Zunogama v. Raemisch et al

Filing 33

ORDER by Magistrate Judge Kristen L. Mix on 4/27/15. Motion to Amend Complaint # 28 is DENIED without prejudice. IT IS FURTHER ORDERED that the obligations stated in the Order to Show Cause entered on April 1, 2015 [#27] are DISCHARGED.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03013-KLM
SALVADOR ZUNOGAMA,
Plaintiff,
v.
JOSEPH M. VIGIL, in his individual capacity,
CORRECTIONAL OFFICER MATEO, in his individual capacity, and
CORRECTIONAL OFFICER APODACA, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Amend Complaint [#28]1
(the “Motion”). On February 17, 2015, the Court ordered the Office of Legal Services of the
Colorado Department of Corrections (“CDOC”) to
either (1) file a declaration or sworn affidavit stating that the information
regarding Defendant Mateo (last name unknown) is insufficient to identify the
individual or (2) if the information is sufficient to identify the individual, provide
the Clerk of the Court with either a mailing address or a waiver of service for
this individual.
Minute Order [#20] at 2. On March 12, 2015, the Affidavit of Teresa Reynolds [#21] (the
“Reynolds Affidavit”) was filed. The Reynolds Affidavit stated that on March 4, 2014,
Plaintiff was escorted by two officers: Joseph Vigil and James Nick Martin. Id. ¶ 8.

1

“[#28]” 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 Order.

