Romero v. Gallegos-Cervantes et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22–cv–01602–NYW–MDB
RICHARD ROMERO,
Plaintiff,
v.
F. GALLEGOS-CERVANTES, Officer #2044, and
ALLEN, Lt.
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
Before the Court are three motions: (1) Defendants F. Gallegos-Cervantes and Allen’s
Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(d), ([“Motion for Sanctions”], Doc. No.
116), (2) Plaintiff Richard Romero’s Motion to Appoint Counsel, ([“Motion to Appoint
Counsel”], Doc. No. 108), and (3) Plaintiff’s Motion for Choice of Venue, ([“Venue Motion”],
Doc. No. 132.) Plaintiff and Defendants have not responded. Having carefully reviewed the
briefing and considered the issues, the Court respectfully RECOMMENDS that the Motion for
Sanctions be GRANTED, the Motion to Appoint Counsel be DENIED, and the Venue Motion
be DENIED. 1
PRO SE SUMMARY
1 In his Venue Motion, Plaintiff requests a “transfer” to Denver County Court. (Doc. No. 132 at
1.) Because this Court has no authority to order such a transfer, the motion must be denied. See
Gross v. Silverberg, No. 10-cv-00687-REB-BNB, 2010 WL 5147594, at *2 (D. Colo. Dec. 13,
2010) (noting federal courts do not have authority to transfer venue to state court).
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You were ordered by this Court to produce discovery responses to Defendants, and while
you produced medical releases, you did not answer Defendants’ questions or otherwise respond
to their requests. Defendants then filed a motion for sanctions and you did not respond to that
motion, despite the Court reminding you of your obligation to respond. To date, you have not
provided complete responses to Defendants’ requests, and are in violation of this Court’s order
requiring you to provide responses. As a sanction for your conduct, the Court finds that you are
in contempt. You must provide complete responses to Defendants’ discovery requests on or
before December 8, 2023, or risk having your case dismissed. The discovery requests you must
answer are set out in this Order on page 8.
The Court is also denying your motion for appointment of counsel because the
circumstances do not warrant it at this time. And the Court is denying your motion for choice of
venue because the Court does not have authority to transfer your case to Denver County Court.
This is only a high-level summary of this Court’s Order. Please read the full Order below.
BACKGROUND
The Lawsuit
Plaintiff has filed various claims against Jefferson County Jail, Officer Gallegos-
Cervantes, and Lieutenant Allen for violating 42 U.S.C. § 1983 by: (1) using excessive force and
(2) violating his Fourteenth Amendment due process rights. (Doc. No. 1 at 3-11.)
In October 2022, the Honorable Lewis T. Babcock dismissed all claims against Jefferson
County Jail and the claims against Gallegos-Cervantes and Allen for violations occurring in their
official capacities. (Doc. No. 12 at 1-2.) It was further ordered that the Section 1983 claims
against Gallegos-Cervantes and Allen in their individual capacities be drawn to a presiding
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judge, and if applicable, a magistrate judge. (Id. at 2.) The case was then reassigned to the
Honorable Nina Y. Wang and the undersigned. (Doc. No. 13.)
Plaintiff proceeds pro se, and the Court has therefore held various conferences to better
understand Plaintiff’s requests and positions, and to explain to Plaintiff his responsibilities and
obligations in connection with this litigation. (Docs. No. 34, 46, 49, and 87.) The Court also
discussed discovery and discovery parameters with the parties, and on March 20, 2023, the Court
entered a Scheduling Order that set September 29, 2023 as the discovery cut-off date. (Doc. No.
50.) Since then, Plaintiff has filed multiple requests and the Court has had various opportunities
to hear from Plaintiff about his plans for discovery and this case. (Docs. No. 57, 61, 66, 67, 73,
78, 80, 82, 90, 99, 104, 119, and 122.) During one conference, Plaintiff represented that his
family had the financial ability to support his litigation efforts and that they had been in touch
with at least one attorney for possible representation in this case. (Doc. No. 69.) To date, however, no
attorney has entered an appearance on his behalf.
The Motion for Appointment of Counsel
Plaintiff previously requested appointment of counsel, and the Court denied that request.
(Docs. No. 30, 69.) On September 8, 2023, Plaintiff again requested counsel. (Doc. No. 108.)
