Scott v. City and County of Denver, The

Filing 71

ORDER denying 69 Defendant's Unopposed Motion for an Order to Transport Plaintiff by Magistrate Judge Boyd N. Boland on 12/17/12.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 12-cv-00053-MSK-BNB
MAJOR JON MICHAEL SCOTT,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
By an Order [Doc. # 53], I granted the Defendant’s Opposed Motion to Compel
Independent Examination of Plaintiff Pursuant to Fed. R. Civ. P. 35 and required the plaintiff to
submit to an examination:
(a) to occur in Denver, Colorado, at a location selected by the defendant. The
location shall include a secure interview room, which is capable of being monitored, either
through a glass partition or by video feed;
(b) at a date and time as the parties may agree, but no later than January 14,
2013;
(c) to be conducted by Dr. Brenda Schick;
(d) to obtain an objective measurement of the plaintiff’s ability to communicate
and his language skills and to obtain information necessary to rebut the opinions of Dr. Jean
Andrews, plaintiff’s expert. The examination is not to be conducted in such a manner as to
constitute a de facto deposition; and

(e) which may be observed by Ms. Lucas in the same manner as it is observed by
the plaintiff’s guard or jailer. Ms. Lucas may not address the plaintiff or Dr. Schick during the
examination and may not make any objection during the course of the examination.
On December 12, 2012, at the parties’ request, I entered a Supplemental Order [Doc. #
68] requiring the Department of Correction (“DOC”) to transport the plaintiff to a Denver Police
Department holding cell for the purpose of allowing the Rule 35 examination to occur.
Apparently, the Supplemental Order was ineffective. Now, without opposition from the
plaintiff, the defendant requests an order (1) requiring the DOC to transport the plaintiff to its
Denver Reception and Diagnostic Center (“DRDC”), (2) transferring custody of the plaintiff
from the DOC to the Denver Sheriff’s Department, (3) requiring the sheriff to transport the
plaintiff to Denver Police Headquarters for the examination, (4) and requiring the sheriff to
transport the plaintiff back to DRDC and to the custody of the DOC. Defendant’s Unopposed
Motion for an Order to Transport Plaintiff [Doc. # 69, filed 12/14/2012] (the “Motion”).
I am not a jailor, but the requested order asks me to impose my will into the safekeeping
of the plaintiff in a manner I find inappropriate. No authority is provided indicating that I am
authorized to order the transfer of custody among state police agencies.
On a proper motion and with supporting authority, I will consider issuing a writ of habeas
corpus ad testificandum or other appropriate assistance.
IT IS ORDERED that the Motion [Doc. # 69] is DENIED.
Dated December 17, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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