Wodiuk v. Graziano
Filing
475
ORDER Granting 418 Defendant's Rule 41(b) Motion to Dismiss. Denying all pending motions, "demands for relief," etc., filed by Plaintiff. Entered by Judge William J. Martinez on 4/6/2020. (afran)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-2931-WJM-SKC
HEIDI WODIUK,
Plaintiff,
v.
CAITLIN GRAZIANO, individually and in her official capacity with the Pueblo County
Sheriff’s Department,
Defendant.
ORDER GRANTING DEFENDANT’S RULE 41(b) MOTION TO DISMISS
This is a civil rights action under 42 U.S.C. § 1983. Plaintiff Heidi Wodiuk
(“Wodiuk”) sues Defendant Caitlin Graziano (“Graziano”) for excessive force in violation
of the Fourth Amendment.
This case was filed in October 2014. From then until now, it has generated a
mostly uninterrupted series of brush fires, giving off heavy smoke but hardly any heat
(much less light).
Currently before the Court is Graziano’s Third Motion to Dismiss for Failure to
Prosecute (“Rule 41(b) Motion”). (ECF No. 418.) For the reasons explained below, the
Court grants this motion and dismisses this case with prejudice.
I. BACKGROUND
A.
Proceedings While Wodiuk Was Represented by Mr. Viorst
1.
Nature of the Complaint
Wodiuk filed her original complaint—which remains the operative complaint—on
October 28, 2014. (ECF No. 1.) There, she alleges that Graziano, a Pueblo County
Sheriff’s Deputy, used excessive force when taking Wodiuk into custody on a mental
health hold in a Kohl’s parking lot on July 22, 2013. (Id. ¶¶ 8–11.)
2.
Mr. Viorst’s Motion to Withdraw
When the case was filed, Wodiuk was represented by an attorney, Mr. Anthony
Viorst. About eleven months later (September 16, 2015), Mr. Viorst moved to withdraw
due to “irreconcilable differences” with Wodiuk (“Motion to Withdraw”). (ECF No. 19
at 1.) The Court referred the Motion to Withdraw to the late U.S. Magistrate Judge
Craig B. Shaffer. (ECF No. 20.) Judge Shaffer set a telephonic hearing for October 8,
2015. (ECF No. 23.)
3.
Graziano’s Motion for Continued Deposition
On September 23, 2015, Graziano filed a Motion for Continued Deposition of
Plaintiff Heidi Wodiuk (“Motion for Continued Deposition”). (ECF No. 24.) Graziano
asserted that her counsel had deposed Wodiuk on June 4, 2015. (Id. at 1.) During the
deposition, Graziano’s counsel asked Wodiuk questions about the paternity of her child
because one reason Wodiuk’s family asked for a mental health hold was Wodiuk’s
recent claims that her child had been fathered by singer-songwriter and social activist
Michael Franti. (Id. at 4.) Graziano’s counsel deemed questions on this topic relevant
“as res gestae regarding the reason why Defendant was in contact with Plaintiff in the
first place,” and because the matter “goes to Plaintiff’s overall credibility . . . as
Mr. Franti denies ever meeting Plaintiff, and many things in Plaintiff’s life seem to focus
on her ‘relationship’ with Mr. Franti.” (Id.) However, as to these questions, Mr. Viorst
instructed Wodiuk “to answer ‘yes or no’, without giving details.” (Id. at 3.)
In addition, Graziano’s counsel attempted to question Wodiuk about rental
2
properties she claims to own. Wodiuk was “apparently claiming lost income and
increased maintenance expenses on her many rental properties as a result of the
alleged injuries which came from the incident with Defendant.” (Id.) Wodiuk also claims
to have recently transferred an ownership interest to Franti, allegedly for “mutual
‘protection of assets’.” (Id. at 3, 5.) Graziano’s counsel pursued this line of questioning
because he deemed it relevant to damages (e.g., if Franti indeed owns a share in these
rental properties, Wodiuk’s damages in this regard may need to be reduced
proportionally) and to credibility (if Franti does not own any shares in the rental
properties). (Id. at 4–5.) Wodiuk, however, refused to answer most of these questions,
purportedly on the advice of a different attorney. (Id. at 3.) Wodiuk said “there were
potential criminal charges pending regarding the alleged transfer of the properties,” and
so she wanted her other attorney present. (Id.)
Graziano therefore requested leave to reopen Wodiuk’s deposition to obtain
answers on these topics. (Id. at 5–6.) The Court referred the motion to Judge Shaffer.
(ECF No. 25.)
4.
Wodiuk’s Accusations Against Mr. Viorst
On October 6, 2015—two days before the hearing on the Motion to Withdraw—
the Court received a filing from Wodiuk herself. (ECF No. 27.) The caption on the filing
is as follows: 1
Notice: Plaintiff, notice is to notify the U.S. District Court of
attorney failure to comply to federal court laws to do a proper
investigation and to notify the courts of Tony Viorst extreme
misconduct in deciving the plaintiff in this case and its
1
This and all other quotations from Wodiuk’s filings is verbatim, including spelling and
grammatical errors, although the Court applies normal capitalization to passages that Wodiuk
originally wrote in all-caps.
3
contents investigated, which were never done as required.
(Id. at 1.) In the letter, Wodiuk consistently referred to herself as “Dr. Wodiuk” and
described herself as “a medical doctor.” (Id.) 2 Describing the case in her own words,
Wodiuk said that it began with
the grand treason to kidnapping of Dr. Wodiuk’s daughter
. . . on 7-22-2013 to be the bases of the 7-22-2013
groundless, unjustified . . . mental health hold . . . as the
premeditated organized crime contrived before arresting
Dr. Wodiuk and using excessive force to try to establish
Dr. Wodiuk to be a danger.
(Id. at 1–2.) The letter then complained of various aspects of the incident that Mr. Viorst
had purportedly failed to investigate. (Id.) Wodiuk asked for “involvement to federal
agents at FBI can investigate,” apparently meaning she wanted the FBI to investigate
Mr. Viorst’s alleged misconduct. (Id. at 1.)
5.
Judge Shaffer’s Rulings
Judge Shaffer held a hearing on the Motion to Withdraw on October 8, 2015, as
planned. (ECF No. 29.) Wodiuk did not object to Mr. Viorst’s withdrawal, so Judge
Shaffer granted that motion and instructed Wodiuk that “she is pro se and is responsible
for meeting all deadlines and attending all hearings” until she can find replacement
counsel. (Id. at 1.)
At the same hearing, Judge Shaffer granted Graziano’s Motion for Continued
Deposition. (Id. at 1.) However, Judge Shaffer stayed all discovery pending a
November 10, 2015 hearing “to discuss the status of Ms. Wodiuk finding replacement
counsel.” (Id. at 2.)
2
According to the Colorado Department of Regulatory Affairs license lookup tool
(https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx, last accessed Apr. 1,
2020) Wodiuk had an active acupuncture license at this time. The license expired at the end of
2015.
4
B.
Proceedings While Wodiuk Represented Herself
1.
Wodiuk’s First Wave of Motions
From October 14–28, 2015, Wodiuk submitted the following eight filings:
•
A motion for a Rule 35 physical and psychological examination of
Graziano “as to why the excessive force actions continue to be reported
and occur.” (ECF No. 31 at 2.)
•
A motion that her “Amendment 5 rights . . . be honored and protected in
this case” in light of “a groundless, meretricious, criminal case 15CR1287
in Pueblo Colorado.” (ECF No. 32 at 1.) Wodiuk provided no details
about the case. 3
•
A motion for a general protective order. (ECF No. 34.)
•
A “Motion for Witness Protection.” (ECF No. 36.) The Court sealed this
motion (i.e., Restricted Access, Level 3) because it contains personal
identifying information regarding the witness allegedly needing protection,
it describes some of the witness’s medical history, and it reports
potentially embarrassing accusations about the witness. The gist of the
motion, however, is that the Pueblo County Sheriff’s Department had been
stalking and harassing the witness. The motion does not say why Wodiuk
intended to call this person as a witness.
•
A motion to require that transcript fees “be waived” in the Pueblo court
3
Much later in the case, the Court would learn that the criminal case involved charges of
identity theft, forgery, and stalking, mostly arising out of Wodiuk’s obsession with Franti. (See
ECF No. 210 at 10–11.) According to the probable cause affidavit in that case, Wodiuk had,
among other things, forged Franti’s signature on deeds to various real properties that she owns.
(See Heidi Wodiuk v. The People of Colorado, Civil Action No. 17-cv-475-LTB (D. Colo., filed
Feb. 22. 2017), ECF No. 1 at 33.)
5
proceeding opened as a result of the mental health hold, and in the related
dependency/neglect proceeding regarding her child, because “this
material is vital to this case.” (ECF No. 39.)
•
“Motion for: federal protective for Plaintiff-Dr. Heidi Wodiuk as well as
motioned for federal intervention into the organized crimes conspired in
this case, the false reports filed to cover up the organized crime against
Dr. Wodiuk, as well as relief into Pueblo District Courts retaliatory judicial
harassment in the court system by filing and pressing cases willfully and
knowingly without merit or just cause[.] All judicial actions against Dr.
Woiukd are intently conspired to harm Dr. Wodiuk.” (ECF No. 40 at 1.)
•
A motion for a continued deposition of Graziano claiming that “attorney
Tony Viorst did not complete his deposition of the Defendant.” (ECF
No. 43.) The substance of the motion, however, shows that Wodiuk
believed she should be allowed to press Graziano further regarding
answers to questions that Wodiuk deemed vague or evasive. (Id. at 1–3.)
•
“Notice: Dr. Heidi Wodiuk holds an accredited doctorate degree and
therefore the record must respect and honor Dr. Heidi Wodiuk educational
status and all legal documents must be changed inaccordance to Dr. Heidi
Wodiuk education and appear on file and record as Dr. Heidi Wodiuk and
not Heidi Wodiuk.” (ECF No. 44 at 1.) The doctorate in question appears
to be a doctor of naturopathy degree awarded by Trinity College of Natural
Health, Warsaw, Indiana. (See id. at 3.)
The Court referred everything requiring a ruling to Judge Shaffer, as the Court would do
6
for all of Wodiuk’s motions from this point forward.
2.
Graziano’s Rule 35 Motion
On October 28, 2015, Graziano filed a motion for independent medical
examinations (“Rule 35 Motion”). (ECF No. 47.) Graziano argued that Wodiuk had put
her physical condition in question because she claimed that Graziano had caused
certain injuries, but other evidence showed that those injuries either never occurred or
were the result of preexisting chronic conditions; and Wodiuk had put her mental health
in question, “specifically, her perception of reality.” (Id. at 3.) The Court referred the
Rule 35 motion to Judge Shaffer. (ECF No. 49.)
