Bruce v. Osagie et al

Filing 65

ORDER by Magistrate Judge Nina Y. Wang on 12/1/15 granting in part and denying in part 54 Motion to Compel; granting in part and denying in part 59 Motion for Order; granting in part and denying in part 61 Motion to Clarify. The Clerk of th e Court is DIRECTED to send a copy of the docket to Plaintiff along with a copy of the following documents [#42, #48]. The Clerk of the Court is further DIRECTED TO SERVE Defendant with a copy of the Motion for TRO/PI [#35] and the Order to Draw in P art and to Dismiss in Part [#42]. Defendant shall file a Response to the allegations contained in the Motion for TRO/PI [#35] at page 3, paragraph 4 on or before December 18, 2015 and no further extensions will be granted. Plaintiffs request for appo intment of counsel is DENIED without prejudice at this time as premature and duplicative of his previously denied motion for appointment of counsel, see [#3, #5]. A Status Conference is set for 12/30/2015 at 10:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. 9. The Clerk of the Court is instructed to send a copy of this Order to the following: CASE MANAGER FOR ANTOINE BRUCE #35363-007, FLORENCE ADMAX U.S. PENITENTIARY. PO BOX 8500, FLORENCE, CO 81226.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02068-RM-NYW
ANTOINE BRUCE,
Plaintiff,
v.
A. OSAGIE,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This civil action is before the court on the following motions:
1. Plaintiff Antoine Bruce’s Motion to Compel (“Motion to Compel”) [#54, filed November
13, 2015]1;
2. Plaintiff’s “Emergency Motion for Status of the Case, Docket Sheet of the Case, In
Conjunction With Motion of Court Appointed Counsel” (“Motion for Status”) [#59, filed
November 19, 2015]; and
3. Defendant Osagie’s “Motion to Clarify re [42] Order Reassigning Case, Terminate
Motions, Add and Terminate Parties” (“Motion to Clarify”) [#61, filed November 30,
2015].

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The court uses the convention [#__] to refer to docket entries on the Electronic Court Filing
(“ECF”) system in this action. Where the court refers to the ECF docket entries on related
matters, the court uses “ECF No. ___.”

These matters are before this Magistrate Judge pursuant to the Order Referring Case
dated July 6, 2015 [#43] and the memoranda dated November 13, 2015 [#55], November 20,
2015 [#60], and December 1, 2015 [#62].
Plaintiff Antoine Bruce is in the custody of the Federal Bureau of Prisons, and he is
currently incarcerated at the United States Penitentiary in Florence, Colorado. Plaintiff initiated
this action by filing pro se a Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915. The history of this action is well known to the court
and the Parties, is succinctly delineated in previous court orders, see, e.g., [#42], and for
purposes of brevity will not be recounted here except as it pertains to the pending motions that
are the subject of this Order.
Section 1915 and the Local Rules of this District require a court to evaluate a prisoner
complaint and dismiss sua sponte an action at any time if the action is frivolous, malicious, or
seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B); D.C.COLO.LCivR 8.1(b). Pursuant to such review, on July 6, 2015, the court
issued an Order to Draw In Part and to Dismiss In Part, dismissing all defendants except for
Defendant Osagie and dismissing all claims asserted by Plaintiff except for the claim construed
in Plaintiff’s Motion for a Temporary Restraining Order and/or Preliminary Injunction (“Motion
for TRO/PI”) [#35], regarding the excessive swelling in his ankles and feet. [#42]. The case was
then reassigned to the Honorable Raymond P. Moore and the undersigned Magistrate Judge. Id.
On July 14, 2015, the Clerk of the Court served Plaintiff’s last-filed pleading, the Second
Amended Complaint [#30], but did not serve the Motion for TRO/PI or the Order to Draw in Part

