Case: Nellson v. Barnhart

1:20-cv-00756 | U.S. District Court for the District of Colorado

Filed Date: March 18, 2020

Closed Date: Oct. 22, 2020

Clearinghouse coding complete

Case Summary

COVID-19 Summary: Prisoner in the custody of the Federal Bureau of Prisons sought injunctive and declaratory relief after the prison in which he was incarcerated failed to implement COVID-19 testing and other precautionary protocols. Because the plaintiff failed to exhaust administrative remedies before filing suit, the claim was dismissed. The COVID-19 outbreak began in late 2019 and grew quickly in the United States in March 2020. The World Health Organization declared a health emergency in J…

COVID-19 Summary: Prisoner in the custody of the Federal Bureau of Prisons sought injunctive and declaratory relief after the prison in which he was incarcerated failed to implement COVID-19 testing and other precautionary protocols. Because the plaintiff failed to exhaust administrative remedies before filing suit, the claim was dismissed.


The COVID-19 outbreak began in late 2019 and grew quickly in the United States in March 2020. The World Health Organization declared a health emergency in January of 2020 and then declared a global pandemic on March 11, 2020. President Donald Trump declared a national emergency on March 13, 2020, and states across the country instituted shut-downs of schools, restaurants, bars, and gyms shortly thereafter. Social distancing, testing, and isolation are key methods of preventing the spread of COVID-19.

On March 18, 2020, the plaintiff, a prisoner in custody at USP Florence in Colorado, filed this class-action lawsuit against the United States Bureau of Prisons (BOP) and the warden of USP Florence in the U.S. District Court for the District of Colorado. The plaintiff filed the suit on behalf of himself and all other prisoners in BOP custody, alleging that the defendants knowingly risked the safety and lives of their wards by failing to implement safety and testing protocols in violation of the plaintiff class’s Eighth Amendment constitutional rights. The plaintiffs sought class certification, declaratory and injunctive relief, and attorneys' fees.

In the complaint, the plaintiffs alleged that, as of the time of filing, the prisoners in USP Florence’s custody were “sitting ducks.” They alleged that the Bureau of Prisons had suspended visits and prisoner movement, but had failed to order COVID-19 testing kits, and that certain facilities within the Bureau of Prisons lacked hand sanitizer and soap for hand washing. The plaintiffs requested that the court issue an injunction, requiring the BOP to test those showing symptoms and to screen for COVID-19 by at least testing for fever daily. They also sought an injunction and declaratory relief declaring that all BOP staff testing positive for COVID-19 be excluded from contact with BOP prisoners

The case was deemed improper for summary judgment and was assigned to Magistrate Judge Nina Y. Wang.

On March 31, 2020, the plaintiffs filed a motion for a temporary restraining order and preliminary injunction. In this new motion, the plaintiffs alleged that the BOP failed to screen inmates or staff members for COVID-19 and that the BOP "is sitting on an infectious powder keg and is doing exactly nothing to prevent it exploding." The plaintiffs requested that the court order the BOP to take action by immediately starting to test and screen incarcerated people and quarantine all those that tested positive. Since the plaintiffs had filed for injunctive relief, the case was reassigned to a District Judge.

On March 31, the case was reassigned to Judge Philip A. Brimmer. The defendants filed their response on April 6, 2020, and the plaintiffs replied on April 13.

On April 16, Judge Brimmer denied the plaintiffs' motion for a temporary restraining order, noting that the plaintiff had failed to exhaust administrative remedies (even though the plaintiff alleged that such remedies would be useless since they could take up to 90 days to complete). 454 F. Supp. 3d 1087. Even if the plaintiffs had not failed to exhaust their administrative remedies, Judge Brimmer found that the temporary restraining order would be moot since the BOP had implemented screening, quarantining, and testing measures. The court did not rule on the motion for a preliminary injunction.

The defendants filed a response to the plaintiffs' motion for preliminary injunction on April 22, reiterating that the plaintiffs failed to exhaust his administrative remedies under the Prison Litigation Reform Act, and that he failed to show irreparable harm and deliberate indifference by the defendants.

On June 4, Judge Brimmer denied the plaintiffs' motion for a preliminary injunction. 2020 WL 3000961. Judge Brimmer found that the plaintiff still had not exhausted his administrative remedies and that he was unlikely to succeed on the merits of his claim because the defendants had implemented mitigation measures. Judge Brimmer then referred the case to Magistrate Judge Nina Y. Wang.

The plaintiffs filed an amended complaint on July 16, 2020, naming only Federal Bureau of Prisons and the Warden in his official capacity as defendants. A little over a week later, the defendants moved to dismiss the amended complaint and moved for summary judgment, contending that the plaintiff still had not exhausted his administrative remedies.

