Obando v. Zavaras et al
MINUTE ORDER denying in part and denied as moot in part 64 Plaintiff's Motion for Leave of Court to Conduct Discovery So He May Properly Reply to Defendants' Response. Plaintiff may file a Reply to Defendants' Response to Plaintiff's Motion for Partial Summary Judgment on or before 9/6/2012. By Magistrate Judge Kristen L. Mix on 8/17/12..(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01372-CMA-KLM
ARISTEDES W. ZAVARAS, DOC Executive Director,
TOM CLEMENTS, DOC Executive Director,
SUSAN JONES, CSP Warden,
MICHELLE NYCZ, Classification Chairperson,
JAMES OLSON, Committee Chairperson,
DAN DENNIS, Committee Member, and
JOHN DOE, CSP Assistant Administrative Head,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave of Court to Conduct
Discovery So He May Properly Reply to Defendants’ Response [Docket No. 64; Filed
June 26, 2012] (the “Motion”). On April 30, 2012, Plaintiff filed a Motion for Partial
Summary Judgment [#50]. Defendants filed a Response [#60] in opposition to the Motion
for Partial Summary Judgment on June 4, 2012. At Plaintiff’s request, the Court granted
an extension of time through July 2, 2012 for Plaintiff to file a Reply. See Minute Order
[#63]. Instead of filing a Reply, on June 26, 2012, Plaintiff filed the present Motion, seeking
leave of Court to conduct discovery to properly support his Reply to Defendants’ Response.
See Motion [#64]. On July 17, 2012, Defendants filed a Response [#69] in opposition to
the Motion. Plaintiff has not filed a Reply.
In the Motion, Plaintiff seeks the following specific forms of discovery: (1) unspecified
proof of the Offender Appeal form and Administrative Segregation Review forms along with
the depositions of Defendant Kevin L. Milyard and Defendant Susan Jones to prove they
were the respective Administrative Heads who signed the forms; (2) production of the
version of Administrative Regulation (“AR”) 600-07 that was in effect from November 1,
2010 to October 31, 2011; (3) production of IA 600-02 that was in effect from December
28, 2010 to January 1, 2012; (4) production of AR 600-02; and (5) production of AR 550-12.
In the Response, Defendants state that AR 600-07 and IA 600-02 have since been
put on the record in this matter, thus mooting Plaintiff’s request nos. 3 and 4. See
Response [#69] at 3; [#68-1, #68-2]. Examining the record, the Court finds that those
documents sought by Plaintiff are now on the record, and therefore Plaintiff’s request in
connection with them is now moot.
With respect to request nos. 1, 2, and 5, Plaintiff’s motion is premature. A
Scheduling Conference setting the parameters of discovery has not yet been held in this
matter. See Fed. R. Civ. P. 16(b)(3). Further, Fed. R. Civ. P. 56(d) does not permit a
movant to seek additional discovery after he files a motion for summary judgment. Only
the nonmovant is allowed to do so. See Fed. R. Civ. P. 56(d) (“If a nonmovant shows . .
. it cannot present facts essential to justify its opposition, the court may . . . allow time to
take discovery . . . .” (emphasis added)). In other words, because Plaintiff chose to file a
motion for partial summary judgment, the law does not afford him the opportunity to
conduct discovery to support it. The Court will enter a deadline for filing dispositive motions
at the schedule conference, which will be held in the future. Plaintiff may file motions for
summary judgment any time before that deadline, and he may conduct discovery to support
summary judgment any time between the date of the scheduling conference and the
discovery deadline. Accordingly,
IT IS HEREBY ORDERED that the Motion [#64] is DENIED in part and DENIED AS
MOOT in part, as outlined above.
IT IS FURTHER ORDERED that Plaintiff may file a Reply to Defendants’ Response
to Plaintiff’s Motion for Partial Summary Judgment on or before September 6, 2012. No
further extensions of time shall be granted absent a showing of exceptional cause.
Dated: August 17, 2012
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