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In Plaintiff’s Response to Affidavit of Teresa Reynolds [#25] (the “Response”),
Plaintiff states that he “does not believe that James Nick Martin is in fact that person named
Mateo as stated in the claim.” Response [#25] at 1. Plaintiff further states that
[]the officer involved in the escort was wearing a name badge with Mateo or
alternatively Matthew. If Defendants seek to name James Nick Martin as the
officer named Mateo and assert that that is the name on the badge of the
officer, then Plaintiff requests this Court ORDER Defendants provide
documentation in support of this allegation.
[ ] Until the identity of the person named in the Complaint as Correctional
Officer Mateo is clearly identified, Plaintiff requests this Court refer to this
officer in the proceedings as Correctional Officer “DOE”.
[ ] Plaintiff also requests this Court issue an ORDER directing Defendants to
provide copies of the reports relied upon, staff post logs, and any other
information used to come to their conclusions.
Id. at 2 (emphasis in original).
On April 1, 2015, the Court entered a Minute Order informing Plaintiff that,
in certain instances, defendants are named as “John Does.” See Response
[#25] at 2. However, the Court cannot sua sponte amend Plaintiff’s
Complaint for him. If Plaintiff is seeking leave to file an amended complaint,
he must file a motion which complies with the federal and local rules, namely,
Fed. R. Civ. P. 15, and which includes the proposed amended complaint as
a document separate from the motion. The Court will not permit piecemeal
adjudication of Plaintiff’s case, thus Plaintiff must include all claims he seeks
to bring and defendants he intends to name in the proposed amended
complaint. Furthermore, Plaintiff must use the form complaint prescribed by
this Court. D.C.COLO.LCivR 5.1(c). In addition, if Plaintiff seeks leave to
amend his Complaint, his proposed amended complaint must take into
account the Court’s dismissal of all claims asserted against Rick Raemisch
and Ed Caley and the official capacity claims asserted against all
Defendants. See Order to Dismiss in Part and Draw Case [#13] at 4.
Minute Order [#26] at 3. Because his Response also appeared to request discovery from
Defendants, the Court informed Plaintiff that
to the extent the Response asks the Court to order Defendants or the CDOC
to produce documents to him, that request for relief must be made by motion.
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Further, there are specific rules that govern discovery in lawsuits. The Court
has not yet entered a Scheduling Order governing discovery in this case and
this case is exempt from the initial disclosures discussed in Fed. R. Civ. P.
26(a)(1). See Fed. R. Civ. P. 26(a)(1)(B)(iv). Accordingly, if Plaintiff would
like to request discovery of information relating to the individual he believes
is named Mateo who allegedly escorted him on March 4, 2014, he must file
a motion requesting that relief and provide a legal basis for that motion.
D.C.COLO.LCivR 7.1(d). However, Plaintiff should be aware that a motion
seeking early discovery is likely to be denied if the Complaint is subject to
dismissal on other grounds. See SunLust Pictures, LLC v. Doe, No. 12-cv00656-CMA-KMT, 2012 WL 975828, at *1 (D. Colo. March 22, 2012) (citing
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Tracfone Wireless,
Inc. v. Access Telecom., Inc., 642 F.Supp.2d 1354, 1361 (S.D. Fla. 2009)).
Id.
On April 1, 2015, the Court also entered an Order to Show Cause ordering Plaintiff
to either file a motion seeking leave to amend his Complaint or to provide identifying
information regarding Defendant Mateo. Order to Show Cause [#27] at 3.
In the Motion, Plaintiff notes that he is responding to the Order to Show Cause.
Motion [#27] at 1. Plaintiff states that he “requests leave to amend the named party of
Correctional Officer Mateo to Correctional Officer ‘Doe’ until such time as the party can be
properly established.” Id. In support of this request Plaintiff states that “James Nick Martin
was the acting Lieutenant during the incident and was not the escorting officer. [ ] The
officer believed to be “Mateo” . . . was the Sergeant on duty.” Id. at 2. As explained in the
Court’s April 1, 2015 Minute Order,
If Plaintiff is seeking leave to file an amended complaint, he must file a
motion which complies with the federal and local rules, namely, Fed. R. Civ.
P. 15, and which includes the proposed amended complaint as a
document separate from the motion. The Court will not permit piecemeal
adjudication of Plaintiff’s case, thus Plaintiff must include all claims he seeks
to bring and defendants he intends to name in the proposed amended
complaint. Furthermore, Plaintiff must use the form complaint prescribed by
this Court. D.C.COLO.LCivR 5.1(c). In addition, if Plaintiff seeks leave to
amend his Complaint, his proposed amended complaint must take into
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account the Court’s dismissal of all claims asserted against Rick Raemisch
and Ed Caley and the official capacity claims asserted against all
Defendants. See Order to Dismiss in Part and Draw Case [#13] at 4.
Minute Order [#26] at 3 (emphasis added). Therefore, to the extent Plaintiff would like to
amend his Complaint, he must file: (1) a motion seeking leave to amend (2) with an
attached proposed Amended Complaint that includes all claims and defendants he wishes
to include in that Amended Complaint. The Court will not construct an operative complaint
in a case that takes into account information from multiple filings such as the Complaint and
Motion filed in this case. To do so would be burdensome on the Court and Defendants and
would not comply with Fed. R. Civ. P. 8, which requires that a plaintiff state his claims in
“a pleading.” Fed. R. Civ. P. 8(a). Because Plaintiff has not provided his proposed
Amended Complaint, the Court denies the Motion without prejudice to the extent it seeks
leave to amend the Complaint. Denial without prejudice means that Plaintiff can file
another motion requesting permission to amend his Complaint that explains the basis for
the requested relief and attaches his proposed Amended Complaint.
In the Motion, Plaintiff also “requests [that] this Court issue an ORDER directing
Defendants to provide copies of the reports relied upon, staff post logs, and any other
information used to come to their conclusions.” Motion [#28] at 2. In its April 1, 2015
Minute Order the Court explained that,
there are specific rules that govern discovery in lawsuits. The Court has not
yet entered a Scheduling Order governing discovery in this case and this
case is exempt from the initial disclosures discussed in Fed. R. Civ. P.
26(a)(1). See Fed. R. Civ. P. 26(a)(1)(B)(iv). Accordingly, if Plaintiff would
like to request discovery of information relating to the individual he believes
is named Mateo who allegedly escorted him on March 4, 2014, he must file
a motion requesting that relief and provide a legal basis for that motion.
D.C.COLO.LCivR 7.1(d). However, Plaintiff should be aware that a motion
seeking early discovery is likely to be denied if the Complaint is subject to
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dismissal on other grounds. See SunLust Pictures, LLC v. Doe, No. 12-cv00656-CMA-KMT, 2012 WL 975828, at *1 (D. Colo. March 22, 2012) (citing
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Tracfone Wireless,
Inc. v. Access Telecom., Inc., 642 F.Supp.2d 1354, 1361 (S.D. Fla. 2009)).
Minute Order [#26] at 3. Because the Court denies without prejudice the Motion to the
extent Plaintiff seeks permission to amend his Complaint, the Court also denies Plaintiff’s
request for early discovery without prejudice at this time. Requesting early discovery
regarding the identity of a John Doe individual is premature at this time because Plaintiff
is still attempting to amend his claims. Plaintiff may file a motion requesting early discovery
after the Court has ruled on any future motion seeking leave to amend the Complaint.
However, as instructed by the Court in its April 1, 2015 Minute Order, if Plaintiff files such
a motion, he must provide a legal basis for the requested relief. Id.
Therefore, for the reasons stated above,
IT IS HEREBY ORDERED that the Motion [#28] is DENIED without prejudice.
IT IS FURTHER ORDERED that, if Plaintiff wishes to amend his Complaint, he must
file a motion requesting that relief that complies with all applicable rules and attaches a
proposed Amended Complaint on or before May 22, 2015. If Plaintiff does not seek
leave to amend his Complaint by this deadline, the Court will recommend that his
claims against Defendant Mateo be dismissed pursuant to Fed. R. Civ. P. 4(m) &
41(b), as discussed in the Order to Show Cause [#27].
IT IS FURTHER ORDERED that the obligations stated in the Order to Show Cause

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entered on April 1, 2015 [#27] are DISCHARGED.
Dated: April 27, 2015

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