The Motion for Sanctions
Although many of the issues brought to this Court’s attention concern discovery Plaintiff
seeks from Defendants, the Motion for Sanctions concerns discovery that Defendants seek from
Plaintiff. Specifically, on or about May 3, 2023, Defendants mailed their First Set of Written
Discovery Requests (“Discovery Requests”) to Plaintiff at the Jefferson County Jail, and those
requests were subsequently hand-delivered to Plaintiff. (Doc. Nos. 72; Doc. No. 116 at 2.) The
requests seek information regarding Plaintiff’s alleged injuries. (Doc. No. 116 at 2.) Plaintiff
failed to respond to those requests, and Defendants filed a motion to compel. (Doc. No. 95.)
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On September 11, 2023, the Court granted Defendants’ motion to compel and ordered
Plaintiff to respond to the written discovery requests by September 25, 2023. (Doc. No. 109.) On
September 16, 2023, Plaintiff executed and returned a HIPAA release authorization but did not
respond to the discovery requests. (Doc. No. 116 at 2.)
On October 5, 2023, Defendants moved for sanctions, arguing that Plaintiff’s “willful
refusal” to respond to the discovery requests and this Court’s directives warrant sanctions. (Doc. No.
116 at 2-7.) On October 18, 2023, the Court reminded Plaintiff that a response to the Motion for
Sanctions was due on or before October 26, 2023. (Doc. No. 120.) Plaintiff never responded to
the Motion for Sanctions. He did, however, file a letter notifying the Court of conventionally
submitted materials and indicating that his father would also be mailing a CD-ROM with
evidence. (Doc. No. 119.) The letter is not a response to the Motion for Sanctions, nor does it
indicate that Plaintiff has responded to the discovery requests at issue. (Id.) Additionally, on
November 15, 2023, Plaintiff filed a letter indicating he previously submitted a medical release,
but there is no indication that he answered any of the interrogatories, requests for admission, or
other discovery at issue in this Motion for Sanctions. (Doc. No. 131.)
LEGAL STANDARD
I. Motion for Sanctions
Federal courts have the power to sanction conduct that abuses the judicial process.
Anderson v. Amer. Nat. Prop & Cas. Co., No. 17-cv-03016-KMT, 2019 WL 8348917, at *1 (D.
Colo. Aug. 19, 2019) (citing Towerridge, Inc. v. T.A.O., Inc. 111 F.3d 758, 765-766 (10th Cir.
1997)). “Rule 26(g) charges those responsible for the success or failure of pretrial discovery–the
trial judge and lawyers for the adverse parties–with approaching the process properly: discovery
must be initiated and responded to responsibly, in accordance with the letter and spirit of the
discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose
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needless expense), to be proportional to what is at issue in the litigation, and if it is not, the judge
is expected to impose appropriate sanctions to punish and deter.” W. Convenience Stores, Inc. v.
Suncor Energy (U.S.A.) Inc., No. 11-cv-1611-MSK-CBS, 2014 WL 1257762, at *25 (D. Colo.
Mar. 27, 2014) (quotation omitted).
Moreover, pursuant to Fed. R. Civ. P. 37, a court may impose sanctions on a non-
compliant litigant for failure to make certain disclosures, failure to obey court orders, or for
evasive disclosures. Courts can impose a broad range of sanctions under Rule 37, including
striking pleadings, dismissing the action, rendering a default judgment, treating the disobedience
as contempt of court, and more. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). As relevant here, when a
party “fails to obey an order or provide or permit discovery,” Rule 37(b)(2)(A) specifically
allows a court to: (1) direct “that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party claims,” and/or (2)
prohibit “the disobedient party from supporting or opposing designated claims or defenses, or
from introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A)(i-ii).
However, while courts have broad discretion concerning the type of sanction, “the chosen
sanction must be both ‘just’ and ‘related to the particular “claim” which was at issue in the order
to provide discovery.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992) (citing Ins.
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 695, 707 (1982)).
II. Motion to Appoint Pro Bono Counsel
Whether to appoint pro bono counsel in a civil case is a determination left to the sound
discretion of the district court. Dona’t v. Amazon.com/Kindle, 482 F. Supp. 3d 1137, 1145 (D.
Colo. 2020) (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). But the court is
not authorized to appoint counsel—instead, the court can only ask an attorney to take the case.
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Moaz v. Denver Int’l Airport, 747 F. App’x 708, 711 (10th Cir. 2018). In deciding whether to
request counsel for a civil litigant, the court should evaluate “the merits of a [litigant’s] claims,
the nature and complexity of the factual issues, and the [litigant’s] ability to investigate the facts
and present his claims.” Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(citations omitted); accord D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) (outlining factors the court
should consider in determining whether to appoint pro bono counsel). Ultimately, the burden is
on the applicant to demonstrate that his claim is sufficiently meritorious to warrant the
appointment of counsel. Hill, 393 F.3d at 1115. “Only in those extreme cases where the lack of
counsel results in fundamental unfairness will the district court’s decision be overturned.” Id.