On October 22, 2020, Judge Brimmer granted the defendants motion for summary judgment. 2020 WL 6204275. Judge Brimmer determined that the plaintiff had not filed any administrative grievances before suing the defendants, and therefore failed to exhaust his options before seeking a judicial remedy. The case is now closed.

Summary Authors

Elizabeth Helpling (4/28/2020)

Averyn Lee (5/27/2020)

Mary Novakovic (10/10/2020)

Justin Hill (12/19/2020)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/16997399/parties/nellson-v-barnhart/


Judge(s)

Brimmer, Philip A. (Colorado)

Wang, Nina Y. (Colorado)

Attorneys(s) for Plaintiff

Carminati, Maria-Vittoria G. (Colorado)

Parrott, Alexandra Lee (Colorado)

Williams, Mario B (Georgia)

Attorneys(s) for Defendant

Dickey, Lauren Marie (Colorado)

Dunn, Jason R. (Colorado)

Other Attorney(s)

Active

Expert/Monitor/Master

Himlie, Shari (Colorado)

Trujillo, Paula (Colorado)

Judge(s)

Brimmer, Philip A. (Colorado)

Wang, Nina Y. (Colorado)

Attorneys(s) for Plaintiff

Carminati, Maria-Vittoria G. (Colorado)

Parrott, Alexandra Lee (Colorado)

Williams, Mario B (Georgia)

Attorneys(s) for Defendant

Dickey, Lauren Marie (Colorado)

Dunn, Jason R. (Colorado)

Other Attorney(s)

Christenson, David Andrew (Florida)

Expert/Monitor/Master

Himlie, Shari (Colorado)

Trujillo, Paula (Colorado)

Documents in the Clearinghouse

Document

1:20-cv-00756

Docket [PACER]

Oct. 22, 2020

Oct. 22, 2020

Docket
1

1:20-cv-00756

Complaint for Declarative and Injunctive Relief regarding Edward Nellson as an Individual and all Similarly Situated Persons as a Class

March 18, 2020

March 18, 2020

Complaint
12

1:20-cv-00756

Minute Order

March 31, 2020

March 31, 2020

Order/Opinion
10

1:20-cv-00756

Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction

March 31, 2020

March 31, 2020

Pleading / Motion / Brief
17 & 17-1 & 17-2

1:20-cv-00756

Defendants' Response to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction

April 6, 2020

April 6, 2020

Pleading / Motion / Brief
19 & 19-1

1:20-cv-00756

Plaintiff's Reply to Defendant's Response [ECF No. 17] to Motion for Temporary Restraining Order and Preliminary Injunction

April 13, 2020

April 13, 2020

Pleading / Motion / Brief
23

1:20-cv-00756

Order

454 F.Supp.3d 1087, 2020 WL 1890670

April 16, 2020

April 16, 2020

Order/Opinion
31 (& 31-1 to 31-3)

1:20-cv-00756

Defendants' Response to Plaintiffs' Motion for Preliminary Injunction

April 22, 2020

April 22, 2020

Pleading / Motion / Brief
35 (& 35-1 to 35-3)

1:20-cv-00756

Plaintiffs' Reply to Defendants' Response [ECF No. 31] to Plaintiff's Motion for Preliminary Injunction

May 1, 2020

May 1, 2020

Pleading / Motion / Brief
45

1:20-cv-00756

Order

2020 WL 3000961

June 4, 2020

June 4, 2020

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/16997399/nellson-v-barnhart/

Last updated May 29, 2022, 3:19 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT for Declarative and Injunctive Relief regarding Edward Nellson as an Individual and all similarly situated Persons as a Class against Warden J. Barnhart, United States Federal Bureau of Prisons (Filing fee $ 400,Receipt Number 1082-7212369)Attorney Maria-Vittoria G. Carminati added to party Edward Nellson(pty:pla), filed by Edward Nellson. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons)(Carminati, Maria-Vittoria) (Entered: 03/18/2020)

1 Civil Cover Sheet

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2 Summons

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3 Summons

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March 18, 2020

March 18, 2020

RECAP
2

ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 1 Complaint, filed by attorney Maria-Vittoria G. Carminati. DO NOT REFILE THE DOCUMENT. Action to take - counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (rsams, ) (Entered: 03/19/2020)

March 18, 2020

March 18, 2020

PACER
3

Case assigned to Magistrate Judge Gordon P. Gallagher. Text Only Entry. (rsams, ) (Entered: 03/19/2020)

March 18, 2020

March 18, 2020

PACER
4

ORDER DRAWING CASE. After review pursuant to D.C.COLO.LCivR 8.1(b), the court has determined that this case does not appear to be appropriate for summary dismissal. Case has been randomly reassigned to Magistrate Judge Nina Y. Wang for all further proceedings. All future pleadings should be designated as 20-cv-00756-NYW. By Magistrate Judge Gordon P. Gallagher on 03/20/2020. (rvill, ) (Entered: 03/20/2020)

