Martinez v. Health Care Partners Foundation Inc.

Filing 47

MINUTE ORDER; 29 First Stay Motion is DENIED as moot. 33 Discovery Motion is DENIED. 37 Motion to Revive is GRANTED. The Clerk of the Court is instructed to REVIVE the Motion to Dismiss 7 , the Response 15 ,and the Reply 22 as of the date of this Order. 45 Second Stay Motion is DENIED, by Magistrate Judge Kristen L. Mix on 7/2/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02399-RM-KLM
MICHAEL ANGELO MARTINEZ,
Plaintiff,
v.
HEALTH CARE PARTNERS FOUNDATION, INC.,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion Requesting a 30 Day Stay of
Litigation [#29]1 (the “First Stay Motion”), Plaintiff’s Motion for Subpoena of Medical
Records [#33] (the “Discovery Motion”), Defendant Health Care Partners & Employees’
Motion to Revive Motion to Dismiss (Doc. 7), Response (Doc 15[)], and Reply (Doc.
22) [#37] (the “Motion to Revive”), and Plaintiff Michael Martinez’[s] Motion Requesting
a 90 Day Stay of Litigation Concerning the Defendants[’] Revival Motion to Dismiss
[#45] (the “Second Motion to Stay”).
In the First Stay Motion, Plaintiff requested a 30-day stay because he did not have
access to the law library at the facility in which he was incarcerated at that time. Stay
Motion [#29] at 1. Plaintiff noted that he was “in the process of transition[ing] to a
permanent facility.” Id. On June 15, 2015, Plaintiff notified the Court of his new mailing
address at the Sterling Correctional Facility. See Written Notice of Address Change [#43]
at 1. As a result, the Stay Motion is moot.
In the Discovery Motion, Plaintiff requests that the Court issue a subpoena to an
unidentified party, likely Defendant, regarding medications he was prescribed, his medical
chart, and interactions with medical staff. Discovery Motion [#33] at 1. As an initial matter,
if Plaintiff seeks discovery from Defendant, a subpoena is not needed. See Fed. R. Civ.
P. 26. Further, as Defendant explains in its Response [#42] to the Discovery Motion,

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“[#29]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

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pursuant to Fed. R. Civ. P. 26(d), “[a] party may not seek discovery from any source before
the parties have conferred as required by Rule 26(f).” Response [#42] at 1. However, the
Rule goes on to note that it does not apply to “proceedings exempted from initial disclosure
under Rule 26(a)(1)(B) . . . .” Fed. R. Civ. P. 26(d). This case is exempt under Fed. R. Civ.
P. 26(a)(1)(B)(iv) because it is “an action brought without an attorney by a person in the
custody of the United States, a state, or a state subdivision.” Fed. R. Civ. P.
26(a)(1)(B)(iv). Therefore, Plaintiff may serve Requests for Production of Documents on
Defendant pursuant to Fed. R. Civ. P. 34 without seeking a Court order. See Young v.
Tryon, No. 12-CV-6251-CJS-MWP, 2013 WL 2471543, at *10 (W.D.N.Y. June 7, 2013)
(finding good cause to stay defendants’ deadline to respond to discovery requests from pro
se plaintiff); Podkulski v. Doe, No. 11-cv-102-JL, 2012 WL 1587063, at *1 (D. N.H. May 3,
2012) (noting that Fed. R. Civ. P. 26(d)(1) “permits the parties in this case to engage in
discovery before meeting to agree upon a discovery plan” because the plaintiff was a pro
se inmate). As a result, the Court will deny the Discovery Motion.
In the Motion to Revive, Defendant asks the Court to revive its Motion to Dismiss
[#7], which was denied without prejudice when the Court stayed this case. See Order [#28]
at 4-5. In that Order, the Court noted that
[o]nce the stay is lifted, the parties may ask the Court to revive the pending
Motion to Dismiss [#7], pending Response [#15], and pending Reply [#22].
If Plaintiff obtains counsel, Plaintiff may ask permission to file a new
response to the revised Motion to Dismiss.
Id. at 4-5. Plaintiff filed the Second Stay Motion in response to the Motion to Revive. In the
Second Stay Motion, Plaintiff requests “a 90 day stay of litigation concerning the
Defendants[’] revival motion to dismiss . . . .” Second Motion to Stay [#45] at 1. Plaintiff
notes that he
is imprisoned at Sterling Correctional Facility and it is impossible to gauge the
schedule of SCF law library access as the facility is constantly on lock down
and court access is suspended. Plaintiff is without legal counsel and the
claims raised are complicated and require research in order to perfect the
complaint.
Second Stay Motion [#45] at 1. However, the Motion to Dismiss [#7] was fully briefed by
the parties as of October 29, 2014, when the Reply [#22] was filed. Further, Plaintiff filed
his Response [#15] to the Motion to Dismiss on October 15, 2014. Therefore, there are no
legal issues for Plaintiff to research with regard to the Motion to Dismiss. To the extent that
the Second Motion to Stay references “perfect[ing] the complaint,” if Plaintiff would like to
amend his Complaint [#4] he must file a motion requesting that relief and must attach a
proposed amended complaint to that motion. Furthermore, the Motion to Dismiss [#7] was
filed on September 5, 2014; the case was stayed on January 9, 2015 [#28]; and the stay
automatically lifted on May 8, 2015 [#28]. Therefore, Plaintiff had more than four months
in which to seek leave to amend his claims based on the arguments asserted by Defendant
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in the Motion to Dismiss prior to the imposition of the stay, and more than seven additional
weeks after the stay was lifted and prior to the filing of the Second Stay Motion in which to
seek leave to amend his claims. However, he has not sought leave to amend in this case.
Instead, he filed his Response [#15] to the Motion to Dismiss. This case must proceed.
Accordingly, the Court will grant the Motion to Revive [#37] and deny the Second Stay
Motion [#45].
Accordingly,
IT IS HEREBY ORDERED that the First Stay Motion [#29] is DENIED as moot.
IT IS FURTHER ORDERED that the Discovery Motion [#33] is DENIED.
IT IS FURTHER ORDERED that the Motion to Revive [#37] is GRANTED. The
Clerk of the Court is instructed to REVIVE the Motion to Dismiss [#7], the Response [#15],
and the Reply [#22] as of the date of this Order.
IT IS FURTHER ORDERED that the Second Stay Motion [#45] is DENIED.
Dated: July 2, 2015

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