Tuttamore v. Allred et al

Filing 206

ORDER granting in part and denying in part 199 Motion for Order and Motion to Compel. Motion to Compel is denied. Motion for Order is granted to the extent that Plaintiff seeks to have the United States Marshall Serve his Second Amended Complaint. By Magistrate Judge Kathleen M. Tafoya on 12/18/2012.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–01522–MSK–KMT

TIMOTHY S. TUTTAMORE,
Plaintiff,
v.
DR. ALLRED,
A. OSAGIE,
ADX WARDEN DAVIS,
M. SMITH, and
UNKNOWN UTILIZATION COMMITTEE MEMBERS, all in their official and individual
capacities,
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion seeking the Court’s [sic] to Serve
the Added Defendants Pursuant to Tuttamore Second Verified Amended Complaint as
Requested within Doc. # 119 & 133 and to Compel to Defendant’s [sic] to Respond to Verified
Plaintiff’s Motion for a Preliminary Injunction.” (Doc. No. 199, filed December 14, 2012.) It is
ORDERED that Plaintiff’s Motion is GRANTED in part and DENIED in part as follows.
Plaintiff’s Motion (Doc. No. 199) is DENIED to the extent that Plaintiff seeks to compel
Defendants to respond to the “‘Verified’ Plaintiffs [sic] Motion for a Preliminary Injunction for
Proper Access to the Courts” (Doc. No. 120, filed Apr. 19, 2012). The Motion for Preliminary

Injunction was terminated pursuant to District Judge Krieger’s order administratively closing
this case. (See Doc. No. 128, filed May 4, 2012.) Moreover, at the time the Motion for
Preliminary Injunction was filed, it did not relate to the subject-matter of Plaintiff’s original
Complaint (Doc. No. 1)—the operative pleading at that time. Penn v. San Juan Hospital, 528
F.2d 1181, 1185 (10th Cir. 1975) (to succeed on a motion for preliminary injunction motion,
there must be a relationship between the temporary and permanent relief sought). As such, to the
extent that Plaintiff seeks the same or similar relief, a renewed motion must be filed.
Plaintiff’s Motion (Doc. No. 199) is GRANTED to the extent that he seeks to have the
United States Marshal Serve his Second Amended Complaint (Doc. No. 191). The court has
granted Plaintiff leave to proceed in forma pauperis. As such, it is ORDERED that, if
appropriate, the Clerk shall attempt to obtain a waiver of service from the defendants. If unable
to do so, the United States Marshal shall serve a copy of the amended complaint, summons,
order granting leave to proceed pursuant to 28 U.S.C. § 1915, and all other orders upon the new
defendants. If appropriate, the Marshal shall first attempt to obtain a waiver of service of these
documents pursuant to Fed. R. Civ. P. 4(d). All costs of service shall be advanced by the United
States.
Dated this 18th day of December, 2012.

2