Toney v. Berkebile et al

Filing 146

ORDER by Magistrate Judge Boyd N. Boland on 4/2/14. The plaintiff's Motion to Reconsider Motion for Order Permitting Depositions of Witnesses 124 is DENIED. The plaintiff's Motion for Production to Produce a Copy of the Scheduling Confere nce Transcripts from (Doc. 54) 128 is DENIED. The plaintiff's Motion to Reconsider Motion for Subpoena and Service by U.S. Marshal 132 is DENIED. Plaintiff's Motion for Leave to Answer Defendants' Response 139 is GRANTED. The plaintiff's Motion for 7-Day Extension of Time to File a Reply 141 is GRANTED. (bsimm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00111-RM-BNB
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A.W. HALL,
A.W. KUTA,
S.I.S. REDDEN,
R. MARTINEZ,
MS. RANGEL,
MS. SUDLOW, and
MR. MADISON,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following papers:
(1) The plaintiff’s Motion to Reconsider Motion for Order Permitting Depositions
of Witnesses [Doc. #124, filed 02/20/2014] (the “First Motion for Reconsideration”);
(2) The plaintiff’s Motion for Production to Produce a Copy of the Scheduling
Conference Transcripts from (Doc. 54) [Doc. #128, filed 02/24/2014] (the “Motion for
Production”);
(3) The plaintiff’s Motion to Reconsider Motion for Subpoena and Service by U.S.
Marshal [Doc. #132, filed 02/25/2012] (the “Second Motion to Reconsider”);
(4) Plaintiff’s Motion for Leave to Answer Defendants’ Response (Doc. 134) [Doc.
#139, filed 03/21/2014] (the “Motion to File a Reply”); and

(5) The plaintiff’s Motion for 7-Day Extension of Time to File a Reply (Doc. #134)
[Doc. #141, filed 03/25/2014] (the “Motion for Extension of Time”).
The plaintiff is incarcerated by the Federal Bureau of Prisons (“BOP”) at the United
States Penitentiary-Administrative Maximum in Florence, Colorado (“ADX”). He filed his
Amended Prisoner Complaint on February 15, 2013 [Doc. #20] (the “Amended Complaint”).
The Amended Complaint asserts several claims against the defendants for interfering with his
incoming and outgoing mail and failing to properly process certain grievances.
The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however,
who must comply with the fundamental requirements of the Federal Rules of Civil Procedure.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
First Motion for Reconsideration
On January 24, 2014, the plaintiff filed a motion [Doc. #118] requesting an order
permitting the deposition of eight witnesses. In denying the motion [Doc. #122], I stated:
The plaintiff does not specifically request that the court pay for the
costs of the requested depositions, although he is proceeding in
forma pauperis pursuant to 28 U.S.C. § 1915. I will consider a
request to have the court pay the costs of depositions only if I am
satisfied that the request is reasonable. See Burgess v. Andrews,
657 F. Supp. 1153, 1157 (W.D. N.C. 1987). The plaintiff fails to
demonstrate that he is unable to obtain relevant and necessary
information through written discovery. The Motion for
Depositions is denied.
The plaintiff seeks reconsideration of my order. The bases for granting reconsideration
are extremely limited:
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
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previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the
controlling law. It is not appropriate to revisit issues
already addressed or advance arguments that could have
been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted).
In the alternative, the plaintiff’s motion can be construed as a motion for relief from an
order under Fed. R. Civ. P. 60(b). Rule 60(b) relief requires a showing of exceptional
circumstances warranting relief from a judgment or order. Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991). A litigant shows exceptional circumstances by satisfying one or
more of the grounds for relief enumerated in Rule 60(b). Id. at 1243-44.
The plaintiff does not satisfy any of the grounds for relief enumerated in Servants of the
Paraclete or Rule 60(b). Moreover, despite my order, he does not explain why the testimony is
necessary or relevant to his claims, or why he cannot obtain the information through written
discovery. The First Motion to Reconsider is an inappropriate attempt to reargue an issue
previously addressed by the court, and it is denied.
Motion for Production
The plaintiff requests that the court provide to him, and pay for, a transcript of the
Scheduling Conference held on July 23, 2013. He does not cite any competent authority for his
request, nor does he explain in any detail why the transcript is necessary. The Motion for
Production is denied.
Second Motion for Reconsideration

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On January 24, 2014, the plaintiff filed a motion [Doc. #117] requesting that the United
States Marshal be ordered to serve a subpoena on the Office of Inspector General and the BOP
Office of Internal Affairs for “production of all records of allegations of retaliation or staff
misconduct by any named defendants in this action, investigations there into, and conclusions
thereof, since the year 2011.” I denied the plaintiff’s motion [Doc. #122] because “[t]he
information sought by the plaintiff is not relevant to his claims.”
As with the First Motion for Reconsideration, the plaintiff does not satisfy any of the
grounds for relief enumerated in Servants of the Paraclete or Rule 60(b). The Second Motion to
Reconsider is inappropriate and is denied.
Motion to File a Reply and Motion for Extension of Time
The plaintiff requests leave to file a reply in support of his motions to reconsider, and he
requests a seven day extension of time to file the reply. Those requests are granted.
IT IS ORDERED:
(1) The plaintiff’s Motion to Reconsider Motion for Order Permitting Depositions of
Witnesses [Doc. #124] is DENIED;
(2) The plaintiff’s Motion for Production to Produce a Copy of the Scheduling
Conference Transcripts from (Doc. 54) [Doc. #128] is DENIED;
(3) The plaintiff’s Motion to Reconsider Motion for Subpoena and Service by U.S.
Marshal [Doc. #132] is DENIED;
(4) Plaintiff’s Motion for Leave to Answer Defendants’ Response [Doc. #139] is
GRANTED; and

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(5) The plaintiff’s Motion for 7-Day Extension of Time to File a Reply [Doc. #141] is
GRANTED.
Dated April 2, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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