Glapion v. Donovan

Filing 129

MINUTE ORDER STRIKING Plaintiff's 126 Brief in Opposition the Motion for Summary Judgment by Magistrate Judge Michael E. Hegarty on 7/8/2015. The Court orders Plaintiff to file a new response by 8/3/2015. The Court VACATES the Final Pretrial Conference scheduled for 7/23/2015 and the jury trial scheduled for the week of 8/24/2015. Finally, the Court denies as moot 128 Motion for Leave to Conduct Preservation Deposition. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01699-MEH
MELEAHA R. GLAPION,
Plaintiff,
v.
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development,
Defendant.
______________________________________________________________________________
MINUTE ORDER
______________________________________________________________________________
Entered by Michael E. Hegarty, United States Magistrate Judge, on July 8, 2015.
Before the Court are Defendant’s two Motions for Summary Judgment [dockets ## 106,
108].
The Court struck Plaintiff’s initial response, noting it totaled more than 500 pages of meandering,
repetitive argument and unnecessary prose. See docket #121. The Court ordered Plaintiff to revise
and re-file her brief and provided the following instruction:
A response brief [] should be exactly that: a response to the arguments in the motion
at hand. As such, it should not require more space than the number of pages in the
motion and should aspire to refute the motion in a crisp, organized manner. What
is a response brief not? It is not a forum for voluminous recitation of the initial
complaint.
Plaintiff proceeded to file a new Response (see docket #126), which the Court has now
reviewed. The Court finds that this Response, while shorter as ordered, is plagued by possibly more
problems than the first and fails to adhere to the above instructions.
In the current Response, Plaintiff fails to address directly any of Defendant’s more than 300
statements of undisputed facts. See docket #126. She instead via footnote indicates that she does
not need to respond to the statements of fact but improperly directs the Court to use her answers in
the stricken response (in which she did respond to each enumerated fact albeit with excessive
verbiage and insufficient cites to the record; see docket #111 at 112-98). She then spends 80 pages
essentially reiterating her Complaint, leaving the Court with practically no ability to determine
whether there are remaining disputed material facts.
Plaintiff also fails to cite appropriately. The current Response cites to a vast array of
materials, but usually in nonsensical ways, pointing to documents not before the Court or through

which the Court would have to comb extensively to find relevant information. For example:
“Written within page 7 of 28 of Plaintiff’s March 20, 2012 removal reply attached to March 10,
2012 motion to amend and for injunctive relief provided to the EEOC and MSPB.” Docket #126 at
4. Another: “See Complaint’s Opposition to Agency’s Motion for Summary Judgment Exhibits CD
Disk I (BB) SLRP (96 pages).” Id. at 8. At times she cites back to other parts of the record but to
lengthy documents and provides no page cites. See, e.g., docket #126 at 11 (citing generally to her
deposition). A vast amount of the time there are no cites at all. See, e.g., docket #126 at 16-19, 6465.
Plaintiff further cites to exhibits she has created that are filled with inadmissible statements
and no citations to evidence in the Court’s record. For example, she refers to “Doc. 117-4,” a 36page table of comments Plaintiff indicates prove bias but that has conclusory argument, not
admissible evidence. See docket #117-4.
A party has four options under Fed. R. Civ. P. 56(c) to dispute a fact: (1) cite to record
evidence contradicting the fact; (2) show that the cited evidence does not establish the presence or
absence of a genuine dispute; (3) show that the adverse party cannot produce admissible evidence
to support the fact; or (4) object that the fact is not supported by admissible evidence. Facts offered
to dispute a defendant’s statements of fact must be supported by “particular parts of material in the
record.” Fed. R. Civ. P. 56(c)(1)(A).
When a party fails to respond appropriately, the court has discretion to proceed using the
moving party’s facts as true. Fed. R. Civ. P. 56(e). While a pro se litigant’s pleadings are to be
construed liberally and held to a less stringent standard than those by lawyers, Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991), the Tenth Circuit has “repeatedly insisted that pro se parties
follow the same rules of procedure that govern other litigants.” Neilsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (internal quotation marks omitted).
Importantly, the Tenth Circuit has clearly directed that the Court is under no obligation to
advance a plaintiff’s case for her. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1246-47
(10th Cir. 2003). The Tenth Circuit has explained even more explicitly:
To withstand a motion for summary judgment, the nonmovant must do more than
refer to allegations []contained in a brief. Sufficient evidence pertinent to the
material issue must be identified by reference to an affidavit, a deposition transcript
or a specific exhibit incorporated therein. Without a specific reference, we will not
search the record in an effort to determine whether there exists dormant evidence
which might require submission of the case to a jury.
Gross v. Burggrat Const. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (internal citations and quotations
omitted). The Tenth Circuit went on to cite the Seventh Circuit’s oft-quoted admonishment of
improper responses: “Judges are not like pigs, hunting for truffles buried in briefs.” Id.
Therefore, once again, pursuant to D.C. Colo. LCivR 7.1(i), the Court strikes the Plaintiff’s
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Response to the pending motion (see docket #126). The Court orders Plaintiff to file a new
Response by August 3, 2015, in exactly the following manner:
1) Respond: Provide an answer to each of the enumerated facts asserted by
Defendant (utilizing the four options described above regarding Fed. R. Civ. P.
56(c)).
2) Cite: Provide a citation to the record for each answer. Each citation must include
an exhibit number, page number, and line item(s) to which Plaintiff directs the Court.
The cite must point directly to the relevant portion, not the document generally.
Further, the Court will only consider citations that point to admissible evidence in
the record before this Court. Should Plaintiff cite to information not before this
Court, the Court will not consider it and will not grant additional leave to amend.
3) Organize: Order the Response in the exact manner presented by Defendant in the
Motions. The Court will not sift through pages to find responses that are scattered
throughout the document.
4) Be brief: Do not include extraneous information; instead respond. Plaintiff’s
Response may not exceed 80 pages.
Furthermore, because of the highly disorganized and voluminous filing of exhibits in this
case, the Court also orders Plaintiff, in addition to filing her new Response and exhibits
electronically, to deliver paper copies of her Response and the relevant portions of all exhibits to
which she cites, in the order in which they are referred in the Response – one full copy to the Court
and one full copy to Defendant. Plaintiff must file and send the materials by August 3, 2015.
Defendant may have 17 days beyond receipt of this mailing to file his Reply.
The Court warns Plaintiff that any deviation from this Order will result in the Court
adopting Defendant’s version of the facts as true in the consideration of the pending Motions.
Additionally, in light of the above Order, the Court vacates the Final Pretrial Conference
previously scheduled for July 23, 2015, at 1:30 p.m. The Court also vacates the Jury Trial
previously scheduled for the week of August 24, 2015. Finally, the Court denies as moot
Defendant’s Motion for Leave to Conduct Preservation Deposition [filed July 8, 2015; docket #128]
as the Motion involves a witness scheduled to be traveling during the dates of the now-vacated trial.
At a later date, the Court will reset the Final Pretrial Conference and Jury Trial as appropriate.

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