3.
Judge Shaffer’s Rulings
The hearing scheduled for November 10, 2015, took place on November 23,
2015, to accommodate Wodiuk’s schedule. (See ECF Nos. 51, 58.) At that hearing,
Wodiuk stated that she had not found a new attorney. (ECF No. 58 at 1.) Judge
Shaffer then lifted the stay of discovery and extended the discovery deadline to January
29, 2016. (Id.) Concerning Wodiuk’s many pending motions, Judge Shaffer denied
most of them, some with prejudice and some without. (Id. at 1–2.) He reserved ruling,
however, on Wodiuk’s motion for a continued deposition of Graziano, and required
Wodiuk to submit the transcript of Graziano’s deposition to the Court. (Id. at 1.) He
also set a deadline for Wodiuk to respond to Graziano’s Rule 35 Motion. (Id. at 2.)
4.
Wodiuk's Response to the Rule 35 Motion
Wodiuk’s response to the Rule 35 Motion generically argues that Graziano had
failed to establish good cause. (See ECF No. 59 at 1–2.) Her only non-generic
objection was that “28 months has elapsed from the incident and therefore, no mental
health evaluation at this current time will be relevant or reflective to July 22, 2013 initial
7
matter.” (Id. at 2.) She said nothing about the dispute over her physical condition.
On the same day she filed her response, she also filed:
•
“Notice that: the United States District Courts of Colorado were made
aware of the organized conspired crime against the Plaintiff related to the
Defendant and the courts failed to report or investigate its claims.” (ECF
No. 60 at 1.) This seems to be some sort of warning about the
consequences of Judge Shaffer having denied her “[m]otion for: federal
protective” (ECF No. 40).
•
“Notice of: Plaintiff discovery private/privileged document’s are protected.”
(ECF No. 61 at 1.) This appears to be a renewal of her motion for a
protective order (ECF No. 34), although it was never docketed as a motion
and the Court has never treated it as such.
Wodiuk also filed the Graziano deposition transcript, as required by Judge Shaffer.
(ECF No. 62.)
5.
Subpoenas & Motions to Quash
From mid-December 2015 to early January 2016, the Court received ten motions
to quash subpoenas issued by Wodiuk to:
•
the executive director of the Pueblo YMCA, seeking, e.g., “the reports of
child abuse that the courts stated the Plaintiff did against her child,” “the
sworn affidavit of [the executive director] being at threatened, stalked by
the Plaintiff as alleged in case 2015CR1287,” etc. (ECF No. 72);
•
two physicians at a clinic where Wodiuk was a current patient, seeking the
types of information that parties must disclose about their expert
8
witnesses under Rule 26(a)(2), although the persons named in the
subpoenas had not been designated as experts (ECF No. 78);
•
the Pueblo County Sheriff, again seeking information that parties must
disclose about their expert witnesses, although the sheriff had not been
designated as an expert (ECF No. 82);
•
the Pueblo County Sheriff’s Department, seeking an enormous amount of
information, ranging from “all use of excessive force reports” regarding
Graziano to “all trespassing tickets” and “all active restraining orders”
(ECF No. 83);
•
the Morgan County (Colorado) Sheriff, seeking information that parties
must disclose about their expert witnesses, although the sheriff had not
been designated as an expert (ECF No. 90);
•
three judges in Colorado’s 10th Judicial District (encompassing Pueblo
County), seeking records about her mental health hold proceeding, the
related dependency/neglect proceeding, and also information that parties
must disclose about their expert witnesses, although none of the judges
had been designated as an expert (ECF No. 93);
•
the clerk of court for the 10th Judicial District, seeking records regarding
the Pueblo criminal proceeding Wodiuk mentioned in earlier filings
(15CR1287) (ECF No. 95);
•
an attorney in the Colorado Office of Attorney Regulation, seeking records
regarding Wodiuk’s mental health hold proceeding and the related
dependency/neglect proceeding, without explanation of why such records
9
might be found in the Office of Attorney Regulation (ECF No. 101);
•
the executive director of the Colorado Commission on Judicial Discipline,
also seeking records about her mental health hold proceeding and related
dependency/neglect proceeding, as well as records about all complaints
against “all Pueblo Colorado Judges from 2010 to present” (ECF No. 102);
and
•
the psychologist who performed a psychological examination in the
dependency/neglect proceeding, seeking a large amount of information on
that subject (ECF No. 105).
On January 5, 2016, Wodiuk filed with the Court copies of (apparently) all
subpoenas she had issued, showing that she had subpoenaed not only those who had
already moved to quash, but also AT&T (cellphone records), Cricket (same), Verizon
(same), “Secret Service-Charlie Bean-Colorado” (records regarding threats Wodiuk had
allegedly made against President Obama), Mattel Corporation (records regarding
Monster High dolls and “all satanic affiliations and satanic religious documentation
associated with [them]”), the FBI (records regarding her mental health hold and
dependency/neglect proceedings, and any investigations into the Pueblo Sheriff’s
Department), the U.S. Department of Justice (same), “United States Department of
Child Affairs” (same), the Colorado Bureau of Investigation (same), the Internal
Revenue Service (same, plus certain information about Franti), Spireon (GPS data),
Grand Canyon University (her diploma), Facebook (certain private messages), a
software company apparently responsible for the system used in the Pueblo County
Sheriff’s Department to log incident reports (records regarding certain incidents), the
10
Medicaid administration (her own medical records), family members apparently
responsible for the mental health hold (records in that regard, and many other sorts of
records), “Farmer New World Life Insurance” (records regarding a particular policy),
Graziano (numerous records related to the incident and the lawsuit), and at least seven
other individuals (some of them medical professionals) whose role is unknown.
Later in the day on January 5, 2016, Judge Shaffer held a three-and-a-half hour
hearing to resolve the various outstanding motions. (ECF No. 114.) Judge Shaffer
granted all of the motions to quash, without prejudice, because the subpoenas sought
information that was irrelevant to the case as currently framed. (Id. at 1–2.) He denied
Wodiuk’s motion for a renewed deposition of Graziano for apparently the same reasons.
(Id. at 3.) Judge Shaffer granted Graziano’s Rule 35 Motion. (Id.) Finally, he ordered
the parties to “work together cooperatively to schedule the Plaintiff’s deposition by
January 15, 2016.” (Id.) 4
6.
Appointment of Counsel & Wodiuk’s Detention in Pueblo County Jail
Acting under D.C.COLO.LAttyR 15, Judge Shaffer entered an order on January
8, 2016, finding that Wodiuk “merits appointment of counsel drawn from the Civil Pro
Bono Panel,” and ordering the Clerk of Court to find a member of that panel willing to
represent Wodiuk. (ECF No. 116.)
On January 11, 2016, Wodiuk filed “Demand for immediate relief: Crime Act of
1970 violation of treason by acts of grand treason to kidnapping with unenforcemable
evidence received by bargains is a violation of criminal statute.” (ECF No. 119 at 1.)
4
In the context of the order, it appears that January 15, 2016 was the deadline for the
parties to set a firm deposition date, not a deadline by which the deposition must happen. (See
id. (ordering the parties to file a status report on January 15, 2016 “advis[ing] the court that all
depositions have been scheduled”).)
11
This filing, however, bears the caption of the Pueblo criminal case (15CR1287), and is
essentially a motion to dismiss that case. The Court therefore treated it as a notice, not
a motion.
On January 14, 2016, the Court received a handwritten notice from Wodiuk that
she was “being taken to jail for case 15CR1287,” meaning she might not be able to
make court appearances in this case. (ECF No. 121.) Later the same day, Graziano
filed the status report Judge Shaffer required, stating that her counsel had not heard
from Wodiuk since January 7—perhaps because of the arrest she reported in her
handwritten notice—and so her renewed deposition had not been scheduled. (ECF
No. 122.)
On February 1, 2016, Wodiuk filed a handwritten “writ of certiorari,” stating that
she was “currently falsly detained,” and complaining that the Pueblo County Sheriff’s
Office was opening her mail—and that of President Obama, Oprah Winfrey, Franti,
“along with many others, without our permission.” (ECF No. 123 at 2, 3.) She asked for
“higher court intervention, so to protect from miscarriage of justice.” (Id. at 5.)
On March 14, 2016, the Court received five motions from Wodiuk:
•
“Demand for relief: Plaintiff response to Defendant’s evidence tampering
claim.” (ECF No. 130.) It is not clear what evidence tampering claim
Wodiuk had in mind.
•
A motion for “District Court of U.S. Intervention” into the Pueblo criminal
proceeding due to an alleged speedy trial violation. (ECF No. 131.)
•
A motion for the Court to appoint Wodiuk “a federal prosecutor,” and to
appoint a guardian ad litem for Wodiuk’s child. (ECF No. 132.)
12
•
“Motion to: inform the Court of Sean Lane [one of Graziano’s attorneys]
evidence tampering and failure to report child porn to FBI related to this
case.” (ECF No. 133.) This motion accuses Mr. Lane of providing,
without consent, some of Wodiuk's personal files to the Pueblo County
Sheriff’s Office, and failing to report to the FBI that those files contained
child pornography.
•
A motion for “continuance of claim”—in effect, a stay—until the Court
appointed the “federal prosecutor” for Wodiuk. (ECF No. 144.)
C.
Proceedings While Wodiuk Was Represented by Mr. Glantz
On April 19, 2016, Attorney Perry L. Glantz filed a notice of appearance as pro
bono counsel for Wodiuk. (ECF No. 146; see also ECF No. 144.) Mr. Glantz filed a
status report on May 10, 2016, informing the Court that Wodiuk had been committed to
the Colorado Mental Health Institute at Pueblo (“state hospital”) because she had been
found incompetent to proceed in the Pueblo criminal case. (ECF No. 150 at 1.)
On June 17, 2016, Mr. Glantz filed a motion to appoint a guardian ad litem for
Wodiuk. (ECF No. 152.) At a hearing on June 23, 2016, Judge Shaffer denied that
motion without prejudice and administratively closed the case in light of Wodiuk’s civil
commitment to the state hospital. (ECF No. 156 at 2.)
On August 24, 2016, the Court received a handwritten motion from Wodiuk
herself, asking for the “case to proceed.” (ECF No. 52 at 1.) Wodiuk had interpreted
the administrative closure as a permanent end to the case and asserted that Mr. Glantz
did not have her permission to dismiss the case. (Id.) The Court struck that filing
because, per D.C.COLO.LAttyR 5(a)(4), only an unrepresented party or a member of
13
the bar of the Court may sign and file pleadings. (ECF No. 160.)