(citation omitted).
III. Pro Se Litigants
In applying the above principles, this Court is mindful that Plaintiff proceeds pro se and
thus affords his papers and filings a liberal construction. Trackwell v. United States, 472 F.3d
1242, 1243 (10th Cir. 2007). But the Court cannot and does not act as his advocate, Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and
substantive law to Plaintiff as to a represented party. See Murray v. City of Tahlequah, 312 F.3d
1196, 1199 n.3 (10th Cir. 2008); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236
(D. Colo. 2012).
ANALYSIS
I. Motion for Sanctions
According to Defendants, the discovery they requested concerns Plaintiff’s injuries. (Doc.
No. 116 at 2.) And while Plaintiff has provided HIPAA release authorization, Defendants claim it “is
not a substitute for [Plaintiff’s] responses to the Discovery Requests[.]” (Id. at 3.) Additionally, the
matter is no longer a mere discovery dispute, but rather a failure to comply with a Court order. (Doc.
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No. 109.) The Court acknowledges Plaintiff’s pro se and incarcerated status, and for that very reason
has set various conferences, issued reminders to Plaintiff, and construed all of his pleadings liberally.
However, his pro se status does not relieve him of his obligation to comply with Court orders. See
Murray, 312 F.3d at 1199 n.3. Additionally, the Court notes that although Plaintiff claims he “do[es]
[not] know what [he is] doing,” (Doc. No. 108), he has proved capable of navigating this process
sufficiently well to obtain subpoenas and file multiple requests with the Court, with some filed
around the time Plaintiff was required to respond (though he failed to respond) to the Motion for
Sanctions. (See, e.g., Doc. Nos. 122, 124.)
As noted above, Fed. R. Civ. P. 37, authorizes a court to impose sanctions on a non-
compliant litigant for failure to make certain disclosures, failure to obey court orders, or for
evasive disclosures. Moreover, when a party “fails to obey an order,” Rule 37(b)(2)(A)
specifically allows a court to: (1) direct “that the matters embraced in the order or other
designated facts be taken as established for purposes of the action, as the prevailing party
claims,” and/or (2) prohibit “the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P.
37(b)(2)(A)(i-ii).
Here, the Court has ordered Plaintiff to provide the discovery at issue, and Plaintiff has
not complied. (Doc. No. 109.) On that basis alone, the Court is authorized to impose sanctions,
and finds that sanctions are indeed warranted here. Next, the Court considers the type of
sanctions most appropriate under the circumstances. Defendants ask the Court to award one of
three sanctions:
1) Dismiss the action. (Doc. No. 116 at 3.)
2) Strike the pleadings and prevent Plaintiff from offering matters concerning physical
injuries. (Id. at 5.)
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3) Treat Plaintiff’s failure as a contempt of Court and order Plaintiff to respond or face
dismissal. (Id.)
Courts have broad discretion as it concerns the type of sanction, but “the chosen sanction
must be both ‘just’ and ‘related to the particular “claim” which was at issue in the order to
provide discovery.” Ehrenhaus, 965 F.2d at 920-21 (citing Ins. Corp. of Ireland, 456 U.S. at
707.) In other words, the sanction must be appropriately tailored to the circumstances and the
orders at issue.
Here, the information at issue concerns a key element of Plaintiff’s claims: damages.
Specifically, Defendants have issued the following interrogatories, requests for production, and
requests for admission:
C. INTERROGATORIES
1. Please identify all persons with knowledge of the facts and circumstances relating
to the Incident. This includes any person who witnessed, observed, and/or heard the
actions, conduct, and/or facts that form the basis for the allegations contained in
your Complaint [ECF 1].
2. Please describe the events leading up to the Incident, including any orders any
Sheriff’s Office employee gave you and your response to such orders.
3. Please describe any injuries you allege resulted from the Incident.
4. Please describe any injuries you presented to a Health Care Provider or Medical
Records were generated related to the Incident.
5. Please identify any Health Care Provider you presented to and/or received
treatment from for injuries related to the Incident.
D. REQUEST FOR PRODUCTION OF DOCUMENTS
1. Please produce all documents you may use to support the allegations contained
in your Complaint [ECF 1].
2. Please produce all medical records documenting your injuries resulting from the
Incident.
