Brooks v. Colorado Department of Corrections et al

Filing 68

ORDER: For the reasons stated herein, the Court GRANTS the 52 55 Motions to Compel. Mr. Brooks shall have up to and including January 1, 2021 to serve his discovery responses. IT IS FURTHER ORDERED the 66 Motion to Amend the Scheduling Order de adlines is GRANTED as follows:Designation of Affirmative Experts are due 2/1/2021; Designation of Rebuttal Experts are due 3/1/2021; Written Discovery Deadline is 3/26/2021; Discovery closes on 4/26/2021; Dispositive Motions are due by 5/28/2021. IT IS FURTHER ORDERED the Final Pretrial Conference is RESET for 7/28/2021 at 09:30 AM in Courtroom C201 before Magistrate Judge S. Kato Crews. SO ORDERED by Magistrate Judge S. Kato Crews on 11/17/2020.(skclc1)

Case 1:18-cv-02578-PAB-SKC Document 68 Filed 11/17/20 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
U.S. Magistrate Judge S. Kato Crews
Civil Action No. 1:18-cv-02578-PAB-SKC
JASON BROOKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

ORDER RE: DEFENDANTS’ MOTIONS TO COMPEL [#52 & #55] AND MOTION TO
AMEND THE SCHEDULING ORDER [#66]

In October 2016, Plaintiff Jason Brooks, while incarcerated, injured his right knee.
[#28 at ¶1.] After anti-inflammatories were unsuccessful, he submitted a request to see a
doctor. [Id. at ¶3.] Dr. Tiona evaluated Brooks on several occasions; however, she did not
order an MRI, instead treating Brooks with a steroid injection and rehabilitative exercises.1
[Id. at ¶¶8-9, 15.] The Amended Complaint alleges Dr. Tiona failed to request an MRI
because of a contract between the Colorado Department of Corrections (“CDOC”) and
Correctional Heath Partners (“CHP”) which requires medical providers to pursue
“conservative therapy” before requesting an MRI. [Id. at ¶¶9-15.] Brooks asserts Dr. Tiona
was deliberately indifferent to his serious medical need in violation of the Eighth

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When Dr. Tiona ultimately ordered an MRI, it revealed a sprain of the ACL, a ligament
tear, and degenerative arthritis. [Id. at ¶21.] Brooks had arthroscopic surgery to repair the
tear; however, according to a medical specialist, he will ultimately need knee replacement
surgery. [Id. at ¶25.]
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Amendment.2 [#28.] He also contends CHP and Jeff Archambeau (collectively “CHP
Defendants”) engaged in a civil conspiracy to deprive Brooks of adequate medical care
and to incentivize cost savings over the health and well-being of inmates in the CDOC.
[#31.]
The parties commenced discovery in October 2019 [#45] and were granted
multiple extensions of the discovery deadlines. [#48, #54.] In the wake of the COVID-19
outbreak, the discovery process has apparently come to a complete standstill, on account
of closures, difficulties communicating, difficulties obtaining documents, and Brooks’
limited access to the correctional facility’s law library. [#50, #59.] The CHP Defendants
and Dr. Tiona filed respective motions to compel discovery responses from Brooks,
stating he failed to timely respond to their written discovery requests [#52, #55].
Thereafter, Brooks filed an untimely Response. [#59.] In addition, the Defendants have
requested the discovery deadlines be extended to allow the parties to finish discovery.
[#66.] For the following reasons the Court GRANTS these motions.
STANDARDS OF REVIEW
The scope of discovery in federal court is broad. Federal Rule of Civil Procedure
26 permits discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense, while the proportional needs of the case serve as guardrails for further
reasonably tailoring the scope of discovery. Fed. R. Civ. P. 26(b)(1). “Information within
this scope of discovery need not be admissible in evidence to be discoverable.” Id.
Rule 37 of the Federal Rules of Civil Procedure provides that “[a] party seeking
discovery may move for an order compelling…production” if the other party fails to

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Brooks’ remaining claims against Dr. Tiona have been dismissed. [#40]
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produce requested information. Fed. R. Civ. P. 37(a)(3)(B). The moving party bears the
burden of proof. EchoStar Commc’ns. Corp. v. News Corp., 180 F.R.D. 391, 394 (D. Colo.
1998). The moving party must prove the opposing party’s responses are incomplete.
Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976); Equal Rights Ctr.
v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007). Additionally, when the relevance of
a discovery request is not apparent on the face of the request, the proponent bears the
burden of making an initial showing of relevance. See Thompson v. Jiffy Lube Int’l, Inc.,
No. 05–1203–WEB, 2007 WL 608343, at *8 n.20 (D. Kan. Feb. 22, 2007).
ANALYSIS
A.