On September 15, 2016, an attorney in Mr. Glantz’s office filed a status report
(Mr. Glantz himself was unable to make the filing, due to serious bike accident that
rendered him unable to perform his work). (ECF No. 162.) This report informed the
Court that Wodiuk had been discharged from the state hospital and returned to the
Pueblo County Jail. (Id. ¶ 2.) The attorney also filed a motion for himself and
Mr. Glantz to withdraw in light of Mr. Glantz’s incapacity and the attorney’s own inability
to take the case. (ECF No. 163.)
D.
Proceedings While Wodiuk Represented Herself (Second Time)
1.
Attempts to Hold a Status Conference & Wodiuk’s Unrelated Filings
On September 16, 2016, Judge Shaffer granted the motion to withdraw, meaning
that Wodiuk was pro se once again. (ECF No. 165.) Over the next month, Judge
Shaffer set and reset telephonic status conferences, but Wodiuk apparently did not
receive notices of those conferences.
On October 12, 2016, the Court received from Wodiuk a missing child flyer
featuring pictures of, and information about, Wodiuk’s child. (ECF No. 177.) Because
of personal identifying information on that flyer, the Court placed it under Restricted
Access, Level 3. The flyer states that Wodiuk’s child was kidnapped on July 22, 2013
(i.e., the date of the incident leading to this lawsuit) and names twenty-one individuals
as the child’s kidnappers. (Id.) Among those names are members of the Pueblo
County Sheriff’s Office (including Graziano), members of Wodiuk’s family, and “Judge
Schaffer.” (Id.)
The flyer asked readers to find out more on Wodiuk’s YouTube channel, and the
envelope in which the flyer was mailed to the Court displayed a residential return
14
address for Wodiuk. Judge Shaffer accordingly presumed that Wodiuk had been
released from the Pueblo County Jail, and he ordered her to appear in person for a
status conference on November 17, 2016. (ECF No. 178 at 2.)
On October 24, 2016, the Court received from Wodiuk a “demand for relief”
based on the allegation that the Pueblo County Sheriff’s Department was “illegally
monitoring [her] cell phone without a warrant,” meaning that all court hearings at which
she appeared in 2014 and 2015 “were recorded by third parties off of her cell phone
through illegal hackers listening in.” (ECF No. 179 at 1.) Judge Shaffer denied the
motion. (ECF No. 182.)
On October 26, 2016, the Court received from Wodiuk another “demand for
relief” seeking “habeas corpus release of [Wodiuk’s child] back to Dr. Heidi Wodiuk full
custody.” (ECF No. 183.)
On October 31, 2016, the Court received from Wodiuk an “invoice of pro se
discovery defendant failed to pay for.” (ECF No. 185.) This document claimed that
Graziano owed Wodiuk $1,600 for an “[e]vidence fee” that was now “a year past due.”
(Id. at 1, 2.) Wodiuk nowhere explains what she spent this $1,600 on, nor why
Graziano is obligated to pay it. She nonetheless demanded immediate payment “or this
bill will be sent to collections.” (Id. at 2.)
On November 3, 2016, the Court received from Wodiuk a demand that this Court
or the State of Colorado (the document is ambiguous) pay Wodiuk and Franti
$23,328,000 because of the Court’s or the State of Colorado’s “willful, conscious,
malicious aiding and abetting 15CR1287 domestic terrorism acts against Dr. Heidi
Wodiuk done for the state in racketeering in human trafficking in the national economy
15
cartels.” (Id. at 1, 2.)
2.
The November and December 2016 Status Conferences & Wodiuk’s
Other Filings
Judge Shaffer held a hearing on November 17, 2016, as scheduled, and Wodiuk
appeared in person. (ECF No. 188 at 1.) Judge Shaffer told Wodiuk that her recent
filings were not considered motions. (Id.) Wodiuk informed Judge Shaffer that her
Pueblo criminal case was set for trial on March 6, 2017. (Id.) The major topic of
discussion, however, was whether to move forward with the case—which was still
administratively closed. Judge Shaffer “advised [Wodiuk] that she may not file motions
seeking relief while this case is closed,” and set a further status conference for
December 6, 2016 “to discuss if the case will be reopened.” (Id. at 2.) Judge Shaffer
also placed Wodiuk back “on the list for pro bono counsel.” (Id.)
On November 22, 2016, the Court received from Wodiuk a “demand for relief:
PATRIOT Act violation’s done by this Court.” (ECF No. 190.) This document accused
the Court of “aiding and abetting domestic terrorism acts made against Dr. Heidi
Wodiuk,” somehow related to law enforcement officers “detaining her on a presidential
threat . . . so to discredit her in this case for trial in hopes to sway a jury.” (Id. at 1–2.)
In anticipation of the December 6, 2016, status conference, the parties each filed
a status report. Graziano stated that, were the case to be reopened, the only discovery
that had yet to be completed was the reopening of Wodiuk’s deposition “and, possibly,
[Rule 35 physical and mental health evaluations]. The necessity of these examinations
depends in large part on Plaintiff’s testimony during her renewed deposition.” (ECF
No. 192 ¶ 7.) Wodiuk, for her part, asked that the Court “maintain this court case as it is
[i.e., administratively closed] until case 15CR1287 case is dismissed,” apparently
16
because she would invoke the Fifth Amendment during any discovery in this case to
avoid incriminating herself in the other case. (ECF No. 193 at 1.)
The December 6, 2016 status conference took place as scheduled, and Wodiuk
appeared in person. (ECF No. 194.) Judge Shaffer agreed to keep the case
administratively closed in light of Wodiuk’s pending criminal case. (Id.) He ordered the
parties to file status reports by February 23, 2017, which was one week after a pretrial
conference scheduled in the criminal case. (Id.) He further ordered:
To the extent Ms. Wodiuk is seeking relief from the court,
she must file a motion. Ms. Wodiuk is not permitted to file
demands or petitions with the court. The only demand that
can be filed would be in form of a new lawsuit. The court will
strike all further demands filed in this case.
While this case is administratively closed, parties are not
allowed to file any motions, with the exception of a motion to
re-open the case.
Going forward, any filings by Ms. Wodiuk must fully comply
with the Federal Rules of Civil Procedure and this Court’s
Local Rules.
(Id. at 2.)
On December 19, 2016, the Court received from Wodiuk a “notice of: cease and
desist your RICO-Hitler acts now.” (ECF No. 195 at 1.) The notice accused the Court
of “acting in sedition and doing whatever they want based on Robert Troyer movement
in population control.” (Id.) 5
3.
Wodiuk’s Incompetency Finding & Graziano’s First Rule 41(b) Motion
On February 15, 2017, the Court received from Wodiuk a status report regarding
her Pueblo criminal case. (ECF No. 199.) “As of today,” she said, “I-Dr. Heidi Wodiuk
5
Robert Troyer was United States Attorney for the District of Colorado from 2016 to
2018.
17
am deemed incompetent to the basics of law in 15CR1287 and delusion for my famous
and rich friends, acquaintances and family affiliations of which are all documented in the
case.” (Id. at 1.) Wodiuk went on to make various accusations against the psychologist
performing the competency evaluation, her criminal defense attorney, and the trial court
judge. (Id. at 1–2.) She also claimed that the judge “stated on record on February 2,
2017 that Dr. Wodiuk would be held to 98 years at maximum prison in CMHIP facility
[i.e., the state hospital] if Dr. Wodiuk does NOT cooperate with life-threatening
medications, evaluations, treatment etc.” (Id. at 2.) “Therefore, as it stands case
15CR1287 is on hold due to unlawful and unconstitutional competency hold and
therefore, this [case] too is to be held on hold as well.” (Id.)
On February 23, 2017, Graziano filed a motion to dismiss for lack of prosecution
under Federal Rule of Civil Procedure 41(b). (ECF No. 201.) The motion emphasized
that “[t]his case has languished for 16 months since Plaintiff’s original counsel withdrew
in October 2015,” “[t]he law enforcement contact which led to this case occurred over 3
and a half years ago,” and, although the Court administratively stayed the case to
accommodate the Pueblo criminal proceedings, “[g]iven Plaintiff’s recent return to a
status of legal incompetence in her Pueblo County District Court case(s), it is unclear
when, if ever, her criminal charges will proceed to trial.” (Id. at 4, 5, 6.) But, Graziano
argued, during the time periods when Wodiuk was not “under the shadow of legal
incompetency,” she nonetheless did “nothing to advance the progress of her case.” (Id.
at 6.) “Plaintiff’s lack of relevant action has reached a degree where dismissal is an
appropriate action by this Court.” (Id. at 7.) The Court referred Graziano’s motion to
Judge Shaffer. (ECF No. 202.)
18
On May 12, 2017, Judge Shaffer entered a minute order stating that he was
“working on the parties’ pending motions and would like to review the deposition of
Plaintiff in the context of considering those motions.” (ECF No. 207.) He therefore
ordered Graziano’s counsel to provide a copy of that deposition. (Id.)
On May 18, 2017, the Court received from Wodiuk a “motion for: contempt of
court ex parte crimes to be motioned in reporting to FBI, the US judicial discipline board
and the United States President Donald Trump today for the prohibited crimes done in
ex parte.” (ECF No. 208 at 1.) The motion accused the judges who have presided over
her cases, and the attorneys involved in those cases, of “partaking in ex parte
communications to organize and conspire harm to Dr. Wodiuk and her child and all the
case witnesses.” (Id.) The motion provided no factual basis for these accusations.
4.
Judge Shaffer’s Rulings and Appointment of a Temporary Guardian ad
Litem
On June 6, 2017, Judge Shaffer denied the “contempt” motion as “wholly
frivolous,” and reminded Wodiuk that, “[a]s Senior Judge Babcock advised [her] in other
cases,[6] even a pro se litigant does not have the right to abuse the judicial process by
filing motions or other submissions that are wholly without factual or legal merit.” (ECF
No. 210 at 37.)
In that same order, Judge Shaffer also denied Graziano’s motion to dismiss for
lack of prosecution. After a review of proceedings to date, Judge Shaffer concluded,
6
See Heidi Wodiuk v. Ian Cooper, Civil Action No. 17-cv-943-LTB (D. Colo., filed
Apr. 18, 2017); Heidi Wodiuk v. The People of Colorado, Civil Action No. 17-cv-475-LTB
(D. Colo., filed Mar. 24, 2017); Heidi Wodiuk v. Pueblo Water Conservancy Dist., Civil Action
No. 17-cv-223-LTB (D. Colo., filed Jan. 25, 2017); Heidi Wodiuk v. Ian Cooper, Civil Action
No. 16-cv-2974-LTB (D. Colo., filed Dec. 6, 2016); Heidi Wodiuk v. The People of Colorado,
Civil Action No. 16-cv-983-LTB (D. Colo., filed May 2, 2016).
