Free Response - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Albert DeLeon, Plaintiff, v. Dora Schriro, et al., Defendants. No. CV 04-0446 PHX PGR (MS) DEFENDANTS' RESPONSE AND MOTION TO STRIKE PLAINTIFF'S "EMERGENCY MOTION REQUESTING TO ADD FINAL EXHIBITS TO HIS EMERGENCY MOTION DATED 2/24/06"

This Court granted Plaintiff's Second "Emergency Motion Requesting to Add Final Exhibits to his Emergency Motion dated 2/24/06." (Dkt. 211). The time for Defendants' response has not yet passed. LRCiv 7.2(c). Defendants1, by and through undersigned counsel, respectfully request that this Court vacate its order of March 9, 2006, (Dkt. 211), and consider the following response and motion to strike Plaintiff's Second Emergency Motion as redundant, immaterial, impertinent, and scandalous, pursuant to Rule 12(f), Fed. R. Civ. P. Authorities. This motion is supported by the following Memorandum of Points and

Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Frederick Ramon, Andres Avalos, Adrian Paredez, Michael Reyna and Dr. Vinluan.
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1 2 3 4 5 6 7 8 9 12(f) if the contested language constitutes an "insufficient defense or any redundant, 10 immaterial, impertinent, or scandalous matter." Fed. R. Civ. Pro. 12(f). 11 matter" is that which "consists of allegations that constitute a needless repetition of other 12 averments." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 13 § 1382, at 704 (2d ed.1990). Matter which is "immaterial" is "that which has no essential 14 or important relationship to the claim for relief or the defenses being pleaded." Fantasy, 15 Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 16 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (citing 5A Charles Alan Wright & Arthur R. 17 Miller § 1382, at 706-07) (internal citations omitted). "`Impertinent' matter consists of 18 statements that do not pertain, and are not necessary to the issues in question." Id. (citing 19 5A Charles Alan Wright & Arthur R. Miller § 1382, at 711). "Scandalous" matter 20 "improperly casts a derogatory light on someone, most typically on a party to the action." 21 5A Charles Alan Wright & Arthur R. Miller § 1382, at 712. 22 The deadline for requesting discovery in this matter as to all parties except 23 Defendant Reyna was September 15, 2005, pursuant to this Court's Scheduling Order. 24 (Dkt. 127). 25 November 18, 2005. (Dkt. 165). Discovery was completed by Defendants and served on 26 The deadline for requesting discovery involving Defendant Reyna was "Redundant RESPECTFULLY SUBMITTED this 10th day of March, 2006. Terry Goddard Attorney General s/Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES A court may grant a motion to strike pursuant to Federal Rule of Civil Procedure

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Plaintiff no later than December 15, 2005. (Dkt. 189). Defendants filed their Motion for Summary Judgment on December 14, 2005. (Dkt. 187). Plaintiff responded to

Defendants' Motion for Summary Judgment on January 30, 2006, (Dkt. 200), and Defendants replied in support of their motion on February 14, 2006. (Dkt. 204). On March 1, 2006, nearly thirty days after he filed his Response to Defendants' Motion for Summary Judgment, Plaintiff filed an emergency motion requesting that this Court allow him to add Exhibit 10 to his Response. (Dkt. 207). In his motion, Plaintiff stated that he inadvertently omitted this material from his Response because he was unable to locate it until that date. (Id.) Because the documents that comprise Plaintiff's Exhibit 10 were included in Defendants' Statement of Facts in Support of their Motion for Summary Judgment as Exhibit F, (Dkt. 188), Defendants did not object to Plaintiff's request. This Court granted Plaintiff's motion on March 6, 2006. (Dkt. 208). Now pending before this Court is Plaintiff's "Emergency Motion Requesting to add Final Exhibits to his Emergency Motion dated 2/24/06." (Dkt. 210). Defendants object to this motion and request that this Court strike this pleading for the reasons discussed below. While Plaintiff apologizes in his motion for his "oversight," he gives no reasons that can be construed as constituting good cause for his failure to attach these materials to his Response when he filed it with this Court. These documents were disclosed to Plaintiff and in his possession prior to the deadline for him to respond to Defendants' Motion for Summary Judgment. Additionally, several of the Exhibits that Plaintiff proposes to add to his Response are immaterial to the issues before this Court. Plaintiff alleges in his Complaint that he suffered a heart attack because Defendants failed to follow medical orders forbidding him to climb stairs. However, the Health Needs Requests ("HNRs") and the Special Needs Orders ("SNOs") that Plaintiff seeks to add to his response were all issued after Plaintiff suffered his heart attack. Thus, these documents are immaterial to this issue.

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Finally, even if this Court decides to allow Plaintiff to add these exhibits to his Response, Plaintiff's motion also contains three full pages of additional argument setting forth his reasons why this Court should deny Defendants' Motion for Summary Judgment. These three pages constitute a sur-reply and are not permitted under the federal rules or Arizona Local Rule 7.2, which permit a motion, a response, and a reply. Because there are no provisions for a sur-reply, these three pages of argument should be stricken. CONCLUSION Because Plaintiff has failed to show good cause and neither the Federal Rules of Civil Procedure nor the Local Rules permit a reply to a reply, Defendants request that this Court deny and strike Plaintiff's "Emergency Motion Requesting to add Final Exhibits to His Emergency Motion dated 2/24/06" for the reasons set forth herein. RESPECTFULLY SUBMITTED this 10th day of March, 2006. Terry Goddard Attorney General

s/Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 10th day of March, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Colleen S. Jordan Legal Secretary to: Susanna C. Pineda IDS04-0271/RSK:G03-03830 JLQ/#950798 Albert DeLeon, #032814 ASPC - Lewis - Rast Unit P.O. Box 3600 Buckeye, AZ 85326

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