Faircloth v. Schwartz, et al

Filing 209

ORDER Denying 205 Motion for Order compelling disclosure from and imposing sanctions against the Defendants for their Failure to make Disclosures or to Cooperate in Discovery; Sanctions FRCP Rule 37. Signed by Judge Robert E. Blackburn on 3/7/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02764-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ, Legal Assistant for BVCF, in her official and individual capacities,
Defendants.

ORDER DENYING MOTION TO COMPEL
Blackburn, J.
This matter is before me on the Motion for order compelling disclosure from
and imposing sanctions against the Defendants for their Failure to make
Disclosures or to Cooperate in Discovery; Sanctions FRCP Rule 37 [#205]1 filed
February 11, 2016. This motion was referred [#207] to the assigned magistrate judge.
However, having gained the consent of the magistrate judge, I withdraw the reference
[#207] of the motion and resolve the motion in this order.
The plaintiff is acting pro se. Therefore, I continue to construe his pleadings and
other filings generously and with the leniency due to pro se litigants. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.
2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner,
404 U.S. 519, 520-21 (1972)). Nevertheless, it is not “the proper function of the district
1

“[#205]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

court to assume the role of advocate for the pro se litigant.” Hall, 935 F.2d at 1110.
The plaintiff, James Faircloth, asserts a claim of denial of access to the court and
claims of retaliation. Mr. Faircloth is a prisoner in the Colorado Department of
Corrections and the defendant, Celia Schwartz, was a prison librarian at the time of the
events at issue. In his present motion, Mr. Faircloth claims Ms. Schwartz has not
provided sufficient responses to discovery sought by Mr. Faircloth. In his motion, Mr.
Faircloth claims repeatedly that Ms. Schwartz has failed to comply with various
discovery rules, including Fed. R. Civ. P. 26 and 37. Much of the motion is generalized
and conclusory. The motion does not provide specific facts to substantiate the claimed
violations of the applicable rules.
Under D.C.COLO.LCivR 37.1, when a party seeks relief under Fed. R. Civ. P. 26
or 37 concerning an interrogatory, request, or discovery response, the moving party
“shall set forth either in the text of the motion or in an exhibit to the motion the specific
interrogatory, request or response to which the motion is directed.” This rule requires
the moving party to specify the particular discovery request to which an inadequate
response allegedly has been given. Mr. Faircloth has failed to comply with this
fundamental requirement.
Mr. Faircloth is somewhat specific on two issues. First, he complains that he has
not received information about expert witnesses the defendant will use at trial. If the
defendant does not plan to use one or more expert witnesses, she is not required to
disclose anything about expert witnesses. Absent timely disclosure of expert witness
information, the defendant may not use an expert witness at trial. That is the situation in
this case; thus, no disclosure is required.
Second, Mr. Faircloth claims Ms. Schwartz has failed to provide video tape
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evidence and the audio tapes of two Code of Penal Discipline (COPD) hearings. Mr.
Faircloth does not specify what relevant events he claims were recorded on video tape.
The court cannot address the merits of this contention without some detail about what
Mr. Faircloth claims to be entitled. The tapes of COPD hearings concern hearings on
COPD charges which carry the numbers 130353 and 130516. Number 130353
concerns an incident on October 10, 2012, involving Ms. Schwartz. Mr. Faircloth was
found not guilty in that COPD hearing and he claims the not guilty finding proves that
Ms. Schwartz was lying about the behavior of Mr. Faircloth on October 10, 2012. Mr.
Faircloth was found guilty in number 130516.
In the course of resolving the motion for summary judgment of Ms. Schwartz, I
have examined the written record of these two COPD proceedings. For the reasons
stated on my order on the motion for summary judgment, the evidence in the record
concerning the October 10, 2012, incident does not support either of the claims of Mr.
Faircloth, even if one concludes that Ms. Schwartz described on that day bad behavior
of Mr. Faircloth which did not actually occur. Having the audio tape of the hearing
would not alter this conclusion. In his present motion, Mr. Faircloth cites no valid basis
for requiring the defendant to produce a tape recording of the hearing in number
130516, particularly when the court and the parties have the written record of that
hearing.
The motion of Mr. Faircloth is denied on both procedural and substantive
grounds. Procedurally, Mr. Faircloth has not complied with the basic requirement of
D.C.COLO.LCivR 37.1 that he specify the interrogatory, request, and response at issue
in the motion. Absent such specificity, it is impossible to address the motion of Mr.
Faircloth on the merits. Substantively, Mr. Faircloth makes repeated claims of rule
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violations by the defendant, but he provides no specific facts to substantiate these
claims. To the extent he addresses expert witnesses and video and audio tape
evidence, Mr. Faircloth has not shown a violation of applicable discovery rules by Ms.
Schwartz.
THEREFORE, IT IS ORDERED that the Motion for order compelling
disclosure from and imposing sanctions against the Defendants for their Failure
to make Disclosures or to Cooperate in Discovery; Sanctions FRCP Rule 37 [#205]
filed February 11, 2016, is denied.
Dated March 7, 2016, at Denver, Colorado.
BY THE COURT:

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