Smith v. Nichols

Filing 147

ORDER DENYING #140 EMERGENCY MOTION TO COMPEL PRODUCTION OF DOCUMENTS BEFORE TRIAL as premature, by Judge Marcia S. Krieger on 12/16/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-01139-MSK-BNB
TOMMIE SMITH,
Plaintiff,
v.
SERGEANT VIRGIL NICHOLS,
Defendant.

ORDER DENYING EMERGENCY MOTION TO COMPEL PRODUCTION OF
DOCUMENTS BEFORE TRIAL

THIS MATTER comes before the Court on Plaintiff Tommie L. Smith’s Emergency
Motion to Compel Production of Documents Before Trial (#140), to which Defendant Sergeant
Virgil Nichols has responded (#145). Having considered the same, the Court FINDS and
CONCLUDES the following.
The Plaintiff asserts a single claim for unconstitutional use of excessive force by
Sergeant Nichols1 on February 24, 2009. Trial is set to begin on January 3, 2012. The Plaintiff
was pro se until October 17, 2011, when counsel entered their appearances. A Law and Motion
Hearing was held in this matter on November 22, 2011, at which time the Plaintiff moved to
continue the trial and to reopen discovery. Both motions were denied, although the Plaintiff was
granted leave to take six pretrial depositions authorized by the previous discovery orders.
Counsel for the Plaintiff indicated that, as to document discovery, they were concerned about

1

Mr. Smith’s complaint (#22) delineates three separate claims, but review of them as
they pertain to Sergeant Nichols reveals that they all pertain to the same incident.

obtaining certain personnel documents of several Colorado Department of Corrections
(“CDOC”) employees as well as governing policies. Because counsel for the Defendant
indicated that he would voluntarily provide some of this material, the Court directed the parties
to cooperate informally as to production of additional documents and reminded them of their
obligations under Fed. R. Civ. P. 26. The Court also reminded counsel for the Plaintiff that the
Plaintiff had the option of issuing a third-party subpoena to the extent the documents sought
were not the property of the Defendant.
Based on the parties’ representations in their briefs, it appears that significant disclosure
has occurred, including the requested policies, portions of the personnel files relating to
disciplinary action against the Defendant, the Defendant’s performance reviews and job
assignment history, training histories of the CDOC employees involved or present at the
incident, and other pertinent information.
The Plaintiff, however, now seeks to compel production of documents described in a
broad discovery request, i.e., “all information regarding inmate complaints, grievances, or
charges against the SCF personnel involved and all ‘Use of Force’ reports filed by them and the
disciplinary actions taken against them, regardless of whether SCF categorizes them under the
name ‘Personnel Files.’” Mot. to Compel. at 4. The Plaintiff indicates that he has issued a
subpoena requesting these and other documents as well.
In response, counsel for the Defendant states that he advised the Plaintiff that inmate
grievances, lawsuits, and use of force reports are not contained in employee personnel files. The
Defendant explains that information related to inmate grievances is contained in a database that
is searchable only by the name of the inmate, not by the name of the employee against whom the

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grievance was asserted.2 The Defendant has not described any limitations or difficulties with
respect to Use of Force Reports, assuming such documents exist and are relevant.
The Court notes that the parties appear to have complied with the Court’s order to
cooperate informally in exchanging relevant documents. The scope of material now sought by
the Plaintiff exceeds the requests suggested at the November 22, 2011 Law and Motion Hearing.
The Plaintiff has not moved to reopen discovery and, in the absence of a formal pending
discovery request or a showing that the Defendant has not complied with its Rule 26 disclosure
obligations, the procedures of Fed. R. Civ. P. 37 are inapplicable. Moreover, even if the Plaintiff
so moved, this document request would be denied. As the Court has previously discussed, the
time for discovery has passed. This matter will proceed to trial in a matter of weeks. The
Plaintiff’s document request is a broad discovery request that might lead to relevant and
admissible evidence; however, at this stage of the proceeding, Plaintiff would only be entitled to
compelled production of material that Plaintiff can demonstrate would be relevant to the claims
as set forth in the Amended Final Pretrial Order and admissible at trial. The Plaintiff has not
made such a showing.
In addition, since the Plaintiff apparently has issued a subpoena for the requested
documents, it is unclear what additional relief is sought by way of the Emergency Motion to
Compel.3 Assuming the subpoena has been issued and served, any issues that arise as a result of

2

The Defendant suggests that the Plaintiff could ask the employees in their depositions
about the names of inmates who have filed grievances against them; the Defendant would then
be able to locate documents related to that specific inmate and grievance. It is unclear whether
the Plaintiff pursued this possibility.
3

In the request for relief, the Plaintiff requests that the Court order “opposing counsel to
cooperate to ensure timely production of the documents requested.” Mot. to Compel, at 5. This
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the response to the subpoena can be addressed when they are ripe.
IT IS THEREFORE ORDERED that
(1)

The Emergency Motion to Compel Production of Documents Before Trial (#140)
is DENIED as premature.

Dated this 16th day of December, 2011

BY THE COURT:

Marcia S. Krieger
United States District Judge

request is too vague for the Court or the Defendant to understand the specific actions the
Defendant would be required to take, assuming the motion were granted.
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