Ankeney v. Zavaras et al

Filing 135

MINUTE ORDER denying 88 Plaintiff's Motion for Costs by Magistrate Judge Michael J. Watanabe on 6/30/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02085-WJM-MJW
RANDAL ANKENEY,
Plaintiff,
v.
DR. TIM CREANY,
NURSE PRACTITIONER KLENKE, and
NURSE PRACTITIONER HIBBS,
Defendants.

MINUTE ORDER

Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the plaintiff’s Motion for Costs (Docket No. 88) is
denied for the reasons stated below and substantially for the reasons stated in the
defendants’ Response (Docket No. 110).
Plaintiff seeks an award of costs of the depositions he had taken, which he
claims were required to prove and/or obtain an admission to his requests for admission
that had been denied or allegedly not fully answered. Looking at the full and complete
responses to plaintiff’s discovery requests, however, rather than at merely plaintiff’s
statement of the request and the fact that they were denied, this court finds that plaintiff
has not established that an award of costs are warranted pursuant to Fed. R. Civ. P.
37(c)(2). For example, while Dr. Creany denied the request for admission no. 1 that “[a]
serious diagnosis of torn tissue, meniscus, or ligaments in a knee of a patient
constitutes a serious medical need that requires treatment,” he went on in his response
to also state that “Torn tissue, menisci or ligaments in a knee (internal knee injuries) do
not necessarily constitute a serious medical need that requires treatment. Further, if
treatment is needed, it does not necessarily need to be surgical. Many internal knee
injuries do not cause serious problems and many can improve with conservative
management. Studies suggest that surgery for a knee problem does not necessarily
lead to the best outcome.” This complete answer does not necessarily conflict with the
doctor’s purported admission at his deposition that torn tissue in a knee is a serious
medical need that is treated regularly at Freemont Correctional Facility.
Furthermore, this court agrees with the defendants that the requests were not

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related to the one remaining issue in this case and served no substantial importance.
Rule 37(c)(2)(B) provides that the court must order payment of reasonable expenses
unless “the admission sought was of no substantial importance.”
Date:

June 30, 2011