Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Paul E. Rhodes, Plaintiff, vs. Quirino Valeros, et al., Defendants.

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No. CV 04-0644-PHX-JAT (MS) ORDER

Plaintiff, a pro se prisoner, filed an Amended Complaint in his 42 U.S.C. § 1983 civil
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rights action, against 10 named Defendants (Dkt. # 27).1 Defendants filed answers (Dkts. ##28, 37) and discovery was conducted. Plaintiff filed a motion to amend/correct his

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Complaint, attaching his Second Amended Complaint (Dkt. # 55). In his proposed Second
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Amended Complaint, Plaintiff sought to add three Defendants, Dennis Chenail, Judy Aguilar,
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and Carrie Feehan, and reasserted his claims of deliberate indifference to his medical needs
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(Count I) and due process violation (Dkt. #55). The original 10 Defendants filed a motion
21 22 23 24 25 26 27 28 Because the Second Amended Complaint is identical to the Amended Complaint, with the exception of the three additional Defendants, this Court will not allow the new Defendants to join the pending Motions for Summary Judgment, and will not allow additional briefing as to those motions. Moreover, the Court will not delay ruling on the motions. Document 80 Filed 05/18/2006 Page 1 of 5
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for summary judgment (Dkt. # 56).2

The Defendants included Susan Buffington, Vern Strubeck, Terry Allred, Gary Pinkstaff, Richard Pratt, Shiflett, Rivas, Greeley, Michael C. Lesac, and Kim Kumar.

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The Magistrate Judge issued a report and recommendation addressing Plaintiff's Motion to Amend, recommending that the unopposed motion be granted as to Plaintiff's claim of deliberate indifference to his medical needs, but denied as to Plaintiff's allegation of a violation of his Due Process rights (Dkt. # 66). Notably, Plaintiff had attempted on two prior occasions to allege a due process violation. On both occasions, this Court dismiss the claim without prejudice because Plaintiff failed to sufficiently allege that he had a liberty interest. The Magistrate Judge recommended that additional discovery be authorized with respect to the new defendants, and that these defendants be permitted to join in the pending motion for summary judgment or alternatively file a separate motion for summary judgment (Id.). Plaintiff subsequently filed a motion for summary judgment (Dkt. #73). Notably the motions for summary judgment are ready for adjudication. A. Motion to Amend The Magistrate Judge's report and recommendation will be adopted in part. Plaintiff's Motion to Amend his Complaint (Dkt. #55) will be granted. Plaintiff's Second Amended Complaint, attached to his motion, will be filed as a Second Amended Complaint. Defendants Chenail, Aguilar, and Feehan will be ordered to answer Count I. However, because Plaintiff fails to sufficiently allege that he has a liberty interest, Count II will be dismissed without prejudice. See 28 U.S.C. § 1915A(a) (requiring this Court to dismiss a complaint or portion thereof if the Plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief). The new Defendants will not be allowed to join the pending Motion for Summary Judgment because that motion is ready for ruling. B. Warnings 1. Address Changes Plaintiff must file and serve a notice of a change of address 10 days before his move is effective, ir practicable. See LRCIV 83.3(d). Plaintiff shall not include a motion for other relief with his notice of change of address. Failure to comply may result in dismissal.
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2. Copies Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed.R.Civ.P. 5(a). Each filing must be accompanied by a certificate stating that a copy of the filing was served. Fed.R.Civ.P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. LRCiv. 5.4. The Court may strike any filing that fails to comply with these requirements. IT IS THEREFORE ORDERED THAT: (1) The Magistrate Judge's Report and Recommendation (Dkt. # 66) is adopted. (2) Plaintiff's Motion to Amend his Complaint (Dkt. #55) is granted. (3) The Clerk of Court is directed to file Plaintiff's Second Amended Complaint, attached to his Motion to Amend (Dkt. #55), as a Second Amended Complaint. (4) Count II is dismissed without prejudice. (5) Defendants Chenail, Aquilar, and Feehan are ordered to answer Count I, Plaintiff's claim of deliberate indifference to his medical needs. (6) The Clerk of Court shall send Plaintiff a service packet including the Second Amended Complaint, this Order, and both summons and request for waiver forms for Defendants Chenail, Aguilar, and Feehan. (7) Plaintiff shall complete and return the service packet to the Clerk of Court within 20 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (8) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Second Amended Complaint on each Defendant within 120 days of the filing of the second amended complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Local Rule of Civil Procedure 16.2(b)(2)(B)(i). (9) The United States Marshal shall retain the Summons, a copy of the Second Amended Complaint, and a copy of this Order for future use.
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(10) The United States Marshal shall notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that were returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant within thirty days from the date the request for waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the Summons, Second Amended Complaint, and this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; (b) Within 10 days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the Summons, Second Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (11) A Defendant who agrees to waive service of the Summons and Second Amended Complaint shall return the signed waiver forms to the United States Marshal, not the Plaintiff. (12) Defendants shall answer the Second Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. (13) Any answer or responsive pleading shall state the specific Defendant(s) by name on whose behalf it is filed. The Court may strike any answer, responsive pleading, or other
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motion or paper that does not identify the specific Defendant(s) by name on whose behalf it is filed. DATED this 16th day of May, 2006.

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