Gandy v. Clements et al

Filing 84

MINUTE ORDER granting 76 Plaintiff's Request for Order of Protection and denying Plaintiff's Motion to Compel Pursuant to Fed. R. Civ. P. 37(a). By Magistrate Judge Michael J. Watanabe on 2/4/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03331-MSK-MJW
ROBERT D. GANDY,
Plaintiff,
v.
RICK RAEMISCH, Director, Colorado Department of Corrections, in his official capacity,
JERRY BARBER, Teacher II, Arkansas Valley Correctional Facility,
RICK MARTINEZ, Programs Manager, Arkansas Valley Correctional Facility, and
STEVE HARTLEY, Warden, Arkansas Valley Correctional Facility,
Defendants.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Request for Order of Protection (docket no.
76) is GRANTED for the following reasons outlined below.
It is FURTHER ORDERED that the Pro Se Incarcerated Plaintiff is not required to
respond to Defendants’ interrogatories, requests for production of documents, and
requests for admissions.
Defendants allege that on December 6, 2013, which was the deadline set by this
court to serve written discovery in the forms of interrogatories, requests for production of
documents, and requests for admissions (docket no. 46 at ¶¶ 9 f. and 9 g), they placed
in the U.S. Post Office Mail drop box for the Civil Litigation and Employment Section of
the Colorado Attorney General’s Office, an envelope which contained interrogatories,
requests for production of documents, and request for admissions addressed to Plaintiff.
Thus, Defendants argue that their discovery requests above were timely served upon
Plaintiff.
Plaintiff argues that Defendants’ discovery requests are untimely and therefore
this court should enter a protective order and not require Plaintiff to respond to
Defendants’ untimely discovery requests. In support of Plaintiff’s argument, he submits
Exhibit A attached to the subject motion (docket no. 76). Exhibit A shows that the
metered postage for the subject envelope reflects the date of December 9, 2013 and
not December 6, 2013. Accordingly, the court finds that the discovery requests that
were mailed to Plaintiff are untimely and therefore the subject motion (docket no. 76)

should be granted. See Sun Rover Energy, Inc. v. Nelson, No. 11-cv-00198-MSK-MEH,
2012 WL 2920902, at *3 (D. Colo. July 16, 2012) (citing cases and denying motion to
compel based on untimely discovery requests).
It is FURTHER ORDERED that Plaintiff’s Motion to Compel Pursuant to Fed. R.
Civ. P. 37(a) (docket no. 74) is DENIED. The court has reviewed the responses to
Plaintiff’s requests for production of documents nos. 11, 12, and 13. After such review,
this court finds that Defendants have fully responded to Plaintiff’s requests for
production of documents nos. 11, 12, and 13. See docket nos. 83-1, 83-1, and 83-3.
Accordingly, Plaintiff’s Motion to Compel Pursuant to Fed. R. Civ. P. 37(a) (docket no.
74) should be denied.
It is FURTHER ORDERED that Plaintiff and Defendants shall each pay their own
expense (i.e., attorney fees and costs) the two subject motions (docket nos. 74 and 76).
Date: February 4, 2014