Blackman v. Torres

Filing 113

ORDER re: 104 Defendant's Notice Regarding Anticipated Hearing Testimony. by Magistrate Judge Boyd N. Boland on 8/26/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-02066-REB-BNB
ROBERT BLACKMAN,
Plaintiff,
v.
MR. TORRES, Correctional Officer,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Defendant’s Notice Regarding Anticipated Hearing Testimony
[Doc. #104, filed 8/20/2013] (the “Notice”).
On August 20, 2013, I entered an order granting “Plaintiff’s Motion in Request for
Production of Electronic Documents in re Evidentiary Hearing Set for 8/27/2013” (the “Motion
to Produce”) [Doc. #95]. In doing so, I stated:
Despite the plaintiff’s continuing allegations and complaints about
mail tampering by his jailors and my repeated expressions of
concern, see, e.g., Order [Doc. # 91] at pp. 3, 4-5, the government
has failed to come forward with a denial of the mail tampering
allegations, an affidavit indicating that an investigation into the
allegations was made and the results of that investigation, or any
other serious response. Consequently, I set the matter for an
evidentiary hearing on August 27, 2013, and stated that “I
anticipate testimony from ADX officials involved in the handling
of the plaintiff’s mail, as well as testimony from the plaintiff.” Id.
at p. 5. I also issued a Writ of Habeas Corpus Ad Testificandum
[Doc. # 92] requiring that the [plaintiff] be brought to court for the
August 27 hearing. I find that these actions are reasonable and
necessary to ascertain the facts surrounding the mail tampering
issue.

Order issued August 20, 2013 [Doc. #103].
I stated in a footnote that “Interference with judicial mail, if established, is intolerable.” I
construed the plaintiff’s Motion to Produce as a subpoena to produce evidence at the hearing on
August 27, 2013, and I granted it. I ordered that “[t]he Bureau of Prisons shall produce at the
hearing either (a) copies of the images identified together with the technology necessary to
display the images or (b) an affidavit from a knowledgeable representative confirming that a
thorough and good faith investigation was undertaken and the images no longer are available.”
In its Notice, the defendant lists four witnesses who will testify about “incoming and
outgoing mail handling procedures.” The defendant does not state that any of the witnesses are
(or were) involved with, and will testify about, the handling the plaintiff’s mail at issue here.
In addition, the defendant states in a footnote:
At the August 20, 2013, hearing, the possibility of utilizing recent
range videos at the August 27, 2013, hearing was discussed.
Undersigned counsel is still reviewing that possibility. To the
extent undersigned counsel does employ such videos at the August
27, 2013, hearing, they will be used for demonstrative purposes
only, and undersigned counsel will ensure that Plaintiff has the
opportunity to review the videos prior to the hearing.
The defendant’s statement directly contradicts my order to either produce the videos or
provide an affidavit from a knowledgeable representative regarding why the videos cannot be
produced.
IT IS ORDERED:
(1) The Bureau of Prisons shall produce at the August 27, 2013, hearing either (a)
copies of the images identified together with the technology necessary to display the images or

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(b) an affidavit from a knowledgeable representative confirming that a thorough and good faith
investigation was undertaken and the images no longer are available; and
(2) The Bureau of Prisons shall provide testimony from ADX officials involved in the
handling of the plaintiff’s mail.
Dated August 26, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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