Williams v. Denver Sheriff's Department et al.

Filing 40

ORDER granting 37 Plaintiffs Second Motion for Additional Time to Subpoena Records to Identify John Doe #1 ; granting in part and denying in part 38 Plaintiffs Motion For Issuance Of Subpoena For The Production Of Documents Pursuant To Federal Rules Of Civil Procedure 45, by Magistrate Judge Scott T. Varholak on 11/18/2020.(jgonz, )

Case 1:19-cv-03661-RM-STV Document 40 Filed 11/18/20 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-03661-RM-STV
DARRON WILLIAMS,
Plaintiff,
v.
JOHN DOE #1, MAINTENANCE WORKER
Defendant.

ORDER
Magistrate Judge Scott T. Varholak
This civil action is before the court on Plaintiff’s Second Motion for Additional
Time to Subpoena Records to Identify John Doe #1 [#37] and Motion For Issuance Of
Subpoena For The Production Of Documents Pursuant To Federal Rules Of Civil
Procedure 45. [#38] Through the Motions, Plaintiff requests a 45 day extension to file
his third amended complaint and for the Court issue subpoenas for the production of
documents from Sergeant Tony Lopez, Jr. and Executive Director of Human Resources
Karen Niparko, both of the Denver County Sheriff’s Office. [Id.] This Court has carefully
considered the Motions and related briefing, the case file and the applicable case law.
For the following reasons, the Motion for Additional Time [#37] is GRANTED and the
Motion to Issue Subpoena [#38] is GRANTED in part and DENIED in part.

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I.

BACKGROUND1
On March 28, 2018, while Plaintiff was incarcerated at the Denver County Jail,

John Doe #1, a maintenance worker at the jail, responded to a work order in Plaintiff’s
cell.

[#22 ¶¶ 13, 15]

While there, John Doe #1 fondled Plaintiff’s genitalia and

attempted to masturbate him. [Id. at ¶ 16] On April 2, 2018, John Doe #1 saw Plaintiff
and instructed Plaintiff to put in a request to be moved to a single cell and then to
submit a work order. [Id. at ¶¶ 18-19] John Doe #1 again went to Plaintiff’s cell on May
24, 2018 to fulfill a work order; during the visit he “aggressively shoved his hands in
[Plaintiff’s] pants and told [Plaintiff] that he wanted to see his ‘junk’ ‘rock hard,’” as well
as attempting to get Plaintiff to touch John Doe’s genitals. [Id. at ¶¶ 20-22]
Plaintiff was later moved from the Denver County Jail to the Colorado
Department of Corrections, where he submitted a sexual assault complaint pursuant to
the Prisoner Rape Elimination Act (“PREA”). [Id. at ¶¶ 23-24] Plaintiff subsequently
identified John Doe #1 in a photo lineup, but was informed by prison investigators that
John Doe #1 no longer worked for the Sheriff’s Department and therefore could not be
punished. [Id. at ¶¶ 28-30]
Plaintiff filed the instant civil lawsuit on December 23, 2019. [#1] The Second
Amended Complaint asserts Eighth and Fourteenth Amendment Claims under section
1983 against John Doe #1.2 [#22 at ¶¶ 31-76] On August 8, 2020 the Court issued an
Order to Show Cause instructing Plaintiff to file a Third Amended Complaint by
The Court draws factual allegations from the operative complaint—Plaintiff’s Second
Amended Complaint [#22]—to provide context for the instant Motion.
2
The Second Amended Complaint also asserted claims against John Doe #2 and John
Doe #3, who were dismissed from the action by the Court on July 14, 2020. [## 24, 25]
1

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September 15, 2020. [#30] Plaintiff failed to file a complaint by that date and the Court
issued a Recommendation of Dismissal for failure to prosecute. [#31] On September
28, 2020, Plaintiff filed Motions for additional time and for the issuance of a subpoena.
[## 32, 33]

The Court thereafter granted the extension of time, withdrew the

Recommendation of Dismissal, and

granted Plaintiff leave to file a motion for the

issuance of subpoena’s through the U.S. Marshal Service.

[#35]

The Court also

warned Plaintiff that failure to file an Amended Complaint by November 16, 2020 or
failure to comply with Court orders would result in dismissal of the action. [Id.]
On November 16, 2020, Plaintiff filed the instant motions seeking a further
extension of time to identify John Doe #1 and file a Third Amended Complaint and
requesting the Court issue two subpoenas. [## 37, 38]
II.

ANALYSIS
A. Motion for Additional Time
Plaintiff first seeks a further 45 day extension of time to identify John Doe #1 and

file a Third Amended Complaint. [#37] The Court granted Plaintiff leave to file a motion
for issuance of a subpoena in order to obtain information about John Doe #1, and
provided detailed instructions for the content of that motion, more than 45 days ago, yet
Plaintiff failed to take any action until the day the deadline expired. The Court notes that
the Motion for Additional Time does not include any explanation for why Plaintiff has yet
to identify John Doe #1, nor an explanation of what steps Plaintiff has taken to
accomplish that task during the previous extension.

