Calbart v. Colorado Dept of Corrections et al
MINUTE ORDER denying without prejudice 21 Plaintiff's Motion to Amend Compensatory and Punitive Damages; denying without prejudice 23 Plaintiff's Motion Requesting to be Move[d] to a Medical Facility; denying 26 Plaintiff['s)]1st Request for Production of Documents ; denying 27 Plaintiff's Motion to be Examin[d] by a[n] Outside Provider. By Magistrate Judge Michael J. Watanabe on 3/2/2016.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02220-MJW
ERNIE L CALBERT,
TRISHA KAUTZ, N.P., In Her Individual Capacity,
Entered by Magistrate Judge Michael J. Watanabe
This matter is before the Court on four filings submitted by Plaintiff (Docket Nos.
21, 23, 26 & 27.)
First, Plaintiff’s Motion to Amend Compensatory and Punitive Damages (Docket
No. 21) appears to seek leave of the Court to amend Plaintiff’s request for relief in his
Amended Complaint (Docket No. 12). This motion does not comply with
D.C.COLO.LCiv R 15.1, which requires that a motion to amend a complaint filed
pursuant to Fed. R. Civ. P. 15 include as an attachment the proposed second amended
complaint. Plaintiff cannot amend portions of his Amended Complaint without filing a
motion requesting permission to amend that attaches a proposed second amended
complaint reflecting those changes. The proposed second amended complaint must
include all allegations against all defendants, all claims, and all requests for relief.
Accordingly, it is hereby ORDERED that Plaintiff’s Motion to Amend Compensatory and
Punitive Damages (Docket No. 21) is DENIED without prejudice.
Second, Plaintiff’s Motion Requesting to be Move[d] to a Medical Facility (Docket
No. 23) asks that the Court order Plaintiff be moved to a different facility where he
believes he will receive better medical care. In short, Plaintiff is seeking a preliminary
injunction. To succeed on a motion for a preliminary injunction under Fed.R.Civ.P. 65,
the moving party must show (1) a likelihood of success on the merits; (2) a likelihood
that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in the movant's favor; and (4) that the injunction is in the
public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “[B]ecause a
preliminary injunction is an extraordinary remedy, the right to relief must be clear and
unequivocal.” Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067,
1070 (10th Cir. 2009) (quoting Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250,
1256 (10th Cir. 2003)) (internal quotations omitted). Granting such “drastic relief,”
United States ex. rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter Mgmt.
Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), “is the exception rather than
the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). Plaintiff’s onepage motion simply notes that he submitted many medical requests and has not
received responses. His unsubstantiated allegations do not meet the standard for a
preliminary injunction. As a result, it is hereby ORDERED that Plaintiff’s Motion
Requesting to be Move[d] to a Medical Facility (Docket No. 23) is DENIED without
Third, a document titled “Plaintiff[’s] 1st Request for Production of Documents”
(Docket No. 26) was docketed as a motion. However, this is a discovery request
directed at Defendant, not a motion. Accordingly, to the extent that the Court must rule
on the document, it is hereby ORDERED that Plaintiff[’s] 1st Request for Production of
Documents (Docket No. 26) is DENIED.
Fourth, Plaintiff’s Motion to be Examin[d] by a[n] Outside Provider (Docket No.
27) was filed on January 4, 2016 and states: Sterling Medical Dept. has a[n]
appointment in Jan 16 to see the Defendant Kautz N.P. to determine if I have mobility
disability this is a conflict of interest.” (Docket No. 27 at 1.) Pursuant to Fed. R. Civ. P.
6, a motion is a “request for a court order . . . .” This document is not a motion because
it requests no relief. Accordingly, to the extent that the Court must rule on the
document, it is hereby ORDERED that Plaintiff’s Motion to be Examin[d] by a[n] Outside
Provider (Docket No. 27) is DENIED.
Date: March 2, 2016
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