Prescott v. Valdez et al

Filing 190

ORDER by Magistrate Judge Susan Prose on March 6, 2025. For the reasons in the attached Order, Defendants' 131 Motion for Sanctions is DENIED. (sbplc4)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:21-cv-03252-CNS-SBP
JASON AARON PRESCOTT, individually and as next friend of J.R.P., and J.E.P., minors,
Plaintiffs,
v.
RICHARD VALDEZ, individually and in his official capacity as Sheriff of Archuleta County,
Colorado;
JAMES MARTINEZ, individually and in his official capacity as Deputy Sheriff of Archuleta County,
Colorado;
DEREK WOODMAN, individually and in his official capacity as Undersheriff of Archuleta County,
Colorado;
WARREN BROWN, in his official capacity as Operations Commander in the Archuleta County
Sheriff’s Office;
MICHAEL SINDELAR, individually and in his official capacity as a Deputy Sheriff in the Archuleta
County Sheriff’s Office;
JOHN DOES 1-5, whose actual names are unknown as yet to the Plaintiff; and
JANE DOES 1-5, whose actual names are unknown as yet to the Plaintiff,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION FOR SANCTIONS (ECF No. 131)
Susan Prose, United States Magistrate Judge
This matter is before the court on Defendants’ motion for sanctions, ECF No. 131
(“Motion for Sanctions” or “Motion”), after it was referred to the undersigned United States
magistrate judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 132. Defendants argue for
sanctions against Mr. Prescott and his counsel on two grounds. First, they contend that Mr.
Prescott violated this court’s order dated March 26, 2024, ECF No. 94 (“March 26 Order”), by
failing to appear for a deposition on July 9, 2024. Motion ¶¶ 20-42. Defendants’ second
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argument is less clear, but they appear to assert that Mr. Prescott’s June 24, 2024 motion to
amend the scheduling order, ECF No. 99 (“Motion to Amend”), was misleading or false and thus
was filed in bad faith. Motion ¶¶ 43-51. Defendants move under Federal Rules of Civil
Procedure 11 and 37 for sanctions in the form of their attorney’s fees and an order of involuntary
dismissal of this action with prejudice. Id. ¶¶ 42, 51, 55. Mr. Prescott filed a response, ECF
No. 136 (“Response”), and Defendants replied, ECF No. 138 (“Reply”).
For the reasons below, the Motion for Sanctions is DENIED.
I.

Mr. Prescott’s Deposition
The court assumes the reader’s familiarity with the factual and procedural history of this

action and recounts only what is necessary to resolve the instant Motion.
By March 2024, Defendants had noticed Mr. Prescott’s deposition four times. Mr.
Prescott was scheduled to be deposed in April 2024 when his then-attorney, Donald Lawrence of
the Law Firm of Lisa Ward, LLC, moved to withdraw on March 26, citing a recent medical
diagnosis that prevented him from working. ECF No. 93. During a discovery conference held
that same day, the court permitted Mr. Lawrence to seek an extension of the case deadlines and
heard arguments regarding Defendants’ attempts to depose Mr. Prescott. See March 26 Order.
While the parties acknowledged the need to reschedule Mr. Prescott’s April deposition date in
light of Mr. Lawrence’s imminent withdrawal, the court advised counsel for Mr. Prescott that
[i]f Mr. Prescott is not present for his deposition on the next scheduled date, he may
face sanctions, up to and including dismissal of the case, which the court will
consider upon the filing of a formal motion by Defendants.
Id. (emphasis deleted). Shortly thereafter, the court extended the case deadlines and permitted
Mr. Lawrence to withdraw, leaving Mr. Prescott without counsel. ECF Nos. 96, 97. The court
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informed Mr. Prescott that he could not prosecute claims on his minor children’s behalf while
unrepresented and instructed him to promptly retain counsel if he wished to continue to pursue
those claims. ECF No. 97.
On May 1, 2024, Defendants’ counsel emailed Mr. Prescott—who at the time was still
pro se—at his personal email address for input on dates in June for his deposition. ECF No. 113
at 3. When Mr. Prescott had not responded by May 15, Defendants communicated with a process
server, providing her a notice setting Mr. Prescott’s deposition for July 9 and giving her
instructions about how to serve that notice on Mr. Prescott. ECF No. 138-3. On May 17, Lisa
Ward, of the Law Firm of Lisa Ward, LLC, filed a notice of appearance on behalf of Mr.
Prescott. ECF No. 98. After that, on May 22, Mr. Prescott was served with the deposition notice.
See ECF No. 131-3.
In early June, Ms. Ward reached out to Defendants’ counsel to discuss rescheduling Mr.
Prescott’s deposition due to a conflict on Ms. Ward’s schedule for July 9. See ECF No. 136-1
at 1-14. Ms. Ward asked that the deposition be rescheduled for some time during the July 26 to
July 29 timeframe, but the parties were unable to agree on a date for the deposition. Id. at 15-18.
On June 25, Mr. Prescott filed a motion for a protective order “grant[ing] them 21 days to
reschedule the deposition in this matter to accommodate counsels’ calendars.” ECF No. 104
(“Motion for Protective Order”) at 5. 1 The court ordered expedited briefing, ECF No. 110, and
Defendants later sought leave to file a surreply. ECF No. 117.
On July 8—the day before Mr. Prescott was set to be deposed—the court entered a