March 20, 2020

March 20, 2020

PACER
5

SUMMONS issued by Clerk. (Attachments: # 1 Summons, # 2 Magistrate Judge Consent Form) (rvill, ) (Entered: 03/20/2020)

1 Summons

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2 Magistrate Judge Consent Form

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March 20, 2020

March 20, 2020

PACER
6

ORDER SETTING SCHEDULING/PLANNING CONFERENCE AND SETTING DEADLINE FOR FILING OF CONSENT/NONCONSENT FORM by Magistrate Judge Nina Y. Wang on 3/30/2020. The court shall hold a scheduling conference on 5/18/2020 02:00 PM in Courtroom A 502 before Magistrate Judge Nina Y. Wang via telephone conference. All participants shall use the following dial-in information: 888-363-4749, Access Code: 5738976. The parties shall submit their proposed scheduling order, including a copy of the proposed scheduling order in Word format sent via email to Wang_Chambers@cod.uscourts.gov, on or before 5/11/2020. The parties shall complete and file the Consent/Nonconsent Form indicating either unanimous consent of the parties or that consent has been declined, on or before 5/04/2020. (bwilk, ) (Entered: 03/30/2020)

March 30, 2020

March 30, 2020

PACER
7

SUMMONS Returned Executed upon AG William Barr defendant(s) United States Federal Bureau of Prisons served on 3/27/2020, answer due 5/26/2020. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)

March 31, 2020

March 31, 2020

PACER
8

SUMMONS Returned Executed upon defendant(s) United States Federal Bureau of Prisons served on 3/26/2020, answer due 5/26/2020. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)

March 31, 2020

March 31, 2020

PACER
9

SUMMONS Returned Executed upon United States Attorney General Process Clerk defendant(s) United States Federal Bureau of Prisons served on 3/27/2020, answer due 5/26/2020. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)

March 31, 2020

March 31, 2020

PACER
10

MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 03/31/2020)

March 31, 2020

March 31, 2020

PACER
11

WAIVER OF SERVICE Returned Executed by Edward Nellson. J. Barnhart waiver sent on 3/31/2020, answer due 6/1/2020; J. (I) Barnhart waiver sent on 3/31/2020, answer due 6/1/2020. (nmarb, ) (Entered: 03/31/2020)

March 31, 2020

March 31, 2020

PACER
12

MINUTE ORDER by Magistrate Judge Nina Y. Wang on 3/31/20 re: 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Edward Nellson. Pursuant to Local Rule 40.1(c)(2)(a), civil actions in which a motion for injunctive relief is filed shall not be directly assigned to a magistrate judge. THEREFORE, IT IS ORDERED: The Clerk of the Court is DIRECTED to REDRAW this action to a District Judge for further proceedings. (nmarb, ) (Entered: 04/01/2020)

March 31, 2020

March 31, 2020

PACER
13

CASE REASSIGNED pursuant to 12 Minute Order. This case is randomly reassigned to Chief Judge Philip A. Brimmer. All future pleadings should be designated as 20-cv-00756-PAB. (Text Only Entry) (nmarb, ) (Entered: 04/01/2020)

March 31, 2020

March 31, 2020

PACER
14

MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/1/2020. Defendants shall respond to that portion of Docket No. 10 consisting of the motion for a temporary restraining order on or before April 6, 2020. Text Only Entry (pabsec2) (Entered: 04/01/2020)

April 1, 2020

April 1, 2020

PACER

Minute Order

April 1, 2020

April 1, 2020

PACER
15

Unopposed MOTION for Leave to File Excess Pages by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Proposed Order (PDF Only))(Dickey, Lauren) (Entered: 04/06/2020)

1 Proposed Order (PDF Only)

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April 6, 2020

April 6, 2020

PACER

Order on Motion for Leave to File Excess Pages

April 6, 2020

April 6, 2020

PACER
16

ORDER by Chief Judge Philip A. Brimmer on 4/6/2020 re: Motion for Leave to File Excess Pages 15 is GRANTED. Defendant is granted leave to file their response, not to exceed 19 pages, due on April 6, 2020. Text Only Entry(pabsec2) (Entered: 04/06/2020)

April 6, 2020

April 6, 2020

PACER
17

RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit Himlie Decl., # 2 Exhibit Trujillo Decl.)(Dickey, Lauren) (Entered: 04/06/2020)

1 Exhibit Himlie Decl.

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2 Exhibit Trujillo Decl.

