correctional Facility officials to frustrate
Plaintiff’s ability to prosecute his case.1 Specifically, in a sworn affidavit, Plaintiff contends
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Plaintiff’s lawsuit arises from the medical care he received while incarcerated at
Sterling Correctional Facility. Plaintiff has since been transferred to Limon Correctional Facility
and there is no evidence that Defendants have any connection with Plaintiff’s current facility.

that he is being denied meaningful access to the law library, that the law library is
insufficient, that his work assignment does not provide sufficient time to litigate his case,
that he was targeted for a shakedown in retaliation for prosecuting this case, and that his
legal documents were confiscated during the shakedown. Notice [#181] at 1-4. Plaintiff
contends that he is unable to meet several crucial case deadlines on the basis of these
alleged actions and circumstances, including that he was unable to file a motion to compel
within the deadline set by the Court.
At the Court’s prompting, defense counsel, who is an officer of the Court,
investigated Plaintiff’s allegations and found them to be unsubstantiated and without merit.
See Response [#194] at

Moreover, attached to Defendants’ Response are several

affidavits refuting Plaintiff’s contentions that he is being targeted or retaliated against due
to this litigation. For example, although Plaintiff contends that his work schedule does not
allow him time to prosecute his case, Defendants’ affiants aver that Plaintiff does not work
on Tuesdays and Wednesdays and that the law library is open on both of those days. See
Lind Supplemental Affidavit [#194-1] at 4; Rusher Affidavit [#194-1] at 1. In addition, there
is no evidence to support Plaintiff’s allegation that any of his legal documents were
removed during the shakedown. See Sokol Affidavit [#194-1] at 6-7.
Despite the fact that Defendants’ Response is in stark contrast to Plaintiff’s Notice,
a review of the docket supports Defendants’ version of events. First, to the extent that
Plaintiff contends that he could not timely file his motion to compel because of the
shakedown, the shakedown occurred on May 15, 2011. Plaintiff’s deadline to file the
motion to compel was not until May 26, 2011 [Docket No. 169].

Even if Plaintiff’s

documents were seized during the shakedown (which the Court has reason to doubt),
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Plaintiff had sufficient time thereafter to prepare and file an appropriate motion, including
that there were four days during that time period where (1) Plaintiff was not working and
(2) the library was open. Moreover, Plaintiff has made no attempt to file a motion to compel
after the expiration of the deadline, despite the fact that he has filed several pleadings
[Docket Nos. 190 & 193] on the docket since that time, including a detailed motion
regarding an Order entered by District Judge Christine M. Arguello.
The time has come for Plaintiff to proceed with the prosecution of his case. The
circumstances about which Plaintiff complains are ordinary incidents experienced by all
prisoners. They do not evidence a conspiracy perpetrated by Defendants or a motive by
anyone else to prevent Plaintiff from complying with the Court’s Orders or case deadlines.
Like all prisoners proceeding pro se, Plaintiff must find a way to prosecute his case within
the rules of his facility and in compliance with his legal obligations as a voluntary plaintiff
in a federal lawsuit.
The fact remains, however, that Plaintiff has failed to timely raise discovery issues
with the Court despite being provided ample opportunity to do so. Given that the Motion
for Summary Judgment has been pending since December 2010, Plaintiff must now file a
response. He must do so with the documents that he has in his possession and with the
legal research that he obtains from the law library. Accordingly,
IT IS HEREBY ORDERED that Plaintiff shall respond to the Motion for Summary
Judgment [#145] on or before July 18, 2011. No extensions of time shall be permitted.
Dated: June 17, 2011
BY THE COURT:
s/ Kristen L. Mix
United States Magistrate Judge
Kristen L. Mix
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