Celani v. Taver et al

Filing 112

ORDER. ORDERED that plaintiff's Motion to Reopen Discovery, to Establish Scheduling Order, and Request for Expedited Review 108 is GRANTED in part andDENIED in part as indicated in this Order. Further ORDERED that Adam Neumeyers deposition shall be scheduled and completed within 30 days of this Order, by Judge Philip A. Brimmer on 10/19/11.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-01501-PAB-KLM
CARLO CELANI,
Plaintiff,
v.
ADAM NEUMEYER,
Defendant.

ORDER

This matter comes before the Court on the Motion to Reopen Discovery, to
Establish Scheduling Order, and Request for Expedited Review [Docket No. 108] filed
by plaintiff on September 30, 2011. Defendant filed his response in opposition to the
motion [Docket No. 110] on October 12, 2011. Plaintiff, through his new counsel, seeks
an order from this Court to reopen discovery. The deadline for completion of general
discovery in this case expired on June 30, 2010. See Docket No. 35. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
Plaintiff, Carlo Celani, is an inmate at the Limon Correctional Facility of the
Colorado Department of Corrections. Plaintiff filed a pro se complaint on June 26, 2009
[Docket No. 3], which was amended on October 19, 2009 [Docket No. 11]. In the
complaint, plaintiff alleges that Officer Adam Neumeyer of the Aurora Police
Department used excessive force in effectuating his arrest on June 17, 2008. Docket

No. 11 at 5. Plaintiff asserts that as a result of the excessive force he has suffered
injuries and seeks damages for violations of his civil rights under 42 U.S.C. § 1983. Id.
On February 2, 2010, Magistrate Judge Kristen Mix held a scheduling
conference [Docket No. 35]. At that hearing, Judge Mix set the discovery deadline for
June 30, 2010. Docket No. 35 at 1. On July 19, 2010, plaintiff filed a Motion to Compel
Discovery [Docket No. 64], where he sought to compel defendants to provide: (1) a
complete list of personnel files maintained by the Aurora Police Department for all
defendants; (2) reviews, notes, and past reports of officers’ performances; (3) reports of
the police department’s internal investigation of plaintiff’s arrest; and (4) performance
reports made by defendants’ supervisors. Docket No. 64 at 1-2. Judge Mix denied
plaintiff’s motion as untimely, noting that it was filed after the June 30, 2010 discovery
deadline. Docket No. 67 at 1. On March 21, 2011, Judge Mix entered a Final Pretrial
Order [Docket No. 81]. The Order stated that “Discovery has been completed. Unless
otherwise ordered, upon showing of good cause in an appropriate motion, there will be
no discovery after entry of the Pretrial Order.” Docket No. 81 at 6.
Plaintiff represented himself in this case until August 16, 2011, when he was
able was able to secure counsel to act on his behalf. Because counsel was potentially
interested in representing plaintiff shortly before the trial date of August 1, 2011, but
had not yet entered an appearance, the August 2011 trial was vacated and rescheduled
for January 3, 2012. Docket No. 100 at 2.
Plaintiff now seeks to reopen discovery and establish a scheduling order.
Docket No. 108 at 1. In the motion, plaintiff seeks to take the deposition of defendant
Neumeyer, to interview eight witnesses under oath, to subpoena third-party documents,
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including medical records of plaintiff’s treating physicians, and to obtain the disciplinary
records, use of force reports, and internal affairs records of defendant and other officers
involved in plaintiff’s arrest. Docket No. 108 at 2-4.
Defendant opposes plaintiff’s request to reopen discovery, arguing that there is
no good cause to reopen discovery. Defendant states that, prior to the discovery
deadline, plaintiff made no effort to conduct depositions of Officer Neumeyer or any
other officers who participated in plaintiff’s arrest. Docket No. 110 at 2. Moreover,
defendant contends that plaintiff’s pro se status should not be considered because
Judge Mix advised plaintiff of various methods available to obtain discovery and,
despite Judge Mix’s advice, plaintiff made no effort to schedule any depositions, nor did
he request assistance from the Court. Docket No. 110 at 2.
Defendant also alleges that plaintiff’s motion is futile and moot since defendant
has provided plaintiff’s counsel with Officer Neumeyer’s internal affairs record; his
training records; all documents related to plaintiff’s arrest; records of plaintiff’s medical
treatment while detained in Aurora; records of charges and proceedings against
plaintiff; and training materials and policies for internal affairs and the Aurora Police
Department. Docket No. 110 at 2-3. Defendant does not, however, object to reopening
discovery to allow plaintiff to subpoena documents in the possession of third parties.
II. ANALYSIS
A. Legal Standard for Reopening Discovery
The Court may modify its scheduling orders upon a showing of good cause. See
Fed. R. Civ. P. 16(b)(4); D.C.COLO.LCivR 16.1. Whether to modify a scheduling order