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April 6, 2020

April 6, 2020

PACER
18

MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/9/2020. Plaintiff shall respond to defendants, in particular defendants' exhaustion argument under the PLRA, on or before April 13, 2020. Text Only Entry (pabsec2) (Entered: 04/09/2020)

April 9, 2020

April 9, 2020

PACER

Minute Order

April 9, 2020

April 9, 2020

PACER
19

REPLY to Response to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Exhibit 1)(Carminati, Maria-Vittoria) (Entered: 04/13/2020)

1 Exhibit Exhibit 1

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April 13, 2020

April 13, 2020

PACER
20

MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/14/2020. Defendants to file a response by 4/14/2020 at 3:00 p.m. responding to plaintiff's argument that the grievance process would take 90 days and whether inmates at USP Florence are notified of any emergency grievance procedures. Text Only Entry (pabsec2) (Entered: 04/14/2020)

April 14, 2020

April 14, 2020

PACER

Minute Order

April 14, 2020

April 14, 2020

PACER
21

RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit)(Dickey, Lauren) (Entered: 04/14/2020)

1 Exhibit

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April 14, 2020

April 14, 2020

PACER
22

MOTION for Leave to File Surreply to 21 Response to Motion by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Ex 1 - Plaintiff's Surreply)(Carminati, Maria-Vittoria) (Entered: 04/14/2020)

1 Exhibit Ex 1 - Plaintiff's Surreply

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April 14, 2020

April 14, 2020

PACER
23

ORDER by Chief Judge Philip A. Brimmer on 4/16/2020, re: 10 the portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction that requests a temporary restraining order is DENIED; 22 Plaintiff's Motion for Leave to File Surreply is GRANTED. Accordingly the Clerks office shall docket Exhibit 1 to Docket No. 22 as plaintiff's surreply.(sphil, ) (Entered: 04/16/2020)

April 16, 2020

April 16, 2020

RECAP

Minute Order

April 16, 2020

April 16, 2020

PACER
24

MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/16/2020. Defendants shall respond to the motion for preliminary injunction on or before April 22, 2020. Plaintiff may file a reply on or before April 24, 2020. The Court will set a hearing on the motion for preliminary injunction in a separate order. Text Only Entry (pabsec2) (Entered: 04/16/2020)

April 16, 2020

April 16, 2020

PACER
25

Plaintiff Surreply to 22 MOTION for Leave to File Surreply to 21 Response to Motion by Plaintiff Edward Nellson. Surreply docketed in this case pursuant to 23 Order. (sphil, ) (Entered: 04/16/2020)

April 16, 2020

April 16, 2020

PACER
26

MOTION for Discovery for Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 04/17/2020)

April 17, 2020

April 17, 2020

PACER
27

MINUTE ORDER by Chief Judge Philip A. Brimmer on 4/20/2020. Defendants to file a response re: plaintiff's 26 MOTION for Discovery for Preliminary Injunction by 4/21/2020 at 12:00 p.m. Text Only Entry (pabsec2) (Entered: 04/20/2020)

April 20, 2020

April 20, 2020

PACER

Minute Order

April 20, 2020

April 20, 2020

PACER
28

Unopposed MOTION for Leave to Supplement Reply (ECF No. 19) and Surreply (ECF No. 25) by Plaintiff Edward Nellson. (Attachments: # 1 Affidavit)(Carminati, Maria-Vittoria) (Entered: 04/20/2020)

1 Affidavit

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April 20, 2020

April 20, 2020

PACER
29

ORDER by Chief Judge Philip A. Brimmer on 4/21/2020. Although the motion appears to be prompted by a simple effort to clarify the record, it pertains to a motion that the Court has already ruled on and therefore is irrelevant. As a result, the 28 Motion for Leave to Supplement Reply and Surreply is DENIED. Text Only Entry(pabsec2) (Entered: 04/21/2020)

April 21, 2020

April 21, 2020

PACER

Order on Motion for Leave

April 21, 2020

April 21, 2020

PACER
30

RESPONSE to 26 MOTION for Discovery for Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 04/21/2020)

April 21, 2020

April 21, 2020

PACER
31

RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Attachments: # 1 Exhibit Himlie Decl., # 2 Exhibit Supp. Himlie Decl., # 3 Exhibit Second Supp. Trujillo Decl.)(Dickey, Lauren) (Entered: 04/22/2020)

1 Exhibit Himlie Decl.

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2 Exhibit Supp. Himlie Decl.

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3 Exhibit Second Supp. Trujillo Decl.