Motions to Compel
On October 24, 2019, the CHP Defendants sent Brooks their first set of written

discovery requests, consisting of interrogatories and requests for production of
documents. [#52.] Following an inquiry from CHP’s counsel, Brooks sent a letter on
January 12, 2020, stating the discovery requests had been “lost,” “destroyed,” and/or
“mysteriously disappeared.” [#52-4.] CHP Defendants re-served the discovery requests
on January 27, 2020, making the responses due on or about March 1, 2020. [#52.] Brooks
again did not answer the discovery requests. The CHP Defendants filed their Motion to
Compel on March 27, 2020.
Similarly, on March 5, 2020, Dr. Tiona sent Brooks her first set of written discovery.
[#55.] The answers to the interrogatories and requests for production were due on April
6, 2020. After Brooks failed to respond, defense counsel sent a letter to Brooks regarding
the outstanding discovery requests. [#55-1.] On April 26, 2020, Brooks sent defense
counsel a letter stating his access to legal services at Sterling Correctional Facility was

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curtailed, making litigation “nearly impossible.” [#55-2.] He also informed counsel he did
not intend to respond to Dr. Tiona’s discovery unless certain CDOC policies were
eliminated. [Id.] Dr. Tiona filed her Motion to Compel on May 13, 2020. The responses to
these motions were due on April 20 and June 3, 2020, respectively. Brooks did not
respond to these motions until after the Defendants filed Notices regarding his failure to
respond. [#59.]
In his Response, Brooks does not offer substantive challenges to the Motions to
Compel. He does not argue the discovery requests are irrelevant or overly broad; rather,
he states Sterling Correctional Facility (“SCF” where he is currently housed) has
experienced a large outbreak of COVID-19 and he was diagnosed with COVID-19 on May
21, 2020. He alleges on March 25, 2020, SCF went into “lockdown” and his library access
was suspended. According to Brooks, the only way inmates can receive legal research is
sending a request for these materials through the prison mail system. In addition, Brooks
cites SCF’s “arbitrary” copying policy as preventing him from submitting copies to the
Court and contends that being forced to handwrite his legal filings is “unnecessarily
draconian.” Brooks also filed a Response [#65] to Dr. Tiona’s Status Report [#64].
Therein, he states he cannot be expected to proceed without access to “thousands of
hours of drafted documents” currently saved on the SCF library computers. He concludes
by stating discovery will have to be stayed indefinitely unless the CDOC’s obstructions
cease. The Court is not persuaded by these descriptions of Brooks’ circumstances.
First, although Brooks has cited the outbreak of COVID-19, his diagnosis, and his
limited access to the library, none of these reasons explain why Brooks was unable
complete the discovery requests at the time they were due. The lockdown regarding

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COVID-19 began March 25, 2020. His CHP discovery responses were due before then.
Further, according to the library records, Brooks continued to access the library multiple
times from the beginning of March 2020 until the library’s physical closure on April 15,
2020. [#64-4.] During this time, Brooks would presumably have had access to the library
computers and his written documents. Given that Brooks’ arguments are only relevant to
a time after his responses were already due, the Court concludes the Defendants’
Motions should be GRANTED on this basis alone.
Even considering Brooks’ remaining arguments regarding copies, library and
computer access, and the necessity of handwriting, the Court still concludes Brooks must
respond to Defendants’ written discovery requests to the best of his ability.  
It is well-established that a prison inmate has a constitutional right of access to the
courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). The right to access the courts “is ‘only
[the right] to present ... grievances to the courts,’ and does not require prison
administrators to supply resources guaranteeing inmates’ ability ‘to litigate effectively
once in court’ or to ‘conduct generalized research.’” Brooks v. Colorado Department of
Corrections, 730 F. App’x, 628, 632 (10th Cir. 2018) (quoting Lewis v. Casey, 518 U.S.
343, 354, 60 (1996)). Furthermore, “[a] prisoner’s right of access to the court does not
include the right of free unlimited access to a photocopying machine, particularly when ...
there are suitable alternatives.” Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir. 1980).
In his Responses, Brooks contends the CDOC’s photocopy and printing
restrictions are arbitrary and obstructive and that the legal access provided by the CDOC
is a sham. [#65 at p.3.] What he does not do, however, is offer specific facts
demonstrating he has suffered a First Amendment violation. Although he generally

