Miller v. Kastelic et al

Filing 81

ORDER granting in part and denying in part 69 Motion for Discovery. As described above, the Clerk of the Court is hereby directed to issue and serve a subpoena on CCCF. All other requests for discovery contained in the Motion are inappropriate. Therefore, Plaintiff's Amended Motion for Subpoena of Discovery (filed May 22, 2013; docket # 69 ) is granted in part and denied in part as stated herein. By Magistrate Judge Michael E. Hegarty on 06/25/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02677-CMA-MEH
LARRY C. MILLER,
Plaintiff,
v.
CAPTAIN KASTELIC,
DANIEL REIMER, and
LT. RIDGWELL,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Amended Motion for Subpoena of Discovery [filed May 22,
2013; docket #69]. With the Motion fully briefed, the Court determines that oral argument would
not materially facilitate its adjudication of the matter. For the reasons set forth below, the Motion
is granted in part and denied in part as stated herein.
I.

Background
Plaintiff, proceeding pro se, initiated this action on October 9, 2012. (Docket #1.) His

claims arise from alleged threats and an assault by a fellow inmate. Plaintiff names the inmate
(Daniel Reimer) as a Defendant in this action, as well as various prison officials who allegedly failed
either to protect Plaintiff from the assault or to entertain Plaintiff’s assertion of self defense during
the disciplinary proceedings that followed. In total, Plaintiff’s Complaint contains twelve causes
of action against eight Defendants. (Id.) Upon review of the Complaint, Judge Babcock dismissed
Plaintiff’s eighth, ninth, and tenth claims, and dismissed Defendants Tom Clements, Corrections
Corporation of America, and Warden Miller. (Docket #17.) Plaintiff voluntarily dismissed

Investigator Brownstein on April 8, 2012. (Dockets ##48,51.) With the dismissal of Investigator
Brownstein, Plaintiff’s twelfth claim became moot. (See docket #1.) Thus, Plaintiff proceeds on
claims one, two, three, four, five, six, seven, and eleven against Defendants Kastelic, Reimer, and
Ridgwell.
With the commencement of discovery, Plaintiff filed a motion asking the Court to serve
subpoenas on Crowley County Correctional Facility (“CCCF”). (Docket #64.) In particular,
Plaintiff sought several categories of documents, including duty rosters, various prison policies,
incident reports, and personnel rosters pertaining to the alleged assault. The Court denied the
motion without prejudice due to Plaintiff’s failure to demonstrate his ability to pay for the
documents or to obtain them for free. (Docket #66.)
Plaintiff renewed his request for subpoenas and discovery by filing the pending Motion on
May 22, 2013. (Docket #69.) Along with the Motion, Plaintiff submitted a copy of his inmate
account balance demonstrating that Plaintiff has ample funds to pay for the documents he seeks. (Id.
at 6.) The Court ordered Defendants to respond to the motion by June 6, 2013, and permitted
Plaintiff to file a reply no later than June 20, 2013. (Docket #72.) Although Defendants Kastelic
and Ridgwell filed a timely response, Defendant Reimer filed nothing. (Docket #75.) Plaintiff
submitted his reply on June 21, 2013. (Docket #79.)

Pursuant to Fed. R. Civ. P. 6(d) and in

consideration of Plaintiff’s incarcerated status, the Court accepts Plaintiff’s reply as filed.
II.

Discussion
Plaintiff’s Motion seeks seven categories of discovery, which the Court identifies using the

titles set forth the Motion: (1) Official Reports; (2) Duty Rosters; (3) Policies and Rules; (4)
Identification of Witnesses; (5) [documents regarding] Shift Commander Kastelic; (6) [documents
regarding] Inmate Daniel Reimer; and (7) [documents regarding] Lt. Ridgwell. (Docket #69.) The

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Court will address each in turn.
Beginning with the Official Reports, the Court finds that Plaintiff’s request for such
documents is reasonably related to his claims in this action. Therefore, the Court will direct the
issuance of a subpoena on CCCF to produce the three reports identified in this category. CCCF
remains free to challenge Plaintiff’s request in accordance with Fed. R. Civ. P. 45(c).
With regard to the Duty Rosters, the Court notes several deficiencies. First, as raised in
Defendants’ response, Plaintiff’s request for the addresses of various corrections officers presents
serious safety issues. Instead of addressing these safety issues in his reply, Plaintiff simply questions
why his own safety was disregarded. Such rhetoric does not persuade the Court to permit discovery
into this area, particularly when it considers the recent murder of Tom Clements, a former defendant
in this case. More obviously, the names and addresses of various officers are not documents subject
to production via a subpoena. The only document identified in the Duty Rosters category is the
medical roster containing the names and addresses of persons working the evening shift on July 1617, 2012. However, Plaintiff appears to seek this document only because it contains such contact
information. Thus, the Court declines to order the issuance of subpoenas for any of the information
set forth in the Duty Rosters category of Plaintiff’s Motion.
The Policies and Rules category is more benign. Here, Plaintiff seeks policies pertaining to
the Special Threat Group, inmate unit assignment, and security. The Court finds that such
documents are reasonably related to Plaintiff’s asserted claims and will direct the issuance of a
subpoena to CCCF to produce the policies described in this category. The Court reiterates that
CCCF may challenge Plaintiff’s request in accordance with Fed. R. Civ. P. 45(c).
Plaintiff’s request for the Identification of Witnesses is not properly suited for a subpoena
to produce documents. Moreover, as noted above, the Court refuses to enter any orders requiring the

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production of prison personnel’s addresses at this time. Thus, the Court will not direct the issuance
of any subpoenas related the Identification of Witnesses as described in the Motion.
With respect to Plaintiff’s requests for documents pertaining to Defendants Kastelic, Reimer,
and Ridgwell, Plaintiff is entitled to discovery from each Defendant as provided by the Scheduling
Order governing this litigation. (See docket #42.) A subpoena is not the proper mechanism for
obtaining discovery from an existing party. In the event Plaintiff cannot obtain the discovery he
seeks from Defendants, he may file a motion to compel as set forth in Fed. R. Civ. P. 37.
III.

Conclusion
As described above, the Clerk of the Court is hereby directed to issue and serve a subpoena

on CCCF requesting the following documents:
1.

“First responders report to unit 3B, cell 5102, 7/16/12”;

2.

“Shift commander’s action report of ‘CODE BLUE’ to unit 3B cell 5102, 7/16/12”;

3.

“Investigator Darren Cortese (office of the Inspector General) report of attack by inmate
Daniel Reimer #98949, upon inmate Larry C. Miller #128008, in unit 3B, cell 5102, 7/16/12
. . .to include a copy of 31 photos of crime scene and both inmates”;

4.

“STG (Special Threat Group) housing policies and inmate requirements for being housed
in STG cell”;

5.

“IN-PROCESSING -assignments of living unit criteria (who assigns housing?)”; and

6.

“Security policy and rules related to known threat present 7/16/12, potential for violence due
to population and history of complaints of violence and behavior.”

All other requests for discovery contained in the Motion are inappropriate. Therefore, Plaintiff’s
Amended Motion for Subpoena of Discovery [filed May 22, 2013; docket #69] is granted in part
and denied in part as stated herein.

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Dated and entered at Denver, Colorado, this 25th day of June, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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