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April 22, 2020

April 22, 2020

PACER
32

Unopposed MOTION for Extension of Time to File Reply to Defendants' Response to Plaintiff's Motion for Preliminary Injunction by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 04/23/2020)

April 23, 2020

April 23, 2020

PACER
33

ORDER by Chief Judge Philip A. Brimmer on 4/24/2020 re: 32 Motion for Extension of Time to File is GRANTED. Plaintiff's shall reply on or before May 1, 2020. Text Only Entry (pabsec2) (Entered: 04/24/2020)

April 24, 2020

April 24, 2020

PACER

Order on Motion for Extension of Time to File

April 24, 2020

April 24, 2020

PACER
34

REPLY to Response to 26 MOTION for Discovery for Preliminary Injunction filed by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 04/28/2020)

April 28, 2020

April 28, 2020

PACER
38

ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 34 Reply to Response to Motion, 35 Reply to Response to Motion, filed by attorney Alexandra Parrott. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry). (sphil, ) (Entered: 05/06/2020)

April 28, 2020

April 28, 2020

PACER
35

REPLY to Response to 10 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Trevani Declaration, # 3 Exhibit U.S. v. Rabadi Letter)(Parrott, Alexandra) (Entered: 05/01/2020)

1 Exhibit Nellson Declaration

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2 Exhibit Trevani Declaration

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3 Exhibit U.S. v. Rabadi Letter

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May 1, 2020

May 1, 2020

PACER
36

Unopposed MOTION for Hearing/Conference by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 05/05/2020)

May 5, 2020

May 5, 2020

PACER
37

RESPONSE to 36 Unopposed MOTION for Hearing/Conference filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 05/05/2020)

May 5, 2020

May 5, 2020

PACER
39

ORDER by Chief Judge Philip A. Brimmer on 5/7/2020, re: 36 Unopposed Motion for Status Conference is DENIED. ORDERED that, on or before May 11, 2020, plaintiff shall indicate when and whether he will properly serve defendants.(sphil, ) (Entered: 05/07/2020)

May 7, 2020

May 7, 2020

PACER
40

SUMMONS Returned Executed upon US Attorney's Office, Jason Dunn, on behalf of defendant(s) United States Federal Bureau of Prisons served on 5/11/2020, answer due 7/10/2020. (Attachments: # 1 Exhibit 1)(Carminati, Maria-Vittoria) (Entered: 05/11/2020)

1 Exhibit 1

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May 11, 2020

May 11, 2020

PACER
41

MINUTE ORDER by Magistrate Judge Nina Y. Wang on 5/12/2020. Given 13 Case Reassigned, the Scheduling Conference set for 5/18/2020 before Magistrate Judge Nina Y. Wang and all associated deadlines are hereby VACATED, to be reset at a later date if appropriate. Text Only Entry (nywlc2, ) (Entered: 05/12/2020)

May 12, 2020

May 12, 2020

PACER

Minute Order

May 12, 2020

May 12, 2020

PACER
42

MOTION for Hearing/Conference by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 05/29/2020)

May 29, 2020

May 29, 2020

PACER
43

MOTION for Leave to Supplement 35 Reply to Response to Motion, by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Candelaria Declaration, # 2 Exhibit Lymon Declaration)(Parrott, Alexandra) (Entered: 05/29/2020)

1 Exhibit Candelaria Declaration

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2 Exhibit Lymon Declaration

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May 29, 2020

May 29, 2020

PACER
44

RESPONSE to 42 MOTION for Hearing/Conference filed by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 05/31/2020)

May 31, 2020

May 31, 2020

PACER
45

ORDER by Chief Judge Philip A. Brimmer on 6/4/2020, re: 42 plaintiff's Opposed Motion for Status Conference is DENIED; 43 plaintiff's Motion for Leave to Supplement Motion for Preliminary Injunction is GRANTED; 26 plaintiff's Motion for Limited Discovery is DENIED. ORDERED that the portion of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 10] that seeks a preliminary injunction is DENIED.(sphil, ) (Entered: 06/04/2020)

June 4, 2020

June 4, 2020

RECAP
46

ORDER REFERRING CASE to Magistrate Judge Nina Y. Wang for non-dispositive matters. Pursuant to 28 U.S.C. ยง 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non-dispositive motions, and (4) conduct a pretrial conference and enter a pretrial order. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding, by Chief Judge Philip A. Brimmer on 6/4/2020. Text Only Entry (pabsec2) (Entered: 06/04/2020)

June 4, 2020

June 4, 2020

PACER

Order Referring Case to Magistrate Judge

June 4, 2020

June 4, 2020

PACER
47

ORDER by Magistrate Judge Nina Y. Wang on 6/15/20 Setting Rule 16(b) Scheduling Conference. Proposed Scheduling Order due by 7/7/2020. Telephonic Scheduling Conference set for 7/14/2020 03:30 PM before Magistrate Judge Nina Y. Wang. (nmarb, ) (Entered: 06/16/2020)

June 15, 2020

June 15, 2020

PACER
48

MOTION to Vacate and Continue Deadline to Respond to Complaint and Related Scheduling Deadlines by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) Modified on 6/29/2020 to edit event type. (sphil, ). (Entered: 06/26/2020)

June 26, 2020

June 26, 2020

PACER
49

MEMORANDUM regarding 48 MOTION for Order to Vacate and Continue Deadline to Respond to Complaint and Related Scheduling Deadlines filed by United States Federal Bureau of Prisons, J. Barnhart. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 6/29/2020. Text Only Entry (pabsec2) (Entered: 06/29/2020)

