Sutton et al v. Van Leeuwen et al
ORDER: Denying as moot 162 Motion to Compel. Withdrawing 163 Motion for Order. Granting 167 Motion for Protective Order. Denying 170 Motion to Quash. Denying as moot 173 Motion for Order. Granting in part and denying in part 175 Motion for Sanctions. Granting 176 Motion for Extension of Time. Scheduling Order 69 is amended. Discovery cut-off extended to 4/27/2016 for sole purpose of deposing Defendants. Denying 179 Motion for Sanctions. Denying as moot 187 Motion to Clarify. All other requests for sanctions - including Defendants' request for attorneys' fees for responding to these motions - are denied. By Magistrate Judge Michael J. Watanabe on 3/30/2016.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02379-RM-MJW
JOSHUA LAMONT SUTTON,
MATTHEW VAN LEEUWEN,
ANTHONY RODERICK, and
Michael J. Watanabe
United States Magistrate Judge
This case has seen a lot of activity in the past six weeks. There are now nine
discovery motions pending, with the briefing on those motions in various stages of
completion. Notwithstanding the partially incomplete briefing, the Court will resolve all
nine motions with this omnibus order—before this case gets any further out of control.
The parties generally agree on the following facts. Plaintiff and his then-wife
were stopped by police as they were walking home from the hospital. Plaintiff’s
behavior during the stop resulted in a disorderly-conduct arrest and conviction. While
he was in detention following that arrest, he was involved in a physical altercation with
an officer—for which he was charged with assault, and later convicted of obstructing an
officer. While he was in jail for these offenses, he was placed in solitary confinement for
seven months and denied certain dietary requests.
Plaintiff sues over a host of alleged constitutional violations in this sequence of
events. Following summary screening under 28 U.S.C. §§ 1915(e) & 1915A, this case
currently includes claims that Plaintiff was unlawfully stopped due to invidious
discrimination; unlawfully arrested; subjected to an unlawfully prolonged detention,
following arrest; maliciously prosecuted for assaulting an officer while in custody; and
held in inadequate conditions of confinement. (See Docket No. 31.)
Two Defendants filed Answers. (Docket Nos. 60 & 106.) The other two
Defendants filed motions to dismiss. (Docket Nos. 59 & 62.) Plaintiff has filed two
motions for leave to amend his complaint. (Docket Nos. 77 & 112.) The undersigned
has issued reports and recommendations on these Rule 12(b) and 15(a) motions; the
reports are currently pending before District Judge Raymond P. Moore. (Docket Nos.
74, 103, & 123.) In the aggregate, the reports recommend that:
Plaintiff’s unlawful-stop claims be rejected;
Plaintiff’s unlawful-arrest claims be rejected;
Plaintiff’s unlawfully-prolonged-detention claims be rejected;
Plaintiff’s malicious-prosecution claims be rejected;
Plaintiff’s excessive-bail claims be rejected; and
Plaintiff’s excessive-force claim be allowed.
As a result of the foregoing, this case includes (1) conditions-of-confinement claims
against the Defendants who filed answers; (2) an excessive-force claim that is not yet
part of the case, but will be if Judge Moore adopts the undersigned’s recommendations;
and (3) miscellaneous other claims that are currently part of the case, but will no longer
be if Judge Moore adopts the undersigned’s recommendations.
As noted, there are nine motions pending.
On February 22, 2016, Plaintiff filed notice of three subpoenas that he intended
to serve by mail. (Docket No. 161.) The third subpoena is directed to various Pueblo
County judicial officials, demanding transcripts and recordings of all court proceedings
related to Plaintiff’s obstructing-an-officer conviction. (Id. at 8-10.) On March 3, 2016,
the Pueblo County officials filed a motion to quash their subpoena. (Docket No. 170.)
They argue that a subpoena for publicly available records is improper, since Plaintiff can
simply request the documents through ordinary channels; that they do not have audio
recordings in the first place; and that the subpoena lacked proper service. Plaintiff’s
response (Docket No. 188) argues that service was proper and asserts that the Pueblo
County officials do in fact have audio recordings—because such recordings have been
produced in other proceedings.
