Ortiz v. Torgenson et al

Filing 104

MEMORANDUM DECISION & ORDER AFTER TENTH CIRCUIT'S REMAND OPINION: Denying 41 Motion to Compel. The Court's Order 33 Denying Counsel is VACATED. Plaintiff's Motion 12 for Appointment of Counsel is now Granted. The Clerk of Court must secure pro bono counsel to represent Plaintiff in pursuing, against Defendants Anderson and Peterson, his claim of unconstitutional retaliation. Counsel shall enter an appearance within fourteen days of appointment. See order for details. Signed by Judge Tena Campbell on 05/04/2021. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DANIEL ORTIZ,

v.

MEMORANDUM DECISION
& ORDER AFTER TENTH
CIRCUIT’S REMAND OPINION

OFFICER TORGENSON et al.,

Case No. 2:17-CV-328 TC

Plaintiff,

Defendants.

District Judge Tena Campbell

On March 27, 2019, the Court granted summary judgment for Utah Department of
Corrections defendants Allred, Anderson, Braithwait, Burnham, Dennis, Ekker, George,
Peterson, Pickett, Sorensen, Sylvester, and Torgensen. (ECF No. 70, at 31.)
On appeal, the Tenth Circuit Court of Appeals affirmed this Court’s “judgment as to
Ortiz’s failure-to-protect claim, denial-of-medical-care claim, and retaliation claim” (regarding
Defendant Ekker). (ECF No. 103, at 29.) The Tenth Circuit then vacated (a) “the judgment as to
Ortiz’s retaliation claim as it relates to defendants Anderson and Peterson”; and (b) this Court’s
denial of Ortiz’s motion to compel discovery. (Id.) The court of appeals remanded to this Court
“for proceedings consistent with this opinion.” (Id.)
With its exhibits, Ortiz’s motion to compel discovery was a substantial 125 pages,
covering all twelve defendants and three claims. (ECF No. 41.) Now, though--with but two
defendants and one claim remaining--much of the motion to compel is irrelevant. Further, Ortiz
will no doubt want to reshape any discovery requests to reflect the Tenth Circuit’s extensive
guidance on discovery and Ortiz’s retaliation claim against Defendants Anderson and Peterson.

(ECF No. 103, at 11-15, 18-24.) Ortiz’s motion to compel discovery is thus denied, with the
expectation that, if desired, Ortiz will propose further discovery regarding only his retaliation
claim against Defendants Anderson and Peterson.
Further, Plaintiff’s motion for appointed counsel was denied in a past order, in which the
Court noted, “however, if, after the case develops further, it appears that counsel may be needed
or of specific help, the Court will ask an attorney to appear pro bono on Plaintiff’s behalf.” (ECF
No. 33, at 2.) Now that time has come: The Court concludes that counsel is needed to help
Plaintiff with post-remand litigation on the lone remaining claim against the sole remaining
defendants, Anderson and Peterson. (ECF No. 103, at 29.) The Court therefore vacates its past
order denying counsel. (ECF No. 33.)
IT IS ORDERED that:
(1) Ortiz’s motion to compel discovery is DENIED. (ECF No. 41.)
(2) The Court’s order denying counsel is VACATED. (ECF No. 33.) Plaintiff's motion
for appointed counsel is now GRANTED. (ECF No. 12.)
(3) The Clerk of Court must secure pro bono counsel to represent Plaintiff in pursuing,
against Defendants Anderson and Peterson, his claim of unconstitutional retaliation.
(4) Counsel shall enter an appearance within fourteen days of appointment.
(5) Within ninety days of entering appearance of counsel, if desired, Plaintiff's counsel
shall make new discovery requests--tailored to the single remaining claim--to Defendants
Anderson and Peterson.

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(6) Within 120 days of Plaintiff’s counsel’s entry of appearance, Plaintiff’s and
Defendants’ counsel shall propose a jointly agreed upon scheduling order for potential settlement
or litigation through trial.
(7) Plaintiff must not act pro bono to file further documents but must instead wait to
consult his attorney, when appointed. Effective now, any documents Plaintiff submits directly to
the Court will be returned to him.
DATED this 4th day of May, 2021.
BY THE COURT:

TENA CAMPBELL
United States District Judge

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