June 29, 2020

June 29, 2020

PACER

Memorandum

June 29, 2020

June 29, 2020

PACER
50

MINUTE ORDER: This matter is before the Court on Defendants' Motion to Vacate the Deadline to Respond to the Current Complaint, the Scheduling Conference, and Related Deadlines 48 . Plaintiff is DIRECTED to file a Response to the Motion on or before Thursday, July 2, 2020. No Reply will be accepted without prior leave or order of the court. By Magistrate Judge Nina Y. Wang on 6/30/2020. Text Only Entry (nywlc1) (Entered: 06/30/2020)

June 30, 2020

June 30, 2020

PACER

Minute Order

June 30, 2020

June 30, 2020

PACER
51

RESPONSE to 48 MOTION to Vacate with Brief in Support filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Candelaria Declaration, # 3 Exhibit Lymon Declaration, # 4 Exhibit Adams Declaration, # 5 Exhibit Holmes Declaration, # 6 Exhibit Upshaw Declaration)(Carminati, Maria-Vittoria) (Entered: 07/02/2020)

1 Exhibit Nellson Declaration

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2 Exhibit Candelaria Declaration

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3 Exhibit Lymon Declaration

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4 Exhibit Adams Declaration

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5 Exhibit Holmes Declaration

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6 Exhibit Upshaw Declaration

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July 2, 2020

July 2, 2020

PACER
52

ORDER granting in part and denying in part 48 Motion to Vacate Deadline to Respond to Current Complaint, the Scheduling Conference, and Related Deadlines. The Telephonic Scheduling Conference currently set for July 14, 2020 at 3:30 p.m. is VACATED and RE-SET to July 28, 2020 at 2:00 p.m. All participants shall use the following dial-in information: 888-363-4749, Access Code: 5738976. ORDERED by Magistrate Judge Nina Y. Wang on 7/6/2020.(cthom, ) (Entered: 07/06/2020)

July 6, 2020

July 6, 2020

PACER
53

Unopposed MOTION for Leave to Amend Complaint by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Amended Complaint, # 2 Exhibit Ex. 1 - Nellson Declaration, # 3 Exhibit Ex. 2 - Candelaria Declaration, # 4 Exhibit Ex. 3 - Lymon Declaration, # 5 Exhibit Ex. 4 - Adams Declaration, # 6 Exhibit Ex.5 - Holmes Declaration, # 7 Exhibit Ex. 6 - Upshaw Declaration, # 8 Exhibit Ex. 7 - BP-10 Response Extension)(Carminati, Maria-Vittoria) (Entered: 07/10/2020)

1 Exhibit Amended Complaint

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2 Exhibit Ex. 1 - Nellson Declaration

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3 Exhibit Ex. 2 - Candelaria Declaration

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4 Exhibit Ex. 3 - Lymon Declaration

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5 Exhibit Ex. 4 - Adams Declaration

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6 Exhibit Ex.5 - Holmes Declaration

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7 Exhibit Ex. 6 - Upshaw Declaration

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8 Exhibit Ex. 7 - BP-10 Response Extension

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July 10, 2020

July 10, 2020

PACER
54

MEMORANDUM regarding 53 Unopposed MOTION for Leave to Amend Complaint filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 7/10/2020. Text Only Entry (pabsec2) (Entered: 07/10/2020)

July 10, 2020

July 10, 2020

PACER

Memorandum

July 10, 2020

July 10, 2020

PACER
55

ORDER granting 53 Plaintiff's Unopposed Motion for Leave to Amend Complaint. Plaintiff shall file a clean version of the red-lined Amended Complaint filed at [53-1] on or before 7/17/2020. By Magistrate Judge Nina Y. Wang on 7/13/2020. Text Only Entry (nywlc1) (Entered: 07/13/2020)

July 13, 2020

July 13, 2020

PACER

Order on Motion for Leave

July 14, 2020

July 14, 2020

PACER
56

AMENDED COMPLAINT against J. Barnhart, J. (I) Barnhart, United States Federal Bureau of Prisons, filed by Edward Nellson. (Attachments: # 1 Ex. 1 Nellson Declaration, # 2 Ex. 2 Candelaria Declaration, # 3 Ex. 3 Lymon Declaration, # 4 Ex. 4 Adams Declaration, # 5 Ex. 5 Holmes Declaration, # 6 Ex. 6 Upshaw Declaration, # 7 Ex. 7 BP-10 Response Extension)(Carminati, Maria-Vittoria) (Entered: 07/16/2020)

1 Ex. 1 Nellson Declaration

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2 Ex. 2 Candelaria Declaration

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3 Ex. 3 Lymon Declaration

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4 Ex. 4 Adams Declaration

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5 Ex. 5 Holmes Declaration

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6 Ex. 6 Upshaw Declaration

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7 Ex. 7 BP-10 Response Extension

