Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Albert DeLeon, plaintiff, vs. Dora Schriro, et al., defendants. Mr. Alberto DeLeon filed this civil rights action on March 3, 2003 when he was incarcerated in the Arizona Department of Corrections.1 Mr. DeLeon was not represented by counsel when he filed his Complaint, during the course of pretrial discovery, or when responding to Defendants' voluminous Motion for Summary Judgment. Mr. DeLeon is a high school drop-out with no formal education. He has spent most of his adult life in prison and is far from adept in basic reading and writing. Moreover, during the course of this litigation, Mr. DeLeon has also suffered from severe heart disease, has been confined to a wheel-chair, and has had virtually no access to computers, a law library, or any of the other resources that would help him prosecute this action. The Ninth Circuit has repeatedly recognized the pervasive difficulties that a prisoner proceeding pro se faces when litigating a civil rights case in the federal courts. For
See Verification of Albert DeLeon, attached hereto as Exhibit A.

No. CV 04-446-PHX-PGR (JI) Motion to Re-open Discovery (Evidentiary Hearing Requested)

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example, in Rand v. Roland, 154 F.3d 952, 958 (9th Cir. 1998), the Ninth Circuit observed that: [T]he pro se prisoner litigant . . . faces the unique handicaps of incarceration. . . . The reality of incarceration is . . . that prisoners are not at liberty to seek out representation. Prisoners are limited in their ability to interview witnesses and seek out evidence that they must submit in order to defeat a motion for summary judgment. Pro se prisoners are also limited in their access to legal materials. Finally, confinement makes compliance with procedural deadlines difficult because of restrictions on the prisoner's ability to monitor the lawsuit's progress. (Internal citations and quotation marks omitted.) These difficulties reach their zenith when a disabled pro se prisoner is confronted with a motion for summary judgment. As the Ninth Circuit has noted: The summary judgment motion requires the pro se prisoner to confront a myriad of challenges. Unschooled in the intricacies of civil procedure, the lay litigant's intuition is that his or her claim will proceed to trial regardless of the outcome of a "summary judgment motion." For pro se prisoners, this intuition is reinforced by their experience with the criminal justice system, which has no counterpart to the summary judgment motion. In sum, "it would not be realistic to impute to a prison inmate ... an instinctual awareness that the purpose of a motion for summary judgment is to head off a full-scale trial by conducting a trial in miniature, on affidavits, so that not submitting affidavits is the equivalent of not presenting any evidence at trial." Rand v. Roland, 154 F.3d 952, 958 (9th Cir. 1998) (internal citations and quotation marks omitted.). See also, Hudson v. Hardy, 412 F.2d 1091, 1095 (D.C.Cir.1968) (per curiam) (prisoners lack sufficient access to sources of proof needed to demonstrate the existence of a question of material fact). Mr. DeLeon finished his sentence at the Arizona Department of Corrections on June 12, 2006. When Mr. DeLeon was released from the Arizona Department of Corrections, he continued to be confined to a wheelchair as a result of the injuries that he suffered while incarcerated at the Arizona Department of Corrections. Moreover, based upon Mr. DeLeon's disabilities and illnesses, he is highly medicated
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and takes approximately five prescription medications on a daily basis, including a powerful pain killer that undermines his powers of concentration. Notwithstanding these obstacles, upon being released from the Arizona Department of Corrections on June 12, 2006, Mr. DeLeon spent hour upon hour on the telephone attempting to secure the representation of private counsel to help him prosecute this case. Mr. DeLeon contacted approximately twenty-five to thirty attorneys in the greater Phoenix area seeking representation. Notwithstanding his efforts, Mr. DeLeon was unable to retain counsel. Finally, Mr. DeLeon first contacted undersigned counsel's office by telephone during the last week of October of this year. Although undersigned counsel was busy preparing for a trial before another judge of this Court when he spoke to Mr. DeLeon, he agreed to take Mr. DeLeon's case after having the opportunity to briefly review Mr. DeLeon's file and this Court's Order of September 13, 2006 denying (in part) Defendants' Motion for Summary Judgment. As evidenced by this