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“to extend or reopen discovery is committed to the sound discretion” of the Court.
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). When exercising its
discretion, the Court considers the following factors: (1) whether trial is imminent; (2)
whether the request to reopen or extend discovery is opposed; (3) whether the nonmoving party would be prejudiced; (4) whether the moving party was diligent in
obtaining discovery within the guidelines established by the Court; (5) the foreseeability
of the need for additional discovery in light of the time allowed for discovery by the
Court; and (6) the likelihood that discovery will lead to relevant evidence. Id.
B. The Smith Factors
Applying the Smith factors, the Court grants plaintiff’s motion to reopen discovery
for the limited purpose of allowing plaintiff to take defendant Neumeyer’s deposition and
to seek discovery of documents in the possession of third parties. The Court, however,
denies plaintiff’s request insofar as it seeks leave to interview eight witnesses under
oath and seeks discovery of documents related to disciplinary records, use of force
reports, and internal affairs records of other officers involved in plaintiff’s arrest.
Additionally, the request for Officer Neumeyer’s disciplinary records and internal affairs
files is denied as moot.
1. Imminence of Trial
The trial in this case is set for January 3, 2012. The Court finds that a deposition
of defendant Neumeyer and document discovery from third parties may be reasonably
accomplished before the January trial. However, while interviews of eight witnesses
under oath could be accomplished before trial, it would pose greater prejudice on

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defendant. Nevertheless, the Court finds that because trial does not begin for several
months, the first Smith factor weighs in favor of granting plaintiff’s motion.
2. Whether the Request is Opposed
With regard to the second factor, defendant does not oppose plaintiff’s request
to seek documents from third parties. However, defendant opposes any depositions,
interviews under oath, or the need to provide plaintiff with the disciplinary and internal
affairs files of non-party officers. The Court finds that, because defendant opposes the
request and plaintiff’s request is made over a year after the close of discovery, the
second factor weighs in favor of denying plaintiff’s request.
3. Whether the Non-Moving Party would be Prejudiced
Defendant asserts that, if plaintiff’s motion is granted, he would be prejudiced
because trial preparation has commenced based on the evidence already discovered in
the case. Defendant alleges that reopening discovery for interviews and depositions
would require the use of additional personnel and newly discovered evidence may
require a drastic change in trial strategy. Defendant states that a change in strategy
could lead to substantial expense, which is prejudicial.
Plaintiff contends that this request is unlikely to prejudice defendant because the
deposition subject and most interviewees are employees of the Aurora Police
Department. Moreover, the documents sought are primarily in the custody of the
Aurora Police Department. Additionally, defendant’s counsel are already familiar with
the case, so additional depositions are not unduly burdensome.
The Court finds that allowing the deposition of Officer Neumeyer is not unduly
prejudicial. The additional time required to depose Officer Neumeyer would not be
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unusually burdensome to defendant. However, requiring defendant’s counsel to attend
the interview of eight witnesses is unduly prejudicial. As defendant mentioned, the
interviews would require substantial expense and could lead to significant scheduling
difficulties. Accordingly, the third Smith factor weighs in favor of allowing plaintiff to
depose Officer Neumeyer, but weighs against the requested interviews.
4. Diligence of Moving Party
With regard to the fourth factor, plaintiff argues that he was incapable of
proceeding with discovery given the fact that he was in custody. Plaintiff alleges that he
attempted to conduct document discovery, but that his request was denied because it
was untimely and did not observe proper procedure. Plaintiff states that he has been
diligent because new counsel who entered an appearance after the last trial date
promptly made a request to reopen discovery.
Defendant counters that plaintiff was not diligent because he never requested
the opportunity to depose or interview Officer Neumeyer, despite the fact that plaintiff
conducted other discovery earlier in the case. Defendant argues that Judge Mix
advised plaintiff on ways to conduct discovery and that plaintiff’s other successful
efforts at discovery indicate that he could conduct discovery despite being in custody.
The Court finds that, given plaintiff’s former pro se status, the fact that he is
currently in custody, and the fact that his counsel entered an appearance after the trial
date was set, it is in the interest of justice to reopen discovery on a limited basis.
Therefore, the fourth Smith factor weighs in favor of granting plaintiff’s motion.