19
I do not find that Officer Graziano has suffered a “degree of
actual prejudice” that would justify imposition of an extreme
sanction. While memories are likely to fade with the
passage of time, Defense counsel has not demonstrated an
inability to discover relevant facts surrounding the events at
the Kohl’s Department Store parking lot. Counsel
questioned Ms. Wodiuk at length during her deposition in
2015 and obtained Plaintiff’s detailed account of what
occurred during her interaction with Officer Graziano.
Indeed, save for the possibility of re-opening Ms. Wodiuk’s
deposition to address a limited number of topics (which may
or may not be relevant to Plaintiff’s alleged damages),
defense counsel appears to have completed discovery
directed to issues of liability.
(Id. at 19.) Judge Shaffer also stated that he could not
find that delay is the result of wil[l]ful misconduct on the part
of Ms. Wodiuk. The withdrawal of Plaintiff’s original counsel
was a complicating factor, but without knowing all of the
circumstances that prompted counsel’s motion, this court is
not prepared to ascribe any wrongful motive to Ms. Wodiuk.
Certainly, Plaintiff cannot be faulted for her second counsel’s
bicycle accident and resulting motion to withdraw. Although
the Pueblo County District Court’s competency findings have
delayed the criminal case (and this case indirectly),
Ms. Wodiuk has challenged the findings of the [state
hospital] evaluators. . . . It further bears noting that
Ms. Wodiuk has never been put on notice that this case
could be dismissed with prejudice for failure to prosecute.
(Id. at 20–21 (footnote omitted).)
As an alternative to Rule 41(b) dismissal, Judge Shaffer invoked Rule 17(c)(2),
which requires district courts to “appoint a guardian ad litem—or issue another
appropriate order—to protect a minor or incompetent person who is unrepresented in an
action.” (See ECF No. 210 at 30.) Judge Shaffer found Wodiuk incompetent to
proceed based on the competency ruling in her criminal case, a similar ruling in a civil
case in Pueblo County, and “[his] own observations of Ms. Wodiuk during several
hearings in this case.” (Id. at 35.) Judge Shaffer therefore stated that he would appoint
20
a guardian ad litem for 45 days, during which time Wodiuk could submit information
disputing Judge Shaffer’s incompetency finding—and, upon receipt of that information,
Judge Shaffer would decide whether to make the guardian ad litem’s appointment
indefinite, or to hold a hearing. (Id. at 36–37.)
5.
Wodiuk’s Reaction
On June 19, 2017, the Court received from Wodiuk a “demand for relief:
unconstitutional GAL requests and deprivation of medical and legal rights in this case
with due process violations.” (ECF No. 211 at 1.) Wodiuk asserted that a particular
attorney had contacted her about an appointment to be a guardian ad litem, and Wodiuk
objected that she had not received a competency hearing. (Id.) She further
characterized the appointment of a guardian ad litem as “an act of treason to wrongfully
take my estate or wrongfully and criminally take conservatorship over my finances in a
crime of treason.” (Id.)
On June 26, 2017, Wodiuk filed a motion for a copy of Judge Shaffer’s June 6
order, stating that she had learned of it but had not received it, and asking for it to be
mailed to a PO Box in Colorado Springs. (ECF No. 213.) On June 29, 2017, however,
she filed another motion asking the court to “cure it is deficient demands” in the June 6
order because she did not have a copy of the competency evaluation in her criminal
case and so could not submit it to Judge Shaffer (ECF No. 216)—showing that, by that
time, she had received a copy of Judge Shaffer’s order.
On June 30, 2017, Judge Shaffer denied Wodiuk’s “cure” motion because
Wodiuk had stated that she tried and failed to obtain her competency evaluation from
her attorney and from the Pueblo courts, with all attempts “documented and witnessed,”
yet Wodiuk “does not attach any of the documentation, or otherwise illuminate for the
21
court what requests she made.” (ECF No. 218 at 2.) A couple of weeks later, Wodiuk’s
criminal defense attorney sent Judge Shaffer competency evaluations from May 2016
and April 2017. (See ECF No. 220 at 1; ECF No. 222 at 3 n.1.)
6.
Appointment of Counsel and a Non-Temporary Guardian ad Litem
By order dated August 11, 2017, Judge Shaffer concluded, in light of the
competency evaluations he had received and Wodiuk’s record of behavior in this case,
that she was incompetent and that a guardian ad litem should be appointed for the
foreseeable future. (ECF No. 223 at 3–5.) Judge Shaffer further ordered “that the Clerk
shall renew Plaintiff’s placement on the court’s list for a pro bono attorney under the
Civil Pro Bono Panel.” (Id. at 5.)
E.
Proceedings While Wodiuk Was Represented by Mr. Glantz (Second Time)
and Ms. Day, with Mr. Glatstein as Guardian ad Litem
1.
Appointment of the Guardian ad Litem and Reappointment of Counsel
On August 11, 2017, the Court appointed Mr. M. Carl Glatstein as guardian ad
litem, and it reappointed Mr. Glantz—who had apparently recovered from his bike
accident—as Wodiuk’s attorney. (ECF No. 223.)
On August 25, 2017, but Court received from Wodiuk a “notice of: GAL Carl
Glatstein to report malicous and prohibited organized white-collar crimes to FBI
immediately.” (ECF No. 227 at 1.) Wodiuk asserted that she had “received a malicious
unconstitutional GAL” and recounted a recent telephone conversation with Mr. Glatstein
where she challenged him “to explain how a GAL would be of a legal need for me- a
able bodies, sharp minded, well educated, competent, highly capacitated person.” (Id.
at 2.) She further demanded that Mr. Glatstein meet her at “the FBI building in Denver”
the following month. (Id.)
22
2.
Wodiuk’s Letters
Between September 5 and September 29, 2017, Wodiuk filed with the Court
copies of nine letters that she had written (mostly to Messrs. Glantz and Glatstein),
specifically:
•
an August 31, 2017 letter to Mr. Glantz, complaining that he had
previously withdrawn, “leaving me for dead at [the state hospital] and
Pueblo County Jail in 2016,” announcing that she was “hold[ing] you
Mr. Glantz legally liable for the irreparable injuries” allegedly caused at
those institutions, and accusing him of “ex parte communication with
malicious GAL Carl Glatstein” (ECF No. 230 at 1);
•
an August 31, 2017 letter to Mr. Glatstein, recounting a telephone
conversation of the same day, complaining that Mr. Glatstein would not
“report legalized kidnapping of my child and the attempted murder and
kidnapping of me to FBI,” and accusing him of “organizing and conspiring
with Perry Glantz to rob me in the settlement monies to come in this case”
(id. at 2);
•
a September 5, 2017 letter to then-Governor Hickenlooper, asking why he
had not responded to a purported warning from then-U.S. Attorney
General Jeff Sessions about “rebellious government actors running RICO,
Domestic Terrorism Groups by use of Government seats of office or
power, Human Trafficking, Genocide Crimes, Child Sex Cartels, Drug
Cartels, Sex Cartels and depriving us citizens from judicial abuse” (ECF
No. 231);
23
•
a September 11, 2017 letter to Messrs. Glantz and Glatstein, complaining
that they had not reported “the crimes done to me, my child and my
estate” to the FBI, and noting that her “reason for putting your failures in
writing” was “so that it is legal and you are seen in your assessor criminal
acts done against me, my child, my estate, my witnesses et al.” (ECF No.
233);
•
a September 12, 2017 letter to Messrs. Glantz and Glatstein, supposedly
attaching a police report, “so that you are abridged to the organized crime
done against me and that I am suffering domestic terrorism by the
Defendant et al. in the Pueblo Sheriff Department linked to this federal
case” (ECF No. 235);
•
a September 13, 2017 letter to Messrs. Glantz and Glatstein, again
complaining of their failure to report crimes to the FBI, further complaining
that they would not meet her at the FBI building in Denver, and attaching
an x-ray purportedly showing “the damage to my neck as too the damage
to my wind pipe” (ECF No. 236); 7
•
a September 20, 2017 letter to Messrs. Glantz and Glatstein that
reproduces the September 13 letter mostly verbatim, minus discussion of
the x-ray (ECF No. 243);
•
a September 22, 2017 letter to Messrs. Glantz and Glatstein that again
complains about their failure to meet her at the FBI building in Denver, and
also informs them that she was “a victim of the Wells Fargo bank
7
It is not clear from the letter if Wodiuk means to say that this was damage inflicted by
Graziano.
24
robberies and am in class action suits” (ECF No. 245); and
•
a September 25, 2017 letter to Messrs. Glantz and Glatstein, demanding
that they subpoena security footage from a hotel, at which Wodiuk says
she was “intimidated, stalked, harassed, by actors who are linked to my
federal case and were sent to threaten me” (ECF No. 248).
3.
Reopening of the Case
Judge Shaffer held the status conference on October 2, 2017, with Messrs.
Glantz and Glatstein present, alongside Wodiuk. (ECF No. 249 at 1.) Judge Shaffer
instructed Wodiuk that she “may not file anything in this case while she is represented
by counsel and or a guardian ad litem.” (Id.) Judge Shaffer then ordered that the case
be reopened and that Graziano file a motion for summary judgment by October 30,
2017. (Id.)
4.
More Filings from Wodiuk
From October 2 to October 17, 2017, the Court received from Wodiuk the
following, specifically:
•
a September 30, 2017 letter to numerous persons, including Messrs.