Court's Order of September 13, 2006 denying Defendants' Motion for Summary Judgment, Mr. DeLeon has meritorious claims against Defendants. However, because Mr. DeLeon is not a lawyer, because he is confined to a wheelchair, and because he has no formal education, Mr. DeLeon was unable to engage in meaningful discovery in order to establish many of the claims dismissed by this Court's Order of September 13, 2006. This is especially significant because in this Court's Order of September 13, 2006, this Court concluded that Mr. DeLeon had presented "absolutely no evidence" that the alleged misconduct of the Defendants caused him to have a heart-attack and otherwise resulted in the injuries that now have confined Mr. DeLeon to live the rest of his life in a wheelchair. See Order of September 13, 2006, p. 7, lines 12-14. In short, this Court's Order of September 13, 2006 dismissed the heart of Mr. DeLeon's damage claims against Defendants.
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Now that Mr. DeLeon has successfully retained undersigned counsel, the interests of justice requires that Mr. DeLeon be given a reasonable opportunity to engage in additional discovery in this case. Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), is illustrative. Specifically, in reversing a district court's entry of summary judgment against a pro se prisoner's civil rights claim in the face of the prisoner's request to engage in additional discovery, the Ninth Circuit concluded: Though the conduct of discovery is generally left to a district court's discretion, summary judgment is disfavored where relevant evidence remains to be discovered, particularly in cases involving confined pro se plaintiffs. Id. at 930. In this case, Mr. DeLeon needs to engage in additional discovery in order to (among other things) allow Mr. DeLeon to establish the factual predicate for his damage claims against Defendants. It is undisputed that: · As a result of an 1973 automobile accident unrelated to this case, Mr. DeLeon has a plastic prosthetic right ankle and the bones of his left ankle are frozen and unable to move in any way. Both of Mr. DeLeon's legs were broken in multiple places in the 1973 automobile accident and his right leg is an inch and a half longer than his left leg; · As a result of these injuries, Mr. DeLeon must use a cane and orthopedic shoes to walk; · ADOC authorized Mr. DeLeon to use a cane and orthopedic shoes based on his disability; · On October 17, 2002, ADOC took away Mr. DeLeon's cane and orthopedic shoes and made him walk with his hands cuffed behind his back and his legs shackled from East Unit at the ADOC Prison Complex in Florence to a
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maximum security facility at Central Unit; · Although ADOC claims that it had a legitimate interest in confiscating Mr. DeLeon's cane and orthopedic shoes, ADOC has not explained why it could not have transported Mr. DeLeon in a wheelchair and why it forced him to walk from East Unit to Central Unit; · Still without the assistance of his cane and orthopedic shoes, ADOC forced Mr. DeLeon to drag himself up six flights of stairs at Central Unit with his hands cuffed behind his back and his legs shackled; · Immediately after this episode, Mr. DeLeon started to have severe chest pains and was taken to Saint Mary's Hospital and diagnosed as having suffered a heart attack; · ADOC never provided another cane to Mr. DeLeon until March 8, 2005, two years, four months, nineteen days after ADOC initially took away Mr. DeLeon's cane on October 17, 2002; · ADOC never returned Mr. DeLeon's orthopedic shoes to him; · Mr. DeLeon has been confined to a wheelchair since October 17, 2002. These facts demonstrate that Mr. DeLeon has meritorious damage claims against Defendant and with that the benefit of further discovery he could establish a causal link between the Defendant's alleged misconduct and his damages, including his heart attack. Accordingly, for the foregoing reasons, Plaintiff respectfully requests the Court to reopen discovery in this matter for a period of ninety days. Moreover, Plaintiff requests an evidentiary hearing in order to more fully establish the facts set forth in this Motion.

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Dated the 30th day of November 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

I hereby certify that on November 30, 2006, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing: Terry Goddard Attorney General Susanna C. Pineda Assistant Attorney General 1275 West Washington Phoenix, Arizona 85007 Attorneys for Defendants s/ Stephen G. Montoya

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