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and to Dismiss In Part on Defendant Osagie. [#44; see also #45, #46].2 On September 9, 2015,
Defendant Osagie, through his counsel, requested an extension of time to respond to the Second
Amended Complaint [#48], which this court granted [#50]. On November 13, 2015, Defendant
Osagie, through his counsel, requested a second extension of time to respond to the Second
Amended Complaint [#56], which this court granted in part, ordering that Defendant respond on
or before December 1, 2015. [#58]. Also on November 13, 2015, Plaintiff filed the pending
Motion to Compel, stating that Defendant had not served him with a copy of the first motion for
extension of time to respond to the Second Amended Complaint, asking for a status of this case,
and asking for a copy of the docket sheet. [#54].
Mr. Bruce is awaiting a competency evaluation in an unrelated criminal matter pending
before another court in this District. See United States v. Bruce, 14-cr-00480-WYD (D. Colo.).
As a result of the forthcoming competency evaluation, this court stayed the proceedings in a
related civil matter. See Bruce v. Alvarez, 14-cv-3232-RM-NYW, ECF No. 47. On November
17, 2015, this court ordered Plaintiff to file notice on or before December 4, 2015 “should he
object to the court proceeding with the administration of this case prior to the outcome of a
competency hearing.” [#58].
On November 19, 2015, Plaintiff filed the pending Motion for Status, requesting an
update on the posture of this litigation and appearing to request that the court appoint counsel to
represent him. [#59]. On November 30, 2015, Defendant Osagie, through his counsel, filed the
pending Motion to Clarify, representing that counsel had inadvertently sought extensions of time
2

It appears from the docket entry that the Clerk intended to serve both the Second Amended
Complaint and the Order to Draw in Part and Dismiss In Part, but included only the pleading in
the service. [#44]. There is no indication that the Clerk attempted to serve the Motion for
TRO/PI as filed by Plaintiff. [#35, #44].
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to respond to the Second Amended Complaint without realizing that the sole surviving claim
originates from the Motion for TRO/PI and that the Second Amended Complaint is no longer an
operative pleading. [#61]. Defendant further represents that the Motion for TRO/PI was not
served on him, and requests that he have an extension up to and including December 18, 2015, to
respond to the allegations related to his failure to provide necessary medical attention to the
swelling in Plaintiff’s ankles and feet. Id.3
The court notes that counsel for Defendant has had access to the court’s ECF system and
the docket of this case since at least September 4, 2015, when counsel filed a Notice of
Appearance and subsequently filed two motions to extend his time to respond. In recognition,
however, that the Clerk inadvertently did not include the Order to Draw in Part and to Dismiss in
Part or the Motion for TRO/PI in its service on the United States, IT IS ORDERED:
1. Plaintiff’s Motion to Compel [#54] is GRANTED IN PART and DENIED IN PART;
2. Plaintiff’s Motion for Status [#59] is GRANTED IN PART and DENIED IN PART;
3. Defendant’s Motion to Clarify [#61] is GRANTED IN PART and DENIED IN PART;
4. The Clerk of the Court is DIRECTED to send a copy of the docket to Plaintiff along
with a copy of the following documents [#42, #48], and Defendant is reminded of his
obligation to serve Plaintiff with any filing submitted to the court;
5. The Clerk of the Court is further DIRECTED TO SERVE Defendant with a copy of the
Motion for TRO/PI [#35] and the Order to Draw in Part and to Dismiss in Part [#42];
6. Defendant shall file a Response to the allegations contained in the Motion for TRO/PI
[#35] at page 3, paragraph 4 on or before December 18, 2015 and no further extensions
will be granted;

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Defendant also asks for such relief prohibiting Plaintiff from filing additional motions without
the court’s permission in light of the § 1915 restrictions currently imposed, and that Defendant
not be required to respond to any motion unless the court so orders. [#61 at 4].
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7. Plaintiff’s request for appointment of counsel is DENIED without prejudice at this time
as premature and duplicative of his previously denied motion for appointment of counsel,
see [#3, #5];
8. A Status Conference to discuss the sole remaining claim is hereby set for December 30,
2015, at 10:00 a.m. in Courtroom C-204, 2d Floor, Byron G. Rogers United States
Courthouse, 1929 Stout Street, Denver, Colorado; Plaintiff and his case manager shall
contact the court at [phone] on the above date and at the designated time in
order to participate; and
9. The Clerk of the Court is instructed to send a copy of this Order to the following:
CASE MANAGER FOR
ANTOINE BRUCE #35363-007
FLORENCE ADMAX
U.S. PENITENTIARY
PO BOX 8500
FLORENCE, CO 81226

BY THE COURT:

DATED: December 1, 2015

s/Nina Y. Wang__________
United States Magistrate Judge

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