The Pueblo County officials have not cited any relevant legal standards as to
their public-records argument. They cite Bogosian v. Woloohojian Realty Corp., 323
F.3d 55, 66 (1st Cir. 2003), for the general standard in quashing subpoenas, but the
quoted language was not about quashing subpoenas in general. Rather, it dealt with
the unique standards that apply when attempting to subpoena opposing counsel. The
case has no relevance to this discussion. Past that, the Pueblo County officials cite two
district-court cases that purportedly dealt with attempts to subpoena publicly available
records. One of those cases concerned a subpoena for records from a third party, when
those records were already in the court’s own files in the case docket—rendering a
third-party subpoena entirely unnecessary. Med. Billing, Inc. v. Med. Mgmt. Scis., Inc.,
169 F.R.D. 325, 332 (N.D. Ohio 1996). The case could not possibly be relevant here.
Next, the Pueblo County officials cited an unpublished opinion out the Eastern District of
California, captioned Taylor v. O'Hanneson. They did not provide a copy of the opinion
as required by the local rules. D.C.COLO.LCivR 7.1(e). The Court has attempted to
find the case in Westlaw, and has come up with an opinion standing for the exact
opposite proposition as the one asserted by the Pueblo County officials. See Taylor v.
O'Hanneson, No. 1:11-CV-00538-LJO, 2014 WL 2696585, at *4 (E.D. Cal. June 13,
2014) (“Plaintiff may seek a copy of the criminal transcripts by way of subpoena to a
third party or application to the appropriate court for such copy.”). These cases offer no
Federal Rule of Civil Procedure 45(d)(3) governs quashing subpoenas. This rule
is not cited anywhere in the Pueblo County officials’ argument. It might well be the case
that this subpoena imposes an undue burden and should be quashed under Fed. R.
Civ. P. 45(d)(3)(A)(iv), because the Pueblo County Courts have an administrative
system in place for providing records like the ones Plaintiff requests. See, e.g., In re
Motion to Compel Compliance with Subpoena Direct to Dep't of Veterans Affairs, 257
F.R.D. 12, 19 (D.D.C. 2009) (“[E]ven modifying the subpoena to seek this limited
information is unduly burdensome because of the absence of any showing that the
information sought is not available from other sources”). But the Pueblo County officials
haven’t made that argument. Neither the words “undue burden” nor any of the other
grounds for quashing a subpoena in Rule 45(d)(3) appear anywhere in the motion to
quash. As a result, no adequate grounds have been presented for quashing this
The Pueblo County officials are also incorrect about methods of service. See
E.A. Renfroe & Co., Inc. v. Moran, 2008 WL 1806200, at *6 (D. Colo. Apr. 21, 2008)
(Watanabe, M.J.) (distinguishing Windsor v. Martindale, 175 F.R.D. 665 (D. Colo.
1997)). In this context, because the subpoenaed parties have adequate notice to move
to quash, the Court finds that service was adequate.
As to whether the audio recordings exist in the first place, the proper course of
action is for the Pueblo County to assert the matter in their response to the subpoena.
The Pueblo County officials’ motion is denied.
Defendants’ Initial Disclosures
Also on February 22, 2016, Plaintiff filed a motion to compel Defendants to
supplement their initial disclosures. (Docket No. 162.) Specifically, Plaintiff contends
that Defendants issued a supplemental disclosure identifying documents Batesstamped Cnty. Defs. 001044-001212, but did not produce the actual Bates-stamped
documents. (Id.) Defendants’ response to this motion states that the documents had
been produced on CD-ROM, and would shortly be produced on hard-copy as a result of
Plaintiff’s motion. (Docket No. 165.) This motion appears to be moot.
Defendants’ Discovery Responses
On February 22, 2016, Plaintiff filed a motion to review the sufficiency of
Defendants’ admission responses under Fed. R. Civ. P. 36(a)(6). (Docket No. 163.)
Plaintiff’s motion describes neither the purported deficiencies in the admission
responses, as required by D.C.COLO.LCivR 37.1, nor any attempt to confer with
Defendants regarding such deficiencies, as required by Fed. R. Civ. P. 37(a)(1). (Id.)
In response to this motion, Defendants point out the lack of any explanation as to what,
specifically, is objectionable. (Docket No. 181.) In reply, Plaintiff withdrew the motion.
(Docket No. 192.)