Glantz and Glatstein, asserting that “several psychologists” have told her
“that I do NOT have a mental illness” and that “the neurologist and other
doctors have . . . noted on my REAL medical records that my story checks
out and it is NO delusion” (ECF No. 250);
•
an October 2, 2017 “notice of: treason to the color of law and
Constitution,” accusing Messrs. Glantz and Glatstein of failing to keep her
properly apprised, and also failing to “report federal corruption, organized
crime, legalized kidnapping, legalized murder ploys acted out and
25
conspired, deprivation of all legal and medical rights and also presidential
threats, and genocide” (ECF No. 251);
•
an October 4, 2017 letter to “Denver First-Denver University-William Neil
Gowensmith, Ph.D,” accusing the University of Denver of being “on the
back end promised monies to my estate for the Sherman act crimes being
done to me, my daughter, Michael Franti and Oprah Winfrey estate” (ECF
No. 254 at 5);
•
an October 4, 2017 letter to the US Marshals Service, the FBI, and the
Department of Homeland Security, apparently complaining about being
unable to make a video or audio recordings in this courthouse (id. at 6);
•
an October 5, 2017 letter to Messrs. Glantz and Glatstein, asserting her
understanding that Mr. Glantz is really an attorney for Mr. Glatstein,
meaning she was “still acting Pro Se with a GAL and GAL assistant
attorney,” but otherwise requesting that they help her with various matters,
including sending a check to Franti “for him to cash as I can NOT cash it
without his signature” (ECF No. 253);
•
an October 5, 2017 “notice of: October 2, 2017 court room deprivation of
rights,” criticizing Judge Shaffer’s actions at the October 2, 2017 status
conference (ECF No. 254 at 1–4);
•
an October 5, 2017 letter to various Pueblo County governmental
authorities complaining that Franti’s name had been improperly removed
from property records associated with properties that Wodiuk owns, and
insisting that Franti and Oprah Winfrey had “both been legally notified and
26
fully consented” to being joint owners of Wodiuk’s properties (ECF
No. 255);
•
an October 8, 2017 letter to Messrs. Glantz and Glatstein, theorizing that
Mr. Glantz’s bike accident was part of a larger plot against Wodiuk that
“strangely is the same similar events as done in the ‘white water’ case
filed against the Clinton’s,” but also repeating her view that she remained
unrepresented because Mr. Glantz was Mr. Glatstein’s attorney, not hers
(ECF No. 257);
•
an October 8, 2017 “motion for: penal sanctions to be imposed for due
process violations in willful, concious obstruction of civil justice,” asserting
that Judge Shaffer should be disciplined for appointing a guardian ad litem
(ECF No. 258); and
•
an October 15, 2017 letter to Wodiuk’s criminal defense attorney,
complaining that she has not heard from him since December 2016, and
also that he had “failed to notify the FBI, notify Michael Franti of this case
and his estate in the insurance matters and checks in his name” (ECF No.
264).
On October 30, 2017, Graziano filed the partial summary judgment motion that
Judge Shaffer directed her to file as of that date, attacking an unlawful search claim that
have been lingering in the case. (ECF No. 265.) However, a stipulation between the
parties a few weeks later rendered the unlawful search claim moot (ECF No. 275), and
the Court therefore denied the summary judgment motion as moot (ECF No. 303).
From November 6 to 8, 2017, the Court received two additional letters from
27
Wodiuk of the same character as those already described. (ECF Nos. 266, 270.) Also,
on November 8, 2017, the Court received from Wodiuk a “demand for relief: levy for war
crime of hostage taking.” (ECF No. 271 at 1.) This document describes a supposed
invasion of “Winfrey and Wodiuk’s Beulah [Colorado] home” by the Pueblo Sheriff’s
Department, attempting to murder her, although other details in the letter suggest that
they arrested her and brought her to the Pueblo County Jail. (Id. at 1–2.)
5.
Substitution of Judge Carman
As is now well known, Judge Shaffer was diagnosed with cancer in October 2017
and required immediate, intensive treatment. His caseload was therefore transferred to
U.S. Magistrate Judge Mark L. Carman of the United States District Court for the
District of Wyoming. (See ECF No. 268.) Judge Carman scheduled a competency
hearing for December 13, 2017 (ECF No. 269), but learned at a status conference on
December 8, 2017 that Wodiuk was currently incarcerated (ECF No. 279 at 1). Counsel
for both sides agreed that a competency hearing would not be beneficial under the
circumstances, and Judge Carman therefore vacated it. (Id.) The parties discussed
how to proceed with the case, and counsel for Graziano asked to conduct a Rule 35
exam. (Id.) Judge Carman elected to hold a new scheduling conference on January
11, 2018. (Id.) Also at that status conference, an additional attorney for Mr. Glantz’s
firm, Ms. Anna Day, entered an appearance. (See id.; see also ECF No. 301 (Ms.
Day’s formal entry of appearance).)
Between that status conference and the January 2018 scheduling conference,
the Court received from Wodiuk numerous “demands for relief,” notices, copies of
pleadings filed in Wodiuk’s Pueblo criminal case, and copies of grievances filed with the
Pueblo County Jail. (See ECF Nos. 280, 283, 284, 286, 288, 290, 293, 294, 297, 298,
28
299, 300.) Most of these filings relate to the Pueblo proceedings and her conditions of
confinement. For present purposes, it suffices to summarize only the following:
•
a copy of a December 12, 2017 motion for a personal recognizance bond,
filed by Wodiuk’s new criminal defense attorney so that she could be
released to the state hospital, because the attorney believed Wodiuk was
“in danger and needs to receive” expedited psychiatric care (ECF No. 283
at 1);
•
a December 13, 2017 “notice” from Wodiuk that her new criminal defense
attorney was in league with her former defense attorney and the district
attorney (ECF No. 284); and
•
a December 27, 2017 purported mandamus petition from Wodiuk
accusing Messrs. Glantz and Glatstein of multiple supposed crimes
committed against her (ECF No. 297).
6.
New Scheduling Order
The January 11, 2018 scheduling conference happened as scheduled. (ECF
No. 304.) The parties discussed “reopening the Plaintiff’s deposition, getting an IME
[i.e., a Rule 35 examination] of the Plaintiff, and the difficulty of doing these given
Ms. Wodiuk’s current location.” (Id. at 1.) In the resulting scheduling order, Judge
Carman noted that
the parties agree[d] that the remaining fact discovery will be
limited to the following:
(1) a Fed. R. Civ. P. 35 examination of Wodiuk, if such an
examination is possible given Wodiuk’s mental condition;
(2) no more than 10 requests for admission propounded by
Defendant regarding the authenticity of certain documents;
and
29
(3) no more than 7 interrogatories propounded by Defendant
regarding Wodiuk’s damages.
(ECF No. 305 at 4.) The scheduling order also set a fact discovery deadline of
February 15, 2018, an expert discovery deadline of April 18, 2018, and a dispositive
motion deadline of April 30, 2018. (Id. at 6.)
From the scheduling conference through the dispositive motion deadline, the
Court received from Wodiuk dozens of additional letters, notices, demands for relief,
copies of grievance forms, and other communications. (See ECF Nos. 307, 312, 313,
314, 315, 320, 321, 322, 327, 328, 329, 331, 333, 335, 336, 337, 338, 340, 342, 343,
345, 346, 347, 348, 349, 350, 353, 354, 355, 356, 358, 359, 361, 362, 364, 365, 367,
368, 369, 376.) These documents are of the same character as those already
described above, with numerous accusations of conspiracies, involvement of famous
persons (Martha Stewart, Snoop Dogg), and descriptions of supposed crimes that
Wodiuk had reported to major national figures such as the Attorney General and the
President. The salient points, for present purposes, are that Wodiuk was transferred to
the Fort Logan branch of the state hospital in January 2018 (see ECF No. 312) and she
continued to consider Messrs. Glantz and Glatstein to be antagonistic to her interests
(see ECF No. 320).
7.
Summary Judgment Practice
Graziano filed her motion for summary judgment on April 30, 2018, attacking the
only remaining claim in this lawsuit, i.e., that she applied excessive force during the
arrest on July 22, 2013. (ECF No. 378.) Between that motion and Wodiuk’s response
(filed by Ms. Day) (ECF No. 391), it became clear that the incident in question arose
essentially as follows:
30
•
Graziano handcuffed Wodiuk in the usual manner (i.e., with Wodiuk’s
hands behind her back).
•
Graziano then leaned into Wodiuk from behind to prompt her to move
toward the patrol car.
•
As Graziano leaned into Wodiuk, Wodiuk either pinched Graziano in the
stomach (Graziano’s story) or Graziano perceived a pinch on account of
the way Wodiuk’s handcuffed hands naturally moved when they made
contact with her stomach (Wodiuk’s story).
•
Graziano either “attempted to use a common per[o]neal strike” (i.e., a
strike to the peroneal nerve on the back of the leg) to force Wodiuk to
release the pinch, which failed, but Graziano nonetheless managed to
push Wodiuk to the patrol car and put her in the backseat (Graziano’s
story); or Graziano violently pumped Wodiuk’s handcuffs up and down,
kneed Wodiuk in the back, and struck her twice in the back with a closed
fist, leading to various shoulder and hip injuries requiring surgery
(Wodiuk’s story).
(Compare ECF No. 378-1 at 6 with ECF No. 391 at 6–8.)
In the middle of summary judgment briefing, Judge Carman entered a final
pretrial order and the Court set a jury trial for October 2018. (ECF Nos. 392, 394.)
8.
Graziano’s Motion to Strike
On July 3, 2018, a few weeks after summary judgment briefing was completed,
Graziano filed a Motion to Strike Plaintiff’s Incomplete Deposition (“Motion to Strike”).
(ECF No. 402.)
31
The Motion to Strike is in the nature of a motion in limine. Graziano recounted
the basis for her Motion for Continued Deposition, Judge Shaffer’s grant of that motion,
and the parties’ inability to schedule the continued deposition, which Graziano attributed
to Wodiuk’s intentional noncooperation. (Id. ¶¶ 2–10; see also Parts I.A.3, I.A.5, and
I.B.6, above.) Graziano’s counsel had also recently learned that, given Wodiuk’s
confinement in the state hospital, Mr. Glatstein intended to go to trial without her
presence, relying solely on her deposition testimony. (ECF No. 402 ¶¶ 12–13.)
Graziano considered this prejudicial for two reasons. First, she cited Rule
32(a)(6), which states, “If a party offers in evidence only part of a deposition, an adverse
party may require the offeror to introduce other parts that in fairness should be
considered with the part introduced, and any party may itself introduce any other parts.”
From Graziano’s perspective, this rule was frustrated because she was unable to
develop other parts of the deposition that should, in fairness, be considered alongside
the rest of the deposition. (Id. ¶¶ 14–16.) Second, Graziano noted that Wodiuk’s
deposition was taken for discovery purposes only, and was not intended to preserve
Wodiuk’s testimony for use at trial. Thus, Graziano’s counsel approached the
deposition differently than he would have if he had known that it would be the only
testimony from Graziano at trial. (Id. ¶¶ 17–22.)
Wodiuk’s counsel responded that the topics on which Graziano originally sought
the continued deposition were now irrelevant. Wodiuk’s counsel asserted that further
questioning about the paternity of Wodiuk’s child “would have been potentially relevant
to the unlawful search and seizure claim that was previously dismissed by joint
stipulation.” (ECF No. 403 ¶ 5.) And regarding the ownership of Wodiuk’s properties,
32
Graziano had stated that this was relevant to damages for lost income and increased
maintenance expenses, but Mr. Glatstein was “willing to withdraw [that claim of
damages] from the case altogether.” (Id.) From Wodiuk’s counsel’s perspective,
Graziano was not moving to strike “because [the deposition] is allegedly incomplete.