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July 16, 2020

July 16, 2020

RECAP

Defendant J. (I) Barnhart (In his Individual capacity) terminated pursuant to 56 Amended Complaint. Text Only Entry (sphil, )

July 16, 2020

July 16, 2020

PACER
57

Proposed Scheduling Order by Defendants J. Barnhart, United States Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/21/2020)

July 21, 2020

July 21, 2020

PACER

~Util - Add and Terminate Parties

July 22, 2020

July 22, 2020

PACER
58

MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit Trujillo Decl.)(Dickey, Lauren) (Entered: 07/27/2020)

1 Exhibit Trujillo Decl.

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July 27, 2020

July 27, 2020

PACER
59

MOTION to Dismiss for Failure to State a Claim by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 07/27/2020)

July 27, 2020

July 27, 2020

PACER
60

COURTROOM MINUTES/MINUTE ORDER for Scheduling Conference held on 7/28/2020 before Magistrate Judge Nina Y. Wang. Parties will submit a proposed ESI protocol or a Joint Status Report on or before 8/18/2020. Discovery due 2/26/2021. Dispositive Motions due 3/29/2021. A Final Pretrial Conference is set for 5/18/2021 11:30 AM in Courtroom A 502 before Magistrate Judge Nina Y. Wang. The parties shall file their proposed pretrial order through CM/ECF and include a courtesy copy of the proposed order in Word format sent by email to Wang_Chambers@cod.uscourts.gov, seven days prior to the conference. FTR: NYW-CRD. (bwilk, ) (Entered: 07/29/2020)

July 28, 2020

July 28, 2020

PACER
61

MOTION to Stay Discovery Pending Resolution of Dispositive Motions by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit)(Dickey, Lauren) (Entered: 07/31/2020)

1 Exhibit

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July 31, 2020

July 31, 2020

PACER
62

RESPONSE to 59 MOTION to Dismiss for Failure to State a Claim filed by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/17/2020)

Aug. 17, 2020

Aug. 17, 2020

PACER
63

RESPONSE to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Plaintiff Edward Nellson. (Attachments: # 1 Exhibit Nellson Declaration, # 2 Exhibit Nellson Grievance, # 3 Exhibit Candelaria Declaration)(Carminati, Maria-Vittoria) (Entered: 08/17/2020)

1 Exhibit Nellson Declaration

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2 Exhibit Nellson Grievance

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3 Exhibit Candelaria Declaration

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Aug. 17, 2020

Aug. 17, 2020

PACER
64

Joint STATUS REPORT by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/18/2020)

Aug. 18, 2020

Aug. 18, 2020

PACER
65

RESPONSE to 61 MOTION to Stay Discovery Pending Resolution of Dispositive Motions filed by Plaintiff Edward Nellson. (Carminati, Maria-Vittoria) (Entered: 08/21/2020)

Aug. 21, 2020

Aug. 21, 2020

PACER
66

MOTION to Withdraw as Attorney (Alexandra Parrott) by Plaintiff Edward Nellson. (Parrott, Alexandra) (Entered: 08/24/2020)

Aug. 24, 2020

Aug. 24, 2020

PACER
67

MEMORANDUM regarding 66 MOTION to Withdraw as Attorney (Alexandra Parrott) filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 8/24/2020. Text Only Entry (pabsec2) (Entered: 08/24/2020)

Aug. 24, 2020

Aug. 24, 2020

PACER
68

MINUTE ORDER granting 66 Motion to Withdraw. Attorney Alexandra Lee Parrott is granted leave to withdraw from representing Plaintiff and is terminated from this case. Plaintiff shall continue to be represented in this matter by attorneys Mario Bernard Williams and Maria-Vittoria G. Carminati. By Magistrate Judge Nina Y. Wang on 8/24/2020. Text Only Entry (nywlc1) (Entered: 08/24/2020)

Aug. 24, 2020

Aug. 24, 2020

PACER

Memorandum

Aug. 24, 2020

Aug. 24, 2020

PACER

Order on Motion to Withdraw as Attorney

Aug. 24, 2020

Aug. 24, 2020

PACER
69

Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/26/2020)

Aug. 26, 2020

Aug. 26, 2020

PACER
70

ORDER by Chief Judge Philip A. Brimmer on 8/27/2020 re: 69 Motion for Extension of Time to File Response/Reply is GRANTED. Defendants shall file a reply to 58 Motion for Summary Judgment on or before September 2, 2020. Text Only Entry(pabsec2) (Entered: 08/27/2020)

Aug. 27, 2020

Aug. 27, 2020

PACER

Order on Motion for Extension of Time to File Response/Reply

Aug. 27, 2020

Aug. 27, 2020

PACER
71

REPLY to Response to 59 MOTION to Dismiss for Failure to State a Claim filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 08/31/2020)

Aug. 31, 2020

Aug. 31, 2020

PACER
72

REPLY to Response to 58 MOTION for Summary Judgment for Failure to Exhaust Administrative Remedies filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Attachments: # 1 Exhibit Morales Decl., # 2 Exhibit Kyles Decl., # 3 Exhibit DuBose Decl., # 4 Exhibit Trujillo Supp. Decl.)(Dickey, Lauren) (Entered: 09/02/2020)

1 Exhibit Morales Decl.

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2 Exhibit Kyles Decl.