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Mr. Prescott initially sought a protective order on June 24, see ECF No. 100, but subsequently
filed two amended motions for a protective order. See ECF Nos. 102, 104.
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minute order:
Pursuant to D.C.COLO.LCivR 30.2(a), the deposition of Plaintiff Jason Prescott is
stayed pending a ruling on Mr. Prescott’s [Motion for Protective Order]. The court
further notes that Defendants extended the briefing on the pending motion by
requesting leave to file a surreply after 7/1/2024.
ECF No. 119 (“July 8 Order”). On July 11, the court granted the Motion for Protective Order and
ordered the parties to “work together to reschedule Plaintiff’s deposition, which shall be taken
within 21 days of this order.” ECF No. 122 (“July 11 Order”). Additionally, the court permitted
Defendants to file the current Motion for Sanctions. Id. Mr. Prescott sat for a deposition on
August 1.
In the Motion for Sanctions, Defendants argue that Mr. Prescott violated the court’s
March 26 Order by failing to make himself available to be deposed on July 9. Defendants
specifically invoke Rule 37(b), which provides for sanctions for failure to comply with a court
order, to argue that sanctions are appropriate here. 2 “A Rule 37(b) violation occurs when (1) a
prior discovery order was issued, and (2) a party or witness failed to obey an order to provide or
permit discovery.” Cronick v. Pryor, No. 20-cv-00457-CMA-MDB, 2024 WL 50194, at *3 (D.
Colo. Jan. 4, 2024) (citing Fed. R. Civ. P. 32(b)(2)) (cleaned up).
The March 26 Order did instruct Mr. Prescott to attend his next noticed deposition, and
his next deposition following that Order was scheduled for July 9. However, Mr. Prescott
petitioned the court for a protective order to reschedule his deposition, and the court stayed the
deposition pending a ruling on his Motion for Protective Order. July 8 Order. Three days later,

2

Defendants also cite Rule 11(c), but their Motion does not make clear how Mr. Prescott’s
failure to attend the July 9 deposition violated that Rule. See generally Motion ¶¶ 20-42. The
court therefore does not consider Rule 11 as a basis for Defendants’ request for sanctions.
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the court granted the Motion for Protective Order, stating “[t]he parties are ordered to work
together to reschedule Plaintiff’s deposition, which shall be taken within 21 days of this order.”
July 11 Order. Put simply, these rulings obviously excused Mr. Prescott from any obligation to
attend his deposition on July 9 and had the effect of superseding the court’s prior March 26
Order. It logically follows that Mr. Prescott did not violate a court order and that sanctions under
Rule 37 are not warranted.
Undeterred by the court’s unmistakably clear rulings, Defendants still insist that Mr.
Prescott should be sanctioned for failing to appear on July 9. They double down on their position
in their Reply, filed September 3, 2024:
Plaintiffs and their counsel ignored this Court’s order to appear at his next
scheduled deposition date, which was July 9, 2024. Plaintiffs and their counsel did
so without a current Court Order authorizing their nonappearance. Plaintiffs and
their counsel were aware that there was no current Court Order authorizing their
nonappearance on July 9, 2024, as they admit there was no order authorizing such
until July 11, 2024.
Reply ¶¶ 38-40 (cleaned up, emphasis in original).
While the court’s July 11 Order permitted Defendants to file the Motion for Sanctions—
as opposed to barring them from doing so—the court would have expected them to see the
exceedingly narrow, if not non-existent, chance of prevailing on the argument that Mr. Prescott
violated a court order. The court cannot reconcile Defendants’ position that there was no order
authorizing Mr. Prescott to refrain from attending the July 9 deposition with their
acknowledgments of this court’s July 8 and 11 Orders in their Motion and Reply. Motion ¶ 30;
Reply ¶¶ 22-23, 40. Having repeatedly stressed the loss of time and resources that they attribute
to the conduct of Mr. Prescott and his attorneys, see Reply ¶¶ 41-42, Defendants apparently had
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no qualms about using their own time and resources—as well as the court’s—to raise this wholly
unsupported request for sanctions.
Mr. Prescott did not violate a court order when he did not sit for his deposition on July 9;
if anything, his absence complied with this court’s instructions in its July 8 and 11 Orders. In so
finding, the court emphasizes that Mr. Prescott exhibited no bad faith whatsoever in not attending
a deposition on July 9. Defendants’ first argument for sanctions is DENIED.
II.