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5. Foreseeability of the Need for Additional Discovery
With regard to the fifth factor, the Court finds that plaintiff has not adequately
explained why the need for this discovery was not reasonably foreseeable during the
Court-prescribed discovery period. It is clear that plaintiff was aware that this
information was relevant to his case as he filed a Motion to Compel [Docket No. 64] on
July 19, 2010. Plaintiff does not adequately explain why he filed the motion after the
June 30, 2010 deadline, nor does plaintiff explain why he waited a year and a half after
the close of discovery to seek leave to reopen discovery. Therefore, the fifth Smith
factor weighs in favor of denying plaintiff’s motion.
6. Likelihood that Discovery will lead to Relevant Evidence
Defendant does not contest that Officer Neumeyer’s deposition could lead to
relevant evidence. Defendant, however, believes that the disciplinary and internal
affairs files belonging to non-party witness officers will not disclose relevant evidence.
Plaintiff contends, that although defendant has provided discovery, additional
discovery is necessary because many issues related to trial remain unresolved.
Plaintiff argues that records about prior disciplinary actions, use of force reports, and
internal affairs investigations would allow plaintiff to identify a potential motive, pattern
of behavior, or other admissible evidence at trial.
With regard to the sixth Smith factor, because defendant does not contest that
Officer Neumeyer’s deposition could lead to relevant evidence, the Court finds that this
factor weighs in favor of plaintiff’s motion to reopen discovery for purposes of deposing

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defendant. Otherwise, plaintiff fails to show that discovery related to other officers’
disciplinary records is not simply a fishing expedition.
Four of the six Smith factors weigh in favor of granting plaintiff’s motion in part.
Therefore, the Court will reopen discovery for the limited purpose of allowing plaintiff to
depose Officer Neumeyer and for plaintiff to seek discovery of documents in the
custody of third parties. The Court, however, denies plaintiff’s request insofar as it
seeks leave to interview eight witnesses under oath and seeks discovery of documents
related to disciplinary records, use of force reports, and internal affairs records of other
officers involved in plaintiff’s arrest. Additionally, because there are no disciplinary
records or internal affairs files related to Officer Neumeyer, that request is denied as
moot.
III. CONCLUSION
Accordingly, it is
ORDERED that plaintiff’s Motion to Reopen Discovery, to Establish Scheduling
Order, and Request for Expedited Review [Docket No. 108] is GRANTED in part and
DENIED in part as indicated in this Order. It is further
ORDERED that Adam Neumeyer’s deposition shall be scheduled and completed
within 30 days of this Order.

DATED October 19, 2011.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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