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3 Exhibit DuBose Decl.

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4 Exhibit Trujillo Supp. Decl.

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Sept. 2, 2020

Sept. 2, 2020

PACER
73

REPLY to Response to 61 MOTION to Stay Discovery Pending Resolution of Dispositive Motions filed by Defendants J. Barnhart, Federal Bureau of Prisons. (Dickey, Lauren) (Entered: 09/04/2020)

Sept. 4, 2020

Sept. 4, 2020

PACER
74

MOTION for Leave to File an Amicus Brief to save "The Unabomber" by Movant David Andrew Christenson. (sphil, ) Modified on 10/21/2020 should not have been filed - filer not a party to the case - to term and restrict motion per chambers (angar, ). (Entered: 10/20/2020)

Oct. 20, 2020

Oct. 20, 2020

PACER
75

Unopposed MOTION for Extension of Time to Complete Discovery by Plaintiff Edward Nellson. (Attachments: # 1 Proposed Order (PDF Only))(Carminati, Maria-Vittoria) (Entered: 10/21/2020)

1 Proposed Order (PDF Only)

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Oct. 21, 2020

Oct. 21, 2020

PACER
76

MEMORANDUM regarding 75 Unopposed MOTION for Extension of Time to Complete Discovery filed by Edward Nellson. Motion referred to Magistrate Judge Nina Y. Wang, by Chief Judge Philip A. Brimmer on 10/21/2020. Text Only Entry (pabsec2) (Entered: 10/21/2020)

Oct. 21, 2020

Oct. 21, 2020

PACER

Memorandum

Oct. 21, 2020

Oct. 21, 2020

PACER
77

ORDER granting 75 Motion for Extension of Time to File. Designation of Affirmative Experts due 1/19/2021. Designation of Rebuttal Experts due 2/19/2021. 702 Motions due by 3/22/2021. Interrogatories, Requests for Production, and Requests for Admission due 4/12/2021. Discovery due by 5/27/2021. Dispositive Motions due by 6/28/2021. Although the Parties did not seek an extension of the Final Pretrial Conference set for 5/18/2021, granting their requested extensions necessitates rescheduling of that deadline. Accordingly, the Final Pretrial Conference is hereby RESET for 8/25/2021 at 10:00 AM before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 10/22/2020. Text Only Entry(nywlc1, ) (Entered: 10/22/2020)

Oct. 22, 2020

Oct. 22, 2020

PACER
78

ORDER. Defendants' Motion for Summary Judgment 58 is GRANTED. Defendants' Motion to Dismiss 59 is DENIED as moot. Defendants' Motion to Stay Discovery 61 is DENIED as moot. Plaintiff's claims are DISMISSED without prejudice. This case is closed, by Chief Judge Philip A. Brimmer on 10/22/20.(sgrim) (Entered: 10/22/2020)

Oct. 22, 2020

Oct. 22, 2020

RECAP
79

FINAL JUDGMENT re: 78 Order, by Clerk on 10/22/20. (sgrim, ) (Entered: 10/22/2020)

Oct. 22, 2020

Oct. 22, 2020

PACER

Order on Motion for Extension of Time to File

Oct. 22, 2020

Oct. 22, 2020

PACER

Case Details

State / Territory: Colorado

Case Type(s):

Prison Conditions

Special Collection(s):

COVID-19 (novel coronavirus)

Key Dates

Filing Date: March 18, 2020

Closing Date: Oct. 22, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Prisoners at a Colorado high-security prison without access to COVID-19 testing or screening protocols. The proposed class members are all current and future prisoners in the custody of USP Florence and the BOP during the course of the COVID-19 pandemic.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Denied

Defendants

United States Bureau of Prisons, Federal

Warden of USP Florence, Federal

Defendant Type(s):

Corrections

Jurisdiction-wide

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Declaratory Judgment Act, 28 U.S.C. § 2201

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Cruel and Unusual Punishment

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Content of Injunction:

Preliminary relief denied

Issues

General:

Bathing and hygiene

Conditions of confinement

Sanitation / living conditions

Totality of conditions

Crowding:

Crowding / caseload

Medical/Mental Health:

Medical care, general

Medical care, unspecified

COVID-19:

Mitigation Denied

Mitigation Requested

Release Denied

Release Requested

Type of Facility:

Government-run