Mr. Prescott’s Motion to Amend the Scheduling Order
On June 24, Mr. Prescott filed his Motion to Amend, asking the court to extend the

deadline to designate affirmative experts—set for July 1—by fourteen days. Mr. Prescott based
his request on the inability of one expert, Captain Ashley Heiberger, to produce a report before
then. Motion to Amend ¶¶ 6-7. The court granted the requested extension on June 27. ECF
No. 107. Defendants point out that Mr. Prescott’s expert disclosures ultimately did not include a
report from Captain Heiberger, nor did Mr. Prescott list Captain Heiberger as a designated expert.
Motion ¶¶ 45-46; see also ECF No. 126. Additionally, Defendants take issue with the designation
of Detective Boyd Neagle as a non-retained expert as he had not been previously mentioned as a
potential expert. Motion ¶ 48. Defendants claim that their subsequent communications with
Detective Neagle indicate that he has no information relevant to this case, does not intend to
offer testimony, and told Mr. Prescott and his attorneys that he would not be participating in this
matter as an expert. Id. ¶ 49.
Based on all this, Defendants insist that Mr. Prescott and his counsel filed the Motion to
Amend in bad faith by misrepresenting the basis for the requested extension in violation of Rule

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11, forcing Defendants to incur unnecessary costs. 3 Id. ¶¶ 50. Mr. Prescott responds that although
he did seek to extend the expert deadline based on Captain Heiberger, he and his counsel “opted
to change their strategy and utilize a different expert witness.” Response ¶ 8.
Sanctions under Rule 11 are “an extraordinary remedy” meant to “discourage frivolous
litigation, not to punish litigants.” Greeley Pub. Co. v. Hegert, 233 F.R.D. 607, 611 (D. Colo.
2006). “The focus of Rule 11 is narrow. It relates to the time of signing of a document and
imposes an affirmative duty on each attorney and each party, represented or pro se, to conduct a
reasonable inquiry into the validity and accuracy of a document before it is signed.” Eisenberg v.
Univ. of New Mexico, 936 F.2d 1131, 1134 (10th Cir. 1991). Ultimately, the standard for
determining whether Rule 11 sanctions are warranted is a purely objective one. See Greeley Pub.
Co., 233 F.R.D. at 610; White v. Gen. Motors Corp., Inc., 908 F.2d 675, 680 (10th Cir. 1990)
(“[A]n attorney’s actions must be objectively reasonable in order to avoid Rule 11 sanctions.”).
Here, there is insufficient evidence to show that Mr. Prescott or his attorneys
affirmatively misrepresented the basis for their Motion to Amend. They have come forward with
a plausible and reasonable explanation—that their litigation strategy changed upon further
consideration—to explain Captain Heiberger’s omission from Mr. Prescott’s final expert
designations. Furthermore, in granting the Motion to Amend, this court did not cabin its
extension of the designation deadline solely to permit the designation of Captain Heiberger. It
granted the Motion to extend the deadline for designating affirmative experts, with no

3

Defendants also argue that these actions violate Rule 37(b), but again, they do not explain why
that Rule is applicable, particularly when they have not alleged that Mr. Prescott’s actions
violated a court order. See generally Motion ¶¶ 43-51.
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restrictions or caveats. ECF No. 107 (stating, in a text order, that “[t]he Designation of
Affirmative Experts deadline is 7/15/2024”). Put simply, the court extended the deadline with no
intent to micromanage the final content of the affirmative expert disclosures.
Nor is the court persuaded that Mr. Prescott’s decision to designate Detective Neagle as a
non-retained expert was “made for any improper purpose,” or was in any way “frivolous,” so as
to violate Rule 11. Motion at 10; see also Fed. R. Civ. P. 11(b)(1). Defendants may believe that
Detective Neagle has no information to provide, or that the detective would refuse to participate
in the case, but Mr. Prescott and his counsel can take a different view of the matter without
offending Rule 11. Designated experts ultimately may not testify at trial for myriad reasons, none
of which evince bad faith in a party’s decision to preserve its right to call that expert by
proactively disclosing them pursuant to Federal Rule of Civil Procedure 26(a)(2).
In short, Mr. Prescott made no misrepresentation here that would warrant the
extraordinary remedy of sanctions under Rule 11. Greeley Pub. Co., 233 F.R.D. at 611. This
sanctions request, too, is DENIED.
CONCLUSION
For these reasons, Defendants’ Motion for Sanctions, ECF No. 131, is DENIED. 4
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Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
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DATED: March 6, 2025

BY THE COURT:

______________________________
Susan Prose
United States Magistrate Judge

and the consequences of failing to object”).
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