On March 9, 2016, Plaintiff moved for sanctions against Defendants. (Docket
No. 175.) Plaintiff argues that he has repeatedly requested (1) video recordings of his
arrest; (2) color photographs of his injuries following his jail-cell altercation; and (3)
copies of all grievances or complaints filed against Defendants—all to no avail. Plaintiff
also references Defendant’s failure to attend the depositions he attempted to set for
them (see infra). In response (Docket No. 190), Defendants assert that (1) they’ve
produced all the videos they are aware of; (2) Plaintiff has never requested color
photos; and (3) they’ve produced all of Plaintiff’s grievances and complaints. Taking
these matters in turn:
As to the video, it is the Court’s understanding that Plaintiff seeks video of his
arrest, not of his altercation with Defendant Gowin. Accordingly, Defendants
are hereby ordered to serve a supplemental discovery response either
providing such a video or certifying that they do not have possession,
custody, or control of such a video. Plaintiff’s motion is granted to that extent
and is otherwise denied on this issue.
As to the color photos, the Court accepts Defendant’s representation and
denies Plaintiff’s motion on this issue.
As to the grievances, Plaintiff’s motion does not appear to be limited to
grievances or complaints filed by Plaintiff. That said, there is no pattern-orpractice claim at issue in this lawsuit, nor can such evidence be relevant to
any of Plaintiff’s claims. Accordingly, the Court denies Plaintiff’s motion on
As to the depositions, as explained infra, the deposition notices are quashed.
The Court denies Plaintiff’s motion on this issue.
Thus, the Court grants in part and denies in part the motion at Docket No. 175.
On March 10, 2016, Plaintiff filed a different motion for sanctions. (Docket No.
179.) Plaintiff here identifies specific answers to specific interrogatories/requests for
documents that he believes to be inadequate—the answers to Interrogatories 1, 5, 7,
10, 12, and 13 (see Docket No. 135)—and offers specific reasons why he finds them
inadequate. Defendants have not yet filed a response to this motion. However, the
Court has reviewed the purportedly deficient responses and finds as follows:
Request 1 asked Defendants to state their duties at the Pueblo Sheriff’s
office. (Docket No. 135.) Defendants each responded that they no longer
work at the Sheriff’s office. (E.g., Docket No. 179-1, p.4.) Plaintiff faults
these responses for not explaining why Defendants no longer work at the
Sheriff’s office. (Docket No. 179, p.2.) Plaintiff did not ask that question, and
the responses are therefore not deficient.
Request 5 asked Defendants to state the procedures in effect for “four hour
(municipal police) holds when any person is placed in the Sheriff’s jail on a
four hour hold.” (Docket No. 135.) One Defendant responded: “We were told
that police holds were a minimum of four hours. The detainees were put in
line for release based upon when they were brought into the facility.”
(Docket No. 179-1, p.5.) Plaintiff faults this response for not identifying who
“we” refers to, nor who did the telling. But again: Plaintiff did not ask for this
information. He asked for procedures, not identities. The responses are
therefore not deficient.
Request 7 asked about booking procedures. (Docket No. 135.) Defendants
denied being involved in booking or being aware of the booking procedures.
(E.g., Docket No. 179-1, p.5.) Plaintiff faults these responses for being
evasive. But Plaintiff offers no basis for believing that the responses are less
than fully honest, and the responses are therefore not deficient.
Request 10 asked for electronically stored information including telephone
logs. (Docket No. 135.) The responses state that all known recordings have
been produced and that telephone calls are not recorded. (E.g., Docket No.
179-1, p.7.) The Court finds that the responses are incomplete. The
responses assume that Plaintiff seeks telephone recordings, where his
requests ask for telephone records—including, for example, call logs.
However, such information is relevant only to unlawful-stop claims that the
undersigned has recommended be dismissed. Plaintiff’s motion on this point
is thus denied without prejudice, and may be renewed if Judge Moore
declines to adopt relevant portions of the reports and recommendations.
Request 12 asks for grievances and complaints filed against Defendants.
(Docket No. 135.) As discussed supra, such records are not relevant.
