Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General SUSANNA C. PINEDA Assistant Attorney General State Bar No. 011293 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (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. DEFENDANTS' RESPONSE TO "PLAINTIFF'S EMERGENCY MOTION REQUESTING TO ADD TO EMERGENCY MOTION FOR INJUNCTIVE RELIEF DATED 6/15/05 AND REPLY DATED 6/26/05, EMERGENCY MOTION FOR INJUNCTIVE RELIEF DATED 11/2/05 AND REPLY DATED 11/25/05" No. CV 04-446-PHX-PGR (MS)

Defendants1 hereby respond to Plaintiff's "Plaintiff's Emergency Motion Requesting To Add To Emergency Motion For Injunctive Relief Dated 6/15/05 and Reply Dated 6/26/05, Emergency Motion For Injunctive Relief Dated 11/2/05 and Reply Dated 11/25/05" and respectfully request this Court deny Plaintiff's Motion for the reasons stated in the following Memorandum of Points and Authorities.

Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Sgt. Avalos, Fredrick Ramon, Adrian Parades, Michael Reyna and Dr. Vinluan. Defendant Jones has apparently not been served in this matter.
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. Plaintiff, Albert DeLeon, having been convicted and sentenced, is an inmate currently incarcerated with the Arizona Department of Corrections ("ADC") at the Arizona State Prison Complex ("ASPC")-Lewis-Rast Unit. (AIMS Report available upon request.) On March 3, 2004, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. (Dkt. 1.) The counts that remain in his complaint allege that Defendants retaliated against him by denying him access to his orthopedic shoes and cane, as well as denying him other rehabilitative measures. In it he also contends that he was abused, assaulted, and denied necessary medical care. He further alleged that Defendants were deliberately indifferent to his medical needs when they failed to provide "rehabilitation following his heart attack and that Defendants have submitted him to cruel and unusual punishment by denying him medical care." (Dkt. 3.) On December 14, 2005, Defendants filed their Motion for Summary Judgment. (Dkt. 187.) Plaintiff has subsequently responded. (Dkt. 200.) Defendants' reply is due February 24, 2006. (Dkt. 199.) II. TRO ISSUES. On June 20, 2005, Plaintiff filed a motion for TRO regarding his housing reassignment to another correctional unit. (Dkt. 129) Specifically, Plaintiff sought an order precluding the Arizona Department of Corrections from housing him at the Rast unit instead of the Santa Rita Unit where other inmates were being transferred. Defendants responded on June 23, 2005. (Dkt. 130.) (Id.)

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Five months later, Plaintiff then filed a second "emergency" motion, this time alleging that Dr. Lockhart, a non-defendant physician who is currently treating his medical issues, has threatened to take his wheel chair so that he will be required to ambulate by cane alone. (Dkt. 179.) He asked this Court to prevent the doctor from doing so. (Id.) Defendants responded, noting that Dr. Lockhart was prescribing a treatment plan to better Plaintiff's health for release into the community. (Dkt. 183.) Both motions are pending. (Dkt. 134, 186.) Plaintiff now desires to provide additional evidence for consideration by this Court with respect to his first emergency motion which seeks an order that would prevent ADC from changing his housing assignment. Nothing in Plaintiff's newly submitted evidence supports his motion. His first document appears to be a January 11, 2006 complaint regarding a particular cell assignment. He sought a new cell, stating that his medical needs cause him to wake at night and are disrupting his cellmate's sleep causing tension. However, his motion notes that this cellmate was removed on January 13, 2006. His second document, an affidavit by inmate Orozco, adds nothing to Plaintiff's motion, but merely makes conclusory allegations of poor medical treatment. III. Conclusion. Plaintiffs additional exhibits fail to support his requests for temporary restraining order. For the reasons stated in Defendants' responses filed June 23, 2005 (Dkt. 130), and November 17, 2005, (Dkt. 183), Defendants respectfully requests that this Court deny Plaintiff's motions.

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RESPECTFULLY SUBMITTED this 1st day of February, 2006.

TERRY GODDARD Attorney General

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

Original e-mailed this 1st day of February, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy mailed the same date to: Albert DeLeon #32814 P.O. Box 3300 Lewis-Morey-Red Buckeye, AZ 85326 Plaintiff Pro Se

s/ Colleen Jordan Legal Secretary to Susanna C. Pineda
IDS04-0271/RMG03-03830

945087

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