3. Please execute and return the attached HIPPA compliant Medical Information
Release Authorization so that we may obtain your complete medical information
relevant to the claims in your Complaint [ECF 1].
E. REQUESTS FOR ADMISSION
1. Please admit you failed to follow an order from Dep. Gallegos-Cervantes prior to
any alleged use of force by Defendants.
2. Please admit you touched Dep. Gallegos-Cervantes prior to any alleged use of force
by Defendants.
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(Doc. No. 116-1 at 6-7.) Although some information sought in these requests can be obtained
using the medical authorization already provided to Defendants, the discovery requests call for
additional information that is material to the defense of claims. For example, the requests call for
information about the events leading up to the incident, all providers that treated Plaintiff’s
injuries, witnesses to the incident, and documents that Plaintiff intends to use in support of his
claims. (See generally id.) Plaintiff’s failure to produce this information is prejudicial to
Defendants.2
Still, Defendants go too far in seeking outright dismissal because that is a severe sanction
reserved for the most extreme of circumstances. See Helget v. City of Hays, Kan., 844 F.3d 1216,
1225-26 (10th Cir. 2017). the Court is troubled by Plaintiff’s approach of leveraging the Court
for receiving discovery, while at the same time ignoring counsel’s discovery requests and this
Court orders when it comes to responding to discovery. But the discovery at issue is not the only
way for Defendants to obtain the information they seek. Indeed, the treatment Plaintiff received,
the witnesses to the incident, and the information about the incident, are in some respects more
readily available to Defendants and the County attorneys than to Plaintiff, who is incarcerated
and under the custody of the County. There is no doubt in the Court’s mind that Defendants are
being deprived of some relevant evidence, but Defendants and the County attorney are not so
2 “The withholding of evidence ‘substantially prejudices an opposing party by casting doubt on
the veracity of all the culpable party’s submissions throughout the litigation.” Freddie v. Marten
Transport, Ltd., 428 F. App’x 801, 804 (10th Cir. 2011) (quoting Garcia v. Berkshire Life Ins. Co.
of Am., 569 F.3d 1174, 1180 (10th Cir. 2009). But even if it were not prejudicial, sanctions would
still be appropriate because a showing of prejudice is not required when a party disobeys court
orders. See generally Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii); see also Markham v. Nat’l States Ins.
Co., No. Civ.02-1606-F, 2004 WL 3019308, at *11 (W.D. Okl. Jan. 8, 2004) (“Under Rule
37(b), a litigant which has clearly violated a discovery order is, on that basis alone, exposed to
the imposition of sanctions. . . . At least where the extreme sanctions of default or dismissal are
not imposed, a showing of willfulness or bad faith need not be made.”)
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prejudiced by the circumstances so as to warrant outright dismissal or striking of any pleadings
at this time.
Nevertheless, the Court takes seriously its obligation to protect the integrity of the
discovery process. If parties are free to ignore court orders, then rules and procedures mean
nothing. Under the circumstances, the Court finds it would be most appropriate to issue an order
finding Plaintiff in contempt, and ordering Plaintiff to provide a written response to all of
Defendant’s discovery requests on or before December 18, 2023. Plaintiff’s failure to comply
with this directive may result in the Court recommending to the presiding judge that she dismiss
the action.
II. Motion to Appoint Counsel
Based on this Court’s experience with Plaintiff and the parties, it finds that appointment
of pro bono counsel is not warranted under the circumstances. First, it is difficult to assess the
merits of Plaintiff’s claims at this time, given the ongoing discovery issues. See Hill, 393 F.3d at
1115. Second, Plaintiff appears to be sufficiently capable of moving this matter forward, at least
in the ways that support his claim. See id. He has been less than responsive on matters that
interest Defendants, but even that seems to indicate that Plaintiff is capable of discerning what is
helpful to his case, and what is not. Additionally, even if the Court were to appoint counsel, it is
unlikely that any counsel would be available to take the case, given that other Court
appointments remain unfulfilled after weeks of issuing orders. See Moaz, 747 F. App’x at 711.
CONCLUSION
For the reasons stated herein, this Court respectfully RECOMMENDS that:
(1) Defendants’ Motion for Sanctions (Doc. No. 116) be GRANTED. Defendants’
discovery requests are set forth on page 8 of this Order and Plaintiff must
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respond to them on or before December 18, 2023; and
(2) Plaintiff’s Motion to Appoint Counsel (Doc. No. 108) be DENIED without
prejudice.
(3) Plaintiff’s Venue Motion (Doc. No. 132) be DENIED with prejudice.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
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1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated: November 17, 2023.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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