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Nevertheless, the Court GRANTS Plaintiff’s [#37] Motion for 45 days of additional
time to file a third amended complaint that identifies and provides an address for service
upon John Doe #1. The Court cautions Plaintiff that further extensions will only be
granted upon good cause shown why the complaint should not be dismissed for failure
to conduct a reasonable and timely inquiry into the identity of Defendant John Doe #1.
B. Motion for Subpoena
Plaintiff next seeks, in [#38] Motion for Issuance of Subpoena for the production
of documents to be issued and served upon Sergeant Tony Lopez, Jr. and Executive
Director of Human Resources Karen Niparko, both of the Denver County Sheriff’s
Office.
Pursuant to Rule 45(b)(1), “[s]erving a subpoena requires delivering a copy to the
named person.” Because Plaintiff is incarcerated and proceeding in forma pauperis,
any subpoena requested by Plaintiff will have to be served by the United States
Marshal. In order to ensure the proper and efficient expenditure of the Court’s and the
Marshal’s resources, courts in this District have been unwilling to issue blank, signed
subpoena forms when those subpoenas will have to be served by the Marshal. See,
e.g., Richardson v. Ricard, No. 09-cv-01609-REB-MEH, 2010 WL 1957215, at *2 (D.
Colo. May 13, 2010); Mauchlin v. Bier, No. 07-cv-02593-CMA-MEH, 2009 WL 1384136,
at *1 (D. Colo. May 12, 2009); Pinson v. Revell, No. 08-cv-01023-MSK-BNB, 2008 WL
5233592, at *1 (D. Colo. Dec. 15, 2008). Instead, these courts have required the party
to submit a request for subpoena that includes the following information:
(1) the name and address of the witness(es) he wishes to subpoena, and
(2) a detailed explanation of the purpose of the subpoena, including
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whether he is seeking to take testimony from the witness or whether he is
seeking production of documents from the witness, or both. If the plaintiff
is seeking to take testimony from the witness, he must describe the
subject matter he wishes to cover and explain why the testimony sought is
relevant or reasonably calculated to lead to the discovery of admissible
evidence. Fed. R. Civ. P. 2[6](b)(1). If the plaintiff is seeking production
of documents, he must describe the documents with specificity and
explain why the documents sought are relevant or reasonably calculated
to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).
Pinson, 2008 WL 5233592, at *1.
In the Motion, Plaintiff first seeks the production of documents from
Sergeant Tony Lopez, Jr. of the Denver County Sheriff’s Office. [#38 at ¶ 2]
Plaintiff appears to request from Sgt. Lopez the production of the report Plaintiff
filed with Sgt. Lopez regarding the sexual assault.

[Id. at ¶ 3]

Plaintiff

additionally seeks production of documents from Karen Niparko, Executive
Director of Human Resources for the Denver County Sheriff’s Office. [Id. at ¶ 4]
From Ms. Niparko Plaintiff appears to be requesting a copy of Plaintiff’s inmate
records from the time he spent in Denver County Jail. [Id. at ¶¶ 7-8] Plaintiff also
requests John Doe #1’s employment file, [id. at ¶ 11], and a copy of the
employment files for all Denver County Sheriff’s Department employees “whose
employment was terminated within 2 months of Plaintiff’s report of the sexual
assault” [id. at ¶ 12].
Plaintiff does not provide analysis for the individual documents requested,
rather he states generally that the documents are “relevant because without
them, Plaintiff cannot identify John Doe #1 and Plaintiff is unable to continue his
case.”

[Id. at ¶ 13]

He further argues that the cost of turning over these

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documents is “relatively minor with respect to the interest of justice Plaintiff
seeks” and that he is unable to obtain the documents through other means. [Id.
at ¶¶ 14-15] Finally, Plaintiff states that as part of his report of the assault,
Plaintiff identified John Doe #1 and that Plaintiff’s file should contain that
identification. [Id. at ¶¶ 6, 8]
The Court therefore considers the subpoena requests pursuant to the
Pinson and Fed. R. Civ. P. 26(b)(1) standards. Plaintiff has sufficiently identified
the name and addresses of those he wishes to subpoena. He has additionally
identified the relevance of seeking his personal inmate records and the report he
submitted regarding the assault as being necessary to identify John Doe #1, who
he believes is identified in those files. He has further identified his lack of access
and the relative proportionality of these requests. Therefore, the Court GRANTS
in PART the Motion [#38], only to the degree it seeks to subpoena Sergeant
Lopez for the assault report and Ms. Niparko for the reports and records
pertaining to the assault at issue and to the identity of the John Doe employee
identified by Plaintiff in the photo lineup.
However, in the Motion Plaintiff fails to explain why the employment files
for all Denver County Sheriff’s Department employees “whose employment was
terminated within 2 months of Plaintiff’s report of the sexual assault” are
necessary to identifying John Doe #1, who Plaintiff states will be identifiable from
Plaintiff’s inmate records.

[Id. at ¶ 12]

It moreover does not explain the

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relevance of John Doe #1’s entire employment file. As such, the Court DENIES
the Motion [#38] to the degree it seeks those documents.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Second Motion for Additional Time to

Subpoena Records to Identify John Doe #1 [#37] is GRANTED and Plaintiff’s Motion
For Issuance Of Subpoena For The Production Of Documents Pursuant To Federal
Rules Of Civil Procedure 45 [#38] is GRANTED IN PART and DENIED IN PART. The
Clerk of Court is directed to issue a Subpoena to Produce Documents, Information, or
Objects or to Permit Inspection of Premises in a Civil Case, directed to Sgt. Tony Lopez,
Jr. 490 W. Colfax Avenue, Denver, CO 80204, and Karen Niparko, 201 W. Colfax
Avenue, Denver, CO 80202, commanding the production of the following documents to
Plaintiff’s attorney, Selvoy Peterson Fillerup, at 2500 South York Street, Suite 103,
Denver CO 80210 within 30 days of service of the subpoena:
(1) Copies the report file by Plaintiff with Sgt. Lopez regarding John Doe
#1’s sexual assault of Plaintiff during 2018;
(2) Copies of records in Plaintiff’s inmate records regarding Plaintiff’s
assault, his identification of John Doe #1 in a photo lineup, and the
identity of John Doe #1.
SO ORDERED.
DATED: November 18, 2020

BY THE COURT:
s/Scott T. Varholak__________
United States Magistrate Judge

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