Request 13 asks Defendants to identify and produce “all hearing(s),
witness(es), . . . and exhibit(s) filed at any of the hearing(s) (regarding myself,
Joshua Sutton).” (Docket No. 135.) The Defendants all denied having
responsive materials. (E.g., Docket No. 179-1, p.7.) The Court finds that
these responses are likely incomplete, inasmuch as it seems probable that
Defendant Gowin (at least) must have appeared at some hearing related to
Plaintiff’s charges. However, such information is relevant only to maliciousprosecution claims that the undersigned has recommended be dismissed.
Plaintiff’s motion on this point is thus denied without prejudice, and may be
renewed if Judge Moore declines to adopt relevant portions of the reports and
For the foregoing reasons, the Court denies the motion at Docket No. 179.
On February 23, 2016, Plaintiff filed a notice that (1) Defendants had noticed his
deposition for March 1, 2016; and (2) Plaintiff had accordingly noticed the deposition of
Defendants Gowin, Roderick, and LePage for the same date, time, and place as his
own deposition. (Docket No. 164.)
On February 26, 2016, Defendants filed a motion to quash the deposition
subpoenas for Defendants Gowin, Roderick, and LePage. (Docket No. 167.)
Defendants argue that Plaintiff did not comply with the timing or conferral requirements
under D.C.COLO.LCivR 30.1. Defendants also argue that, although Plaintiff’s
correctional facility is a reasonable place to depose Plaintiff, it is a 250-mile round-trip
drive from where Defendants work and live. Further, Defendants argue that Plaintiff
noticed these depositions with subpoena forms that were not signed by an attorney or
the clerk of court and are thus invalid under Fed. R. Civ. P. 45. Plaintiff’s response to
this motion (Docket No. 173) argues that holding the depositions at the same time
would be convenient and cost-effective. The response also requests a status
conference to discuss the matter with the Court. (See Docket No. 173.) In reply,
Defendants argue that no status conference is necessary and note that Plaintiff has not
previously expressed any interest in deposing Defendants. (Docket No. 183.)
Defendants are correct that Plaintiff has not complied with the rules for
scheduling depositions. See Fed. R. Civ. P. 30(b); D.C.COLO.LCivR 30.1 (“Unless
otherwise ordered by the court, reasonable notice for taking a deposition shall be not
less than 14 days, as computed under Fed. R. Civ. P. 6. Before sending a notice to
take a deposition, counsel or the unrepresented party seeking the deposition shall make
a good faith effort to schedule it in a convenient and cost effective manner.”). The Court
grants Defendants’ motion quashes the subpoenas. Plaintiff may attempt to notice the
depositions anew, so long as he complies with Fed. R. Civ. P. 28 through 32, Fed. R.
Civ. P. 45, and D.C.COLO.LCivR 30.1.
Also on March 9, 2016, Plaintiff moved for an extension of time, due to a
snowstorm that delayed another trial of Plaintiff’s. (Docket No. 176.) The purpose of
the extension is to depose Defendants. Defendants object, arguing that Plaintiff has
had plenty of time to take depositions. (Docket No. 191.) The Court grants the motion
at Docket No. 176.
On March 25, 2016, Plaintiff filed a “Motion to Clarify Due to Unorthodox
Transcript.” (Docket No. 187.) The document does not appear to request any relief
from the Court. It recites rules related to a deponent’s review of a deposition transcript
under Fed. R. Civ. P. 30(e), and moves the Court to “clarify,” but makes no other
assertion as to what is sought. Without a request for relief, the motion at Docket No.
187 is moot.
For the foregoing reasons, it is hereby ORDERED that:
Docket No. 162 is DENIED AS MOOT;
Docket No. 163 is WITHDRAWN;
Docket No. 167 is GRANTED;
Docket No. 170 is DENIED;
Docket No. 173 is DENIED AS MOOT;
Docket No. 175 is GRANTED IN PART and DENIED IN PART, as set forth
Docket No. 176 is GRANTED and the Scheduling Order (Docket No. 69) is
AMENDED such that the discovery cut-off is extended to April 27, 2016 for
the sole purpose of deposing Defendants;
Docket No. 179 is DENIED;
Docket No. 187 is DENIED AS MOOT; and
All other requests for sanctions—including Defendants’ request for attorneys’
fees for responding to these motions—are denied as unjust under the
Date: March 30, 2016
s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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