Rather, [she] seeks to strike [Wodiuk’s] deposition because she knows that, without this
deposition, there is no way for [Wodiuk] present her case to a jury,” given Wodiuk’s
psychiatric status. (Id. ¶ 9.)8
In reply, Graziano stated that the topics on which the continued deposition would
focus were not irrelevant because, at a minimum, they informed Wodiuk’s credibility,
“based upon her perception of reality.” (ECF No. 405 ¶¶ 2–6.) Graziano further claimed
that it would be “fundamentally unfair” to permit Wodiuk “to pursue her claim in absentia,
without [Graziano] having the opportunity to meaningfully cross examine [her], the sole
fact witness presented on her behalf.” (Id. ¶ 13.)
9.
Administrative Closure (Second Time)
On September 10, 2018, the Court ordered the parties to show cause “why this
case should not be administratively closed until such time as Plaintiff is no longer
deemed incompetent, or other such time as the Court may order.” (ECF No. 406.) The
Court’s reasoning was that both sides (not just Graziano) faced potential prejudice, and
a trial might be practically pointless, if Wodiuk “testified” solely through her deposition
transcript:
8
Judge Carman’s scheduling order mentions the continued deposition but states that the
parties had agreed only to pursue a Rule 35 exam and certain written discovery. (See Part
I.E.6, above.) In response to the Motion to Strike, however, Wodiuk’s counsel did not argue that
the scheduling order somehow revised or overturned Judge Shaffer’s grant of Graziano’s
Motion for Continued Deposition. The Court therefore presumes that Judge Shaffer’s order
remains intact.
33
It is clear from the pending motions [i.e., the summary
judgment motion and Motion to Strike] that Plaintiff is not
competent to testify at trial. Without prejudging the pending
motions, the Court fears that, no matter how meritorious
Plaintiff’s claims may be from an objective standpoint, a trial
where the most important testimony in Plaintiff’s case-inchief must come by way of Plaintiff’s own deposition, which
was not taken for trial-preservation purposes, may severely
impede Plaintiff’s ability to present an effective case to the
jury. Moreover, Defendant has at least a colorable argument
that she will be prejudiced if she must defend against
testimony from an incomplete deposition that was not
reopened, contrary to the intent of Magistrate Judge Shaffer.
In short, the Court wishes to avoid a trial that may be a
foregone conclusion even if, from a purely legal perspective,
there is a genuine issue of material fact to resolve.
(Id.)
In response, Mr. Glatstein stated that he did not oppose administrative closure.
(ECF No. 409 at 1–2.) Graziano urged the Court to simply grant her summary
judgment, or to again consider Rule 41(b) dismissal, but nonetheless “recognize[d] the
dilemma faced by this Court, and underst[ood] the purpose of administratively closing
this matter.” (Id. at 2–3.)
On September 17, 2018, in light of the parties’ responses, the Court denied
Graziano’s summary judgment motion and Motion to Strike without prejudice, vacated
the October 2018 trial setting, administratively closed the case, and ordered Wodiuk’s
counsel to file status reports every six months. (ECF No. 409.)
10.
More Letters from Wodiuk
By this point, the Court had received nothing directly from Wodiuk since April
2018. On September 18, 2018, however, the Court received a letter generally
complaining that the Fort Logan state hospital was not adequate to treat those deemed
incompetent to proceed to trial, supposedly demonstrating that her commitment to the
34
state hospital was a “ploy.” (ECF No. 410.)
The docket was quiet once again until December 12, 2018, when the Court
received a letter that was, for unclear reasons, formally addressed to U.S. Magistrate
Judge Nina Y. Wang. (ECF No. 411 at 1.) Judge Wang has never had any involvement
in this case. Regardless, Wodiuk asserted, “If you see my filings you’ll see I’m highly
competent the basics of law making the Racketeering problem of competency one of
human trafficking and not of pure merit of competency law.” (Id.)
11.
Graziano’s Second Rule 41(b) Motion
On December 26, 2018, Graziano filed her Second Motion to Dismiss for Failure
to Prosecute (ECF No. 412), which was essentially an updated version of her previous
motion (see Part I.D.3, above). Two days later, the Court denied the motion, stating it
was “too soon to consider this form of relief. The Court administratively closed the case
only three months ago and the time has not yet come for even the first status report.”
(ECF No. 413.)
12.
Status Reports & Graziano’s Third Rule 41(b) Motion
On April 1, 2019, the Court received a status report from Wodiuk’s counsel.
(ECF No. 414.) The report stated that Wodiuk was still being involuntarily held at the
Fort Logan state hospital, but had “shown signs of improvement while the doctors
continue to adjust her medications.” (Id. at 1.)
On October 2, 2019, Wodiuk’s counsel filed another status report stating that
Wodiuk had some sort of hearing in her Pueblo court proceeding on July 24, 2019, and,
the next day, the state hospital discharged her to her own home. (ECF No. 415 at 1.)
However, Mr. Glatstein had “not been able to obtain information as to whether
Ms. Wodiuk has been determined to be mentally competent.” (Id.)
35
On October 18, 2019, Graziano filed her Third Motion to Dismiss for Failure to
Prosecute (ECF No. 418), i.e., the Rule 41(b) Motion currently at issue. In addition to
Graziano’s previous arguments for Rule 41(b) dismissal (as augmented by passage of
yet more time), Graziano interpreted Mr. Glatstein’s inability to learn anything
meaningful about Wodiuk’s condition since her discharge as demonstrating that Wodiuk
was refusing to cooperate with him. (Id. at 8, 11.)
Because the case was still administratively closed, there was nothing to dismiss,
technically speaking, but the Court construed the motion as one to reopen the case and
then to dismiss it under Rule 41(b). (ECF No. 419.) With that understanding, the Court
ordered Wodiuk’s counsel to respond. (Id.)
The response brief asserted that “the Pueblo County District Court determined [in
late October 2019] that Plaintiff remains mentally incompetent to proceed in her criminal
case.” (ECF No. 420 at 1.) As for the substance of the Rule 41(b) Motion, the response
asserted that the increased delay still had not created real prejudice to Graziano, and
that the delay was not due to Wodiuk’s willful conduct, but her mental illness. (Id. at
2, 3.)
The Court found the response brief inadequate to address the issues. Therefore,
on November 12, 2019, the Court ordered Wodiuk’s counsel to file a supplemental brief,
as follows:
Plaintiff is hereby on notice that the Court is seriously
considering granting Defendant’s motion, for essentially the
reasons argued by Defendant and/or because it is unclear
that this case will ever reach a resolution within a reasonable
timeframe. In that light, the Court ORDERS Plaintiff to file a
supplemental response with a declaration from the guardian
ad litem (“GAL”) addressing at least the following: (1) the
GAL’s current ability to communicate meaningfully with
36
Plaintiff; (2) the GAL’s understanding of Plaintiff’s current
situation (including her mental capacity, ongoing medical
care, living arrangements, and any other information that
would assist the Court in understanding Plaintiff’s
circumstances); and (3) the GAL’s estimate of when Plaintiff
will be in a position to resume litigating this case on the
merits.
(ECF No. 421.) The Court set a December 13, 2019 deadline for this brief. (Id.)
On the appointed deadline, Wodiuk’s counsel filed a supplemental brief. (ECF
No. 424.) The brief attaches a declaration from Mr. Glatstein reporting that he spoke
with Wodiuk by telephone. (ECF No. 424-1 ¶ 3.) During that conversation, Wodiuk
asserted that she was mentally competent and she would not produce any of her mental
health records, deeming that to be a violation of her medical privacy rights. (Id.)
Wodiuk also refused to provide Mr. Glatstein with any information about her living
arrangements, or any means of contacting her other than her telephone number and a
PO Box. (Id. ¶ 4.) “Based on [this] conversation and my past communications with
Ms. Wodiuk,” Mr. Glatstein reported that “I do not believe I have the current ability to
communicate meaningfully with Ms. Wodiuk.” (Id.)
Mr. Glatstein had nonetheless been able to obtain some records from Fort
Logan. According to that institution’s discharge summary, “Ms. Wodiuk demonstrated
‘much improved presentation’ toward the end of her hospitalization, but still had
‘apparent fixed delusions about Police, Courts etc.’” (Id. ¶ 5.) Finally, Mr. Glatstein
opined, “I believe that Ms. Wodiuk remains mentally incompetent. However, because of
Ms. Wodiuk’s refusal to cooperate, I cannot begin to gauge when she will become
mentally competent and capable of participating in this case in a meaningful way.” (Id.
¶ 7.)
On December 17, 2019, the Court issued an order reserving ruling on the Rule
37
41(b) Motion. (ECF No. 426.) “In these complicated circumstances,” the Court found
that “the best way forward [was] to attempt to complete the unfinished discovery and
then to evaluate the propriety of dismissal in that light.” (Id. at 1.) The Court then
ordered as follows:
Plaintiff is ORDERED to sit for a reopened deposition, as
authorized by the late Magistrate Judge Craig B. Shaffer
(see ECF No. 29), at a time mutually convenient to all
participating parties and attorneys, but in no event later than
February 14, 2020, and this deposition may cover the topics
for which it was authorized regardless of Plaintiff’s
abandonment, or willingness to abandon, the theories to
which Plaintiff believes those topics are relevant;
Plaintiff is ORDERED to submit to a Federal Rule of Civil
Procedure 35 examination, as authorized by Judge Shaffer
(see ECF No. 114), no later than February 14, 2020;
Plaintiff is hereby WARNED that failure to cooperate in the
scheduling of, or to meaningfully participate in, the reopened
deposition and/or the Rule 35 examination, shall be deemed
a basis in favor of granting the Rule 41(b) Motion;
If the foregoing discovery does not take place by February
14, 2020, Defendant shall file a status report with the Court
on February 17, 2020. Otherwise, no later than March 13,
2020, Defendant shall file a notice attaching: (i) the complete
transcript of Plaintiff’s original deposition; (ii) the complete
transcript of Plaintiff’s reopened deposition; and (iii) the
examiner’s report resulting from the Rule 35 examination.
The examiner’s report shall be filed under Restricted Access,
Level 1, and no motion to maintain that restriction is
necessary; and
The Guardian ad Litem shall ensure that a copy of this order
is promptly mailed to Plaintiff at her address on file (see ECF
No. 422).
(Id. at 1–2.)
13.