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alleges he has no reasonable access to copies, Brooks fails to elucidate on what
“reasonable” means. He has not stated why his requests for copies were denied, nor has
he described SCF’s specific copy limitations. He also has not stated whether he had the
financial resources to pay for these copies and printings, or what particular filings or
discovery responses he was prevented from finishing. To be sure, in his Notice of First
Amendment Obstructions, Brooks specifically stated he would not “reassert arguments
explaining how and why the Defendants legal access policies violate his First Amendment
rights.” [#49 at p.1.]
This particular strategy is problematic because “as Brooks knows from [the Tenth
Circuit’s decisions] in his …appeal[s], to state a claim for denial of the constitutional right
of access to the courts he [is] required to allege more than that the prison library or legal
access policies are ‘subpar in some theoretical sense.’” Brooks v. Colorado Department
of Corrections, 762 F. App’x 551, 558 (10th Cir. 2019) (citing Brooks, 730 F. App’x at 63132). Without more, the Court concludes Brooks’ arguments regarding the printing and
copying policies are too vague to establish any First Amendment violation and do not
justify his failure to respond to discovery.
With respect to handwriting his papers, Brooks, citing Johnson v. Parke, 642 F.2d
377, 379-80 (10th Cir. 1981) (per curiam), argues being forced to handwrite motions is
“needlessly draconian.” This is an inaccurate and overly broad reading of Johnson. In that
case, the Tenth Circuit found a blanket denial of required copies despite an inmate’s offer
to pay, to be unconstitutional “to the degree that it makes it very difficult or impossible for
an inmate to satisfy the filing requirements of the federal courts.” Id. at 380. Again,
because Brooks has not specifically alleged the circumstance underlying SCF’s limitation

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on his copies and printing, or that he had money and was willing to pay for copies but was
denied, Johnson is inapplicable.
Further, the issue here is not the filing of multiple court-required copies, nor does
this Court require Brooks’ submissions to be typewritten. See Holt v. Werholtz, 185 F.
App’x 737, 740 (10th Cir. 2006) (handwriting copies of court documents is a reasonable
alternative to photocopying court documents when a court does not require typed
documents). The issue in this instance is answering discovery. If Brooks is concerned
about the monetary implications of making multiple copies or worries about writing out
multiple copies of his discovery answers, the Court can alleviate that concern. Brooks
may file any discovery responses or other documents requiring multiple copies with the
Court as a way of serving all the Defendants without the necessity of photocopies, multiple
printings, or sending correspondence to the Defendants individually.
The Court finds Brooks’ other arguments to be similarly deficient. Although Brooks
protests his current library access, it is clear he is not being denied all access to the
library. Rather, he simply would like improved access. “[T]he constitutional obligation to
provide inmates access to courts does not require states to give inmates unlimited access
to a law library, and inmates do not have the right to select the method by which access
will be provided.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam)
(citation omitted).3 And with respect to accessing his documents currently saved on the
library computers, it is clear correctional facility librarians and staff are able to review

3

In passing, Brooks argues it is unconstitutional to require inmates to request needed
materials by exact citation. But his caselaw support for this proposition is from another
district, and Brooks has not alleged he is required to do that in this instance. The Court
has reviewed the Administrative Regulation governing legal access and could find no
indication the CDOC has such a stringent requirement.
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materials saved on these computers and print those documents that comply with the
Legal Access Program Policy. Colorado Department of Corrections AR 750-01 at p.18
(“The facility assistant will review the documents before printing to ensure they comply
with program policy,”); see also Brooks, 730 F. App’x. at 629. Brooks has neither alleged
he requested these materials be printed for him, nor that the facility has a blanket denial
policy for such requests.
With respect to the interrogatories, much of the information requested concerns
facts that should be within Brooks’ personal knowledge. He should answer these
interrogatories to the best of his ability. If he is unable to access any of his documentary
evidence due to limited library access, or is unable to copy his documentary evidence in
response to the requests for production, he should describe where the materials are
located and describe them and their contents with specificity.
For the foregoing reasons, the CHP Defendants’ and Dr. Tiona’s Motions to
Compel are GRANTED. Brooks shall file his responses to the written discovery requests
on or before January 1, 2021. The Court informs Brooks that should he continue to decline
participation in the discovery process, he risks having his case dismissed for failure to
prosecute.
B.

Motion to Amend Deadlines
The Defendants jointly request the remaining deadlines in this case be amended.

Given the Court’s above Order, the Motion is GRANTED. The discovery and pretrial
deadlines are amended as follows:


Affirmative Expert Disclosures are due February 1, 2021



Rebuttal Expert Disclosures are due March 1, 2021

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

Written Discovery Deadline is extended to March 26, 2021



Discovery Cut-off is extended to April 26, 2021



Dispositive Motions are due May 28, 2021



The Final Pretrial Conference is RESET for July 28, 2021 at 9:30 AM.
*

*

*

For the foregoing reasons, the CHP Defendants’ and Dr. Tiona’s Motions to
Compel are GRANTED. Mr. Brooks shall have until January 1, 2021, to respond to the
written discovery requests.
IT IS FURTHER ORDERED the deadlines in this case are amended as stated
above.
IT IS FURTHER ORDERED Mr. Brooks,  his counselor, and/or the individual
responsible for scheduling shall arrange for Mr. Brooks' telephonic participation in the
Final Pretrial Conference by calling 303.335.2124 at the scheduled time.

DATED: November 17, 2020.
BY THE COURT:

S. Kato Crews
United States Magistrate Judge

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