Barwick v. Behnke, et al

Filing 52

ORDER granting in part, denying in part, and denying without prejudice in part 50 Plaintiff's Motion for Production of Documents from the Defendants within 15 Days, Plaintiffs [sic] Stipulations to This His [sic] Motion Adopting of His Definitions in Their Answer Plaintiffs Motion for a Discovery Refferee [sic] and that His Emotional Support Animal Be Present at Deposition. By Magistrate Judge Kristen L. Mix on 3/28/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00355-PAB-KLM
DARWYNN L. BARWICK,
Plaintiff,
v.
JEFFREY BEHNKE, D.P.O. No. 96003, and
MICHEAL MAY, D.P.O. No. 00045,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s “Motion for Production of
Documents from the Defendants within 15 Days, Plaintiffs [sic] Stipulations to This
His [sic] Motion Adopting of His Definitions in Their Answer Plaintiff’s Motion for a
Discovery Refferee [sic] and that His Emotional Support Animal Be Present at
Deposition” [Docket No. 50; Filed March 27, 2012] (the “Motion”). For the reasons stated
below, the Court GRANTS IN PART, DENIES IN PART, and DENIES WITHOUT
PREJUDICE IN PART Plaintiff’s Motion.
As a preliminary matter, the Motion does not comply with the duty to confer
prescribed by D.C.COLO.LCivR 7.1A. Pursuant to Local Rule 7.1A., Plaintiff must have
conferred or made reasonable, good faith efforts to confer with opposing counsel to resolve
all of the disputed issues raised in the Motion. Additionally, Plaintiff must state in the
Motion, or in a certificate attached to the Motion, his specific efforts to comply with this
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Local Rule. Plaintiff did not comply with these instructions in the Motion at issue. Plaintiff
has been warned that his failure to comply with Local Rule 7.1A. may result in the denial
without prejudice of the non-complying motion. See Minute Ord., [#39]. This is Plaintiff’s
last warning: any future motion not in compliance with Local Rule 7.1A. will be summarily
stricken from the record.
In the interests of judicial efficiency and expedience, the Court resolves Plaintiff’s
Motion as follows.1
I.

Requests for Production
Plaintiff includes his Requests for Production directed to Defendants in his Motion.

Written discovery requests need not be filed with the Court, and it is unclear whether
Plaintiff moves to compel responses to these requests. See Fed. R. Civ. P. 5(d)(1). If
Plaintiff has served his written discovery requests on Defendants and seeks to compel their
responses, Plaintiff may file a motion to compel compliant with Fed. R. Civ. P. 37(a)(3) and
D.C.COLO.LCivR 37.1. The Motion is denied without prejudice in this respect.
II.

Request for a “Discovery Refferee” [sic]
Plaintiff asks the Court to appoint a “referee” to be present during his deposition, due

to Plaintiff’s expectation that opposing counsel may “become very difficult during the
deposition process.” [#50] at 4. Plaintiff presents no factual support indicating that
opposing counsel have been anything other than professional during the course of this
litigation. Nevertheless, the Court will grant this request as follows. Plaintiff’s deposition
may be conducted in the jury room attached to the undersigned’s courtroom in the Byron
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The Court may rule on a motion at any time after it is filed, without waiting for the filing of
a response or reply. D.C.COLO.LCivR 7.1C.

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G. Rogers United States Courthouse.

The undersigned will not be present at the

deposition for its duration, but will be available in the Courthouse should a discovery
dispute arise during the deposition. Plaintiff and counsel for Defendants shall conference
together and call Chambers at [phone] on or before April 5, 2012, to schedule a
mutually convenient date and time for Plaintiff’s deposition.
III.

Request for Attendance of an Emotional Support Animal
Plaintiff requests that the Court issue an order allowing his “emotional support

animal” to be present at his deposition. [#50] at 4. In support of this request, Plaintiff
included two letters signed by Andrew Steele, MD, indicating that Plaintiff utilizes an
emotional support animal, also referred to as his “therapy dog,” for coping with his
depression and anxiety. Id. at 8, 9. The letters are dated March 14, 2010, and April 13,
2011. Id. Plaintiff presents no other evidence or factual development related to this
request. See [#50].
Pursuant to the regulations related to the Americans with Disabilities Act (“ADA”)
authored by the Department of Justice, a service animal is defined as “any guide dog,
signal dog, or other animal individually trained to do work or perform tasks for the benefit
of an individual with a disability.” 28 C.F.R. § 36.104 (2011). “[T]he provision of emotional
support, well-being, comfort, or companionship do[es] not constitute work or tasks for the
purposes of this definition.” Id. An emotional support animal may qualify as a “permitted
reasonable accommodation[ ] for persons with disabilities” under the Fair Housing Act, but
does not qualify as a service animal within the meaning of the ADA. See Nondiscrimination
on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 Fed.

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Reg. 56,236-01, 56,240 (Sept. 15, 2010) (codified at 28 C.F.R. pt. 36); 28 C.F.R. § 36.104.
Plaintiff presents no authority indicating that emotional support animals are recognized as
a permitted reasonable accommodation in public spaces (i.e., not housing), and the Court’s
own research does not indicate that attendance of an emotional support animal during
proceedings at a courthouse is a legally authorized accommodation.
The Court therefore denies Plaintiff’s request to bring his emotional support animal
to the Rogers Courthouse for his deposition, and denies without prejudice this request as
it pertains to his deposition if held at a location other than the Rogers Courthouse. As
previously explained to Plaintiff, he is a voluntary litigant who initiated this action, and
nothing in the Federal or Local Rules entitles Plaintiff to bring a lawsuit seeking six million
dollars in damages yet escape the responsibility of complying with the obligations that bind
all litigants. See Green v. Dorell, 969 F.2d 915, 917 (10th Cir. 1992) (Pro se litigants “must
follow the same rules of procedure that govern other litigants.”); Minute Ord., [#48].
IV.

Conclusion
Accordingly,
IT IS HEREBY ORDERED that the Motion is GRANTED IN PART, DENIED IN

PART, and DENIED WITHOUT PREJUDICE IN PART as stated herein.
IT IS FURTHER ORDERED that Plaintiff and counsel for Defendants shall
conference together and call Chambers at [phone] on or before April 5, 2012, to
schedule a mutually convenient date and time for Plaintiff’s deposition, to be conducted in
the jury room attached to the undersigned’s courtroom in the Byron G. Rogers United
States Courthouse.

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Dated: March 28, 2012

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