Attempts to Complete Discovery & Motions to Withdraw from Mr. Glantz,
Ms. Day, and Mr. Glatstein
The Court began receiving filings directly from Wodiuk again in early January
38
2020. Specifically, the Court received a “demand for relief: medical extortion in white
collar crimes, threats and terrorizing,” complaining that (among numerous other things)
Mr. Glatstein “still to this day has NEVER protected me” or “reported this medical
extortion and fraud to Medicaid, FBI or the Colorado attorney general’s office.” (ECF
No. 429 at 1–2.) The Court also received a “demand for relief: to unconstitutional
demands ordered against due process and pro se rights to legal counsel in such
guardian ad litem appointsments made as done in solicitation and organized crime
conspired in prohbited acts made in this case,” in which she complained about being
“forced to have a GAL Mr. Glatstein against all due process” and being “denied legal
counsel on her behalf.” (ECF No. 430 at 1.) In this same document, she asserted that
the requirement to sit for a deposition by February 14 was “this unconstitutional courts
unlawful demands” and that she would be “unable to meet any demand this court has
placed until proper legal counsel has been appointed.” (Id. at 2.) She also asserted
that Judge Shaffer did not have jurisdiction (as a magistrate judge) “to appoint any
mental health matters or GAL’s to this case.” (Id.) Finally, she asserted that
Mr. Glatstein “has acted in maliciousness in doing irreparable harm towards Dr. Wodiuk
and her legal rights and all that it encompasses.” (Id. at 3.)
On January 13, 2020, the Court entered an order striking these filings (because
Wodiuk is not a member of the bar of this Court nor, at that time, an unrepresented
party). (ECF No. 432.) The Court further
repeat[ed] its warning to Plaintiff “that failure to cooperate in
the scheduling of, or to meaningfully participate in, the
reopened deposition and/or the Rule 35 examination, shall
be deemed a basis in favor of granting Defendant’s Rule
41(b) Motion.” (ECF No. 426 ¶ 4.) In simpler terms, Plaintiff
must participate in good faith in the deposition and the
39
independent medical examination, and she must do so by
February 14, 2020, or the Court may dismiss this case.
(Id. at 2.)
Finally, the Court rejected Wodiuk’s attack on Judge Shaffer’s jurisdiction:
Magistrate Judge Shaffer was a duly appointed United
States Magistrate Judge and was exercising his jurisdiction
to enter orders on nondispositive matters as authorized by
28 U.S.C. § 636(b)(1)(A). If Plaintiff disagreed with those
orders, she had fourteen days to file an objection. See Fed.
R. Civ. P. 72(a). She never did so, and therefore forfeited
any challenge she may have had.
(Id.)
The Court directed the Clerk to mail a copy of this order to Wodiuk at her address
on file (id. at 3), and the Clerk entered a certificate of service by mail attesting to having
done so (ECF No. 433).
The filings continued to come, however. On January 14, 2020, the Court
received a “motion for: civil rights to be enforced and adheared to as well as a case
investigator to be appointed to this case.” (ECF No. 434.) The document asserts many
of her previous arguments, and also includes a lengthy attack on Messrs. Glantz and
Glatstein for “failing their obligatory duties to Dr. Wodiuk,” such as failing to protect her
in the Pueblo criminal proceeding, an eminent domain proceeding of some sort, a
habeas corpus proceeding, and aiding and abetting “the unlawful removal of my child
from this country in a Linderberg crime of kidnapping in 2018.” (Id. at 1–5.)
On January 21, 2020, the Court received a “demand for relief: unconstitutional
medical evalautions not noted on the record for who, what, where, when, how
Dr. Wodiuk is to be evaluated making this evaluation a witch hunt.” (ECF No. 436.)
This document notes a phone call with Mr. Glatstein on January 15, apparently about a
40
Rule 35 examination. (Id. at 1.) Wodiuk asserted that she “does not have to adhere to
any evaluations without an attorney representing her first and does not have to comply
with the white collar conspired and organized evaluator (doctor) until it is noted in a
hearing and placed on this courts records first. . . . Dr. Heidi Wodiuk is being forced to
get medical evaluations with the doctors that are NOT of Dr. Wodiuk’s choosing as
Dr. Wodiuk is entitled.” (Id. at 1–2.) Wodiuk also complained that Mr. Glatstein hung up
on her, and she accordingly speculated that he was “suffering serious medical and
mental problems as [he] is unable to hear Dr. Wodiuk legal concerns.” (Id. at 3.)
Also on January 21, 2020, the Court received from Graziano a Motion to Compel
or, in the Alternative, Motion to Request Ruling on Defendant’s Motion to Dismiss.
(ECF No. 437.) This motion reported that Graziano’s counsel had sent Wodiuk’s
counsel a Rule 35 notice of an independent psychological evaluation, and a few days
later, the psychologist retained to perform the evaluation informed Graziano’s counsel
that Wodiuk had contacted him directly, demanding a copy of the questions he plans to
ask and a copy of a “civil handbook for competency.” (Id. ¶¶ 12–13.) In this light, and in
light of her “demand for relief” filed earlier that day, Graziano believed that Wodiuk
would not meaningfully cooperate with the Rule 35 procedure. (Id. ¶ 20.) Graziano
suggested that the Court could compel Wodiuk to cooperate, or proceed directly to
adjudicating the Rule 41(b) Motion. (Id. ¶¶ 23–27.)
The Court denied this motion on January 22, 2020, stating that Wodiuk had twice
been warned about the need to cooperate and so there was no need for an additional
order to that effect. (ECF No. 438.) Moreover, the Court stated that it “sees no reason
to cut short Plaintiff’s February 14 deadline and move directly to the Rule 41(b)
41
dismissal analysis.” (Id.)
In the next couple of days, the Court received several more documents from
Wodiuk. These included a “motion for civil competency handbook and competency
questions to be produced and served to Dr. Wodiuk immediately” (ECF No. 439) and
copies of its six letters she had recently sent to either Mr. Glantz or Mr. Glatstein, or
both (ECF No. 442). As relevant here, these letters continue to display Wodiuk’s
antagonistic views toward Messrs. Glantz and Glatstein, for example:
•
“I therefore hold you Mr. Glantz along with Mr. Glatstein legally
responsible for the irreparable hardships’, losses’, damages’, cruel and
unusual pain and suffering, loss of liberty and life for 15CR1287 and this
case 14CV02931 as you have acted criminally in abusing your authorities
and power to harm my entire life by failing to act within the law as required
to do so in these legal matters’.” (ECF No. 442 at 1.)
•
“Cease and desist your crimes’ against me and all my rights.” (ECF No.
442-1 at 1.)
•
A bill to Mr. Glantz asserting that he owes Wodiuk $1,425,600 “within thirty
days.” (ECF No. 442-2 at 1.)
On January 23, 2020, Graziano filed a Motion for Extension of Time and for
Sanctions. (ECF No. 440.) This motion stated that the psychologist Graziano had
retained for the Rule 35 exam had withdrawn his willingness to do so based on phone
messages indicating “that performing this evaluation will be problematic if not
impossible.” (Id. ¶ 15.) The psychologist perceived some of these phone messages as
threatening. (Id. ¶ 16.) Graziano’s counsel went on to state that they had been unable
42
to secure another doctor to perform the examination by February 14, so Wodiuk’s
actions had deprived Graziano of the opportunity to complete discovery. (Id. ¶¶ 18–19.)
Also on January 23, 2020, Mr. Glantz and Ms. Day moved for leave to withdraw
as counsel, and also moved on Mr. Glatstein’s behalf to have him discharged as the
guardian ad litem. (ECF No. 441.) Mr. Glantz and Ms. Day justified their withdrawal
due to “professional considerations.” (Id. ¶ 8.) Mr. Glatstein justified his termination
because “he can no longer maintain a working relationship with Plaintiff.” (Id. ¶ 9.)
On January 27, 2020, the Court denied Graziano’s motion for an extension of
time and sanctions, noting that it “did not order Defendant to succeed in completing the
outstanding discovery. The Court ordered Defendant only to attempt to do so in good
faith. Plaintiff’s obstruction and non-cooperation has thus far created an additional
record in favor of Rule 41(b) dismissal, which the Court continues to contemplate.”
(ECF No. 443.) The Court directed the Clerk to mail a copy of that order to Wodiuk at
her address on file (id.), and the Clerk filed a certificate of service attesting to having
done so (ECF No. 445).
14.
Final Developments Before the Discovery Deadline
Between Graziano’s motion and the Court’s order denying it, and in the days
immediately after the Court’s order, the Court received yet more filings from Wodiuk.
(ECF Nos. 444, 446, 448, 449.) These documents are generally of the same character
as her previous filings. The only matters worth noting are that Wodiuk apparently
learned that Ms. Day had also entered an appearance on her behalf, so she began
criticizing Ms. Day as well (ECF No. 444 at 1; ECF No. 449), and Wodiuk asserted that
she would not allow herself to be evaluated by Graziano’s chosen psychologist (ECF
No. 446 at 1; ECF No. 448).
43
From February 5 to February 12, 2020, the Court received additional letters,
notices, and demands for relief from Wodiuk. (ECF Nos. 452, 453, 454, 457, 458, 459.)
The major points from these filings were that:
•
Wodiuk was writing to other doctors whom Graziano’s counsel had
apparently lined up to perform Rule 35 examinations, accusing these
doctors of, e.g., “white collar organized crime as well as racketeering.”
(ECF No. 452 at 1; see also ECF Nos. 452-2, 452-5; ECF No. 454 at 1.)
•
She continued to accuse Mr. Glatstein of mental illness. (ECF No. 452-4.)
•
She attacked Ms. Day as not properly representing her. (ECF No. 452-3;
ECF No. 454 at 4; ECF No. 459.)
•
She continued to assert that Mr. Glantz, Ms. Day, and Mr. Glatstein had
failed to protect her interests or meet her demands. (ECF No. 454 at 4–
7.)
•
She insisted that she had already “complied,” in substance, “with the off
the open record laws in a sedition order of rule 35 made in intimidation,
terrorism and organized crime,” because she had been “seen by legitimate
medical doctors numerous times to establish a working relationship
Dr. Wodiuk is highly capable of and can prove beyond a reasonable
doubt.” (ECF No. 458.)
On February 13, 2020, Mr. Glantz filed, on Wodiuk’s behalf, a motion for
extension of the February 14 deadline because Wodiuk had sent him a facsimile
transmission on the evening of February 12, claiming she had been “snowed in” and
“will not be getting out” to attend a rescheduled deposition and Rule 35 examination on
44
February 13. (ECF No. 455 at 1.)9
On February 14, 2020, the Court denied Wodiuk’s motion. (ECF No. 461.) The
Court stated that Wodiuk had been warned multiple times about the importance of the
February 14 deadline, and that the record so far showed that she had interfered with
attempts to depose her and conduct a Rule 35 exam in January. Therefore, “the fact
that the deposition and Rule 35 examination were scheduled so close to the February
14 deadline appears attributable largely to Plaintiff’s own obstructive behavior.” (Id.)
Moreover, Wodiuk had not described, e.g., the sort of vehicle she drives, the resources
she has at her own disposal to clear away snow, “and the various other details the
Court would need to know to ensure that this claim of being ‘snowed in’ is not another
convenient excuse to avoid her discovery obligations.” (Id.)
On February 18, 2020, Graziano filed a status report stating that no discovery
had taken place by the February 14 deadline. (ECF No. 462.) The status report details
essentially the narrative above regarding her counsel’s repeatedly frustrated efforts to
complete discovery.
On February 18 and 19, 2020, the Court received more letters and other filings
from Wodiuk showing that she continued to act antagonistically toward Mr. Glantz,
Ms. Day, and Mr. Glatstein, and that she continued to make demands on, and
accusations against, proposed Rule 35 examiners. (See ECF Nos. 463, 467.)
On February 20, 2020, the Court granted the motion to withdraw filed by
Mr. Glantz, Ms. Day, and Mr. Glatstein: “The record amply shows the Plaintiff exhibits
animosity toward, and distrust of, her attorneys, and will not allow them to represent her;
9
Several days later, Wodiuk filed with the Court a copy of the document faxed to
Mr. Glantz. (ECF No. 467 at 1–2.)
45
and that she actively resists the efforts of the guardian ad litem.” (ECF No. 464.) The
Court therefore returned Wodiuk to her pro se status. The Court also reopened the
case “to consider [Graziano’s Rule 41(b) Motion] on its merits,” and otherwise stayed all
proceedings. (ECF No. 465.) The Clerk served these orders by mail on Wodiuk. (ECF
No. 466.)
F.
Proceedings While Wodiuk Represented Herself (Third Time)
Between the Court’s February 20 order and now, Wodiuk has continued to file
letters, demands, and motions. (ECF Nos. 468, 469, 470, 471, 472, 473.) The only
new material in these filings is Wodiuk’s alleged discovery that Graziano has never
been a state-certified peace officer. (See ECF Nos. 469, 471–73.) “This appears to be
why the Colorado court judicial actors are acting so asininely idiotically stupid. Many of
these court actors may be on the black web obtaining illegal black market exchanges in
monies for this levy for war crime orchestrated on the USA and tax monies frauded to
front the Hitler Copy cat war crime.” (ECF No. 469 at 1.) None of Wodiuk’s filings
address the Rule 41(b) standards. 10
II. LEGAL STANDARD
Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed. R. Civ. P. 41(b).
“If the dismissal is with prejudice,” as the Court considers in this case, “the district
court must apply the factors [the Tenth Circuit] listed in Ehrenhaus v. Reynolds, 965
10
Although perhaps difficult to believe, the foregoing narrative is not a complete catalog
of everything Wodiuk has filed. The Court has skipped over (as not even remotely relevant)
ECF Nos. 63, 64, 71, 86, 113, 129, 141, 168, 169, 191, 196, 197, 200, 203, 205, 224, and 239.
46
F.2d 916 (10th Cir. 1992)—namely, (1) the degree of actual prejudice to the defendant;
(2) the amount of interference with the judicial process; (3) the litigant’s culpability;
(4) whether the court warned the noncomplying litigant that dismissal of the action was
a likely sanction; and (5) the efficacy of lesser sanctions.” Banks v. Katzenmeyer, 680
F. App’x 721, 724 (10th Cir. 2017) (internal quotation marks omitted).
Under this framework, “dismissal is warranted when ‘the aggravating factors
outweigh the judicial system’s strong predisposition to resolve cases on their merits.’”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007)
(quoting Ehrenhaus, 965 F.2d at 921). Moreover, “[t]hese factors do not constitute a
rigid test; rather, they represent criteria for the district court to consider prior to imposing
dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921.
III. ANALYSIS
The Court will examine the Ehrenhaus factors in sequence.
A.
Actual Prejudice to Defendant
Actual prejudice can include “delay and mounting attorney’s fees.” Ehrenhaus,
965 F.2d at 921. The delay in this case has been extensive: five-and-a-half years.
As for attorneys’ fees, the Court has no specific information from Graziano, but
the Court is confident that her attorneys are not working pro bono. Delay alone tends to
generate more fees the necessary. Added to that is the sheer volume of Wodiuk’s
filings, which Graziano’s attorneys were forced to review and decipher. Thus, Graziano
has suffered actual prejudice.
B.
Interference with the Judicial Process
Interference with the judicial process includes “wilfully fail[ing] to comply with a
direct court order.” Ehrenhaus, 965 F.2d at 921. The Court counts at least four
47
instances when Wodiuk disregarded or refused to comply with court orders:
•
Judge Shaffer’s November 2016 order that she cease filing motions while
the case was administratively closed (Part I.D.2, above);
•
Judge Shaffer’s similar, but more explicit, order to the same effect in
December 2016 (id.);
•
Judge Shaffer’s October 2017 order that she “may not filing anything”
while represented by counsel and a guardian ad litem (see Part I.E.3,
above), and
•
this Court’s order that Wodiuk sit for her renewed deposition, and for a
Rule 35 exam, on or before February 14, 2020 (Part I.E.13, above).
In addition to disobeying Court orders, the Court finds that Wodiuk has interfered
with the judicial process in other ways. Most notably, she has buried the Court and the
parties in an avalanche of frivolous filings, using this lawsuit as a megaphone through
which to complain about seemingly every grievance she possesses against anyone,
and to publicize her conspiracy theories. The amount of time spent by the Court and its
staff members simply processing and sifting through this mass of words has been
enormous.
Wodiuk has also displayed open disrespect for judicial officers. She has actively
subverted the attorneys whom the Court appointed to represent her pro bono. She has
similarly subverted the Court-appointed guardian ad litem. If the wheels-of-justice
metaphor has any meaning, she has managed to jam hundreds of wrenches into the
spokes.
In short, Wodiuk has caused incalculable interference with the judicial process.
48
C.
Plaintiff’s Culpability
Any discussion of Wodiuk’s culpability must start with whether she understands
what she is doing. Her most recent diagnosis from the state hospital is beyond
question: she suffers from fixed delusions about the police, courts, and other centers of
governmental authority, but she is otherwise capable of living in the community and
caring for herself. (See Part I.E.12, above.) She has previously been a licensed
acupuncturist. (See Part I.A.4, above.) Although Graziano has intended to challenge
Wodiuk’s damages claim about increased maintenance expenses of rental properties,
there has been no suggestion that she did not actually own or manage properties—
indeed, the basis of her Pueblo criminal prosecution was, among other things, that she
unlawfully placed Franti’s name on the deeds to multiple properties that she owns. (See
Part I.B.1, above.)
Wodiuk’s interactions with the Court are also important to consider. Without
doubt her written submissions are informed by her delusions, and are frequently
ungrammatical (often due to inserting as many inflammatory adjectives as she can think
of). However, when she has been ordered to appear in person, she has always done
so—and there is no suggestion in the record that her verbal interactions with Judge
Shaffer were incoherent, even if informed by delusions. There is also no suggestion
that she hallucinates about what is happening to her in the moment. Rather, she
processes what happens to her through the lens of her delusions and then acts (or at
least speaks) accordingly.
Finally, her filings—particularly those made after the Court ordered her to
cooperate in completing discovery by February 14—convince the Court that she fully
understood what was required of her and the consequences of not complying, but that
49
she feels entitled to make up her own rules. The Court especially notes her filing
received by the court on February 12, 2018, in which she claims to have already
complied with the Rule 35 order by visiting her own doctors (ECF No. 458); and her
attempt to excuse herself from appearing for her deposition and Rule 35 examination on
February 13, ostensibly due to heavy snow (ECF No. 455 at 1). These are the tactics of
someone who understands what is of expected her and is making a record to justify the
decision to disobey.
In short, Wodiuk has a serious mental illness, but it does not prevent her from
understanding the difference between obedience and disobedience, nor from choosing
between the two. For all these reasons, the Court finds that Wodiuk culpably violated
the Court’s orders. Cf. Ehrenhaus, 965 F.2d at 921 (“wil[l]ful and intentional
disobedience” enough to support a finding of culpability).
D.
Prior Warnings
The Court explicitly warned Wodiuk on three occasions that Rule 41(b) dismissal
was a possible outcome if she did not cooperate in completing discovery. (See ECF
Nos. 426, 432, 443.) Wodiuk’s filings subsequent to each of these orders show that she
received and understood these warnings.
E.
Efficacy of Lesser Sanctions
It is difficult to think of a lesser sanction that would be effective in this case. The
Court has already tried administrative closure, in hopes that the situation would
improve. Ordering Wodiuk (again) to sit for a deposition and a Rule 35 examination,
and (in addition) to pay Graziano’s attorneys’ fees incurred in the runaround since
December, would be futile in light of the record developed above. Striking her
deposition and then proceeding to trial would also be futile, although in a somewhat
50
different way—the outcome of the trial would be a foregone conclusion. A set of
adverse inference instructions tailored to the situation would almost certainly have the
same result. For example, consider the question of injury causation. What reasonable
jury is likely to find for Wodiuk if (a) it hears evidence that her claimed injuries may have
had a different source than the encounter with Graziano and (b) the Court instructs the
jury to take into account that Wodiuk refused to sit for an independent medical
examination regarding those injuries? In short, no sanction short of dismissal—to the
extent it can be distinguished from the practical equivalent of dismissal—appears
appropriate.
Moreover, the very exercise of considering lesser sanctions presumes that the
case can somehow go to trial. It cannot. The Court will not attempt to appoint pro bono
counsel again. The record shows that Wodiuk has taken an antagonistic relationship
toward every attorney assigned to represent her, whether in this case or in the Pueblo
criminal proceedings. For essentially the same reasons, the Court will not consider
appointing another guardian ad litem. Whatever competency means in a civil lawsuit,
Wodiuk has shown ample competency to interfere with every effort made to assist her.
Yet the case clearly cannot proceed with Wodiuk representing herself. Thus, this
is one of those extremely rare instances where, regardless of the merits, the process
required to resolve the case on the merits would devolve into a circus—ultimately
reducing confidence in the efficacy of the justice system, despite good intentions.
For all these reasons, the Court finds that no sanction short of dismissal will
suffice.
51
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Graziano’s Third Motion to Dismiss for Failure to Prosecute (ECF No. 418) is
GRANTED, and this case is accordingly DISMISSED WITH PREJUDICE;
2.
All pending motions, “demands for relief,” etc., filed by Plaintiff are DENIED;
3.
The Clerk shall enter judgment in favor of Defendant and against Plaintiff, and
shall terminate this case; and
4.
The Defendant shall have her costs upon compliance with D.C.COLO.LCivR
54.1.
Dated this 6th day of April, 2020.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
52
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