Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Felipe J. Martinez, Plaintiff, vs. James Baird, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

No. CIV 03-1729 PHX-RCB (LOA) ORDER

This matter arises on Plaintiff's Notice to the Court of Possible Misconduct (document # 92) and Defendants' Response thereto. (document # 93) Plaintiff recently filed a Motion for Summary Judgment. (document # 87)

Thereafter, he filed the pending Notice to the Court claiming that Arizona Department of Corrections ("ADOC") staff tampered with his Motion for Summary Judgment. Plaintiff claims that on September 23, 2005, he gave his motion to ADOC staff to mail to Plaintiff's father for copying. Plaintiff claims that his motion did not reach his father until three weeks later. Plaintiff eventually filed his motion for summary judgment with the Court. Upon receipt of his conformed copy, Plaintiff discovered that approximately 95 pages of his motion, including 22 exhibits were missing. Plaintiff claims that ADOC staff tampered with his motion before mailing it to his father. Counsel for Defendants states that upon review of Defendants' copy of Plaintiff's Motion for Summary Judgment, it appears that the following documents are missing: (1) pages 28 and 41 of Plaintiff's Declaration in Support; (2) page 18 of the Algorithm marked exhibit 7;
Case 2:03-cv-01729-RCB Document 95 Filed 12/09/2005 Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(3) all pages after page 22 of exhibit 29; and (4) page 2 of exhibit 40. (document # 93 at 2) It also appears that the Court's copy of Plaintiff's Motion for Summary Judgment (document # 87) is incomplete. Defendants state that their copy of the Plaintiff's Motion for Summary Judgment does not appear to be missing 95 pages as Plaintiff claims his conformed copy is missing. Defendants surmise that the error made in Plaintiff's exhibits was likely a copying error made by Plaintiff's father. Plaintiff has not provided any evidence to support his claim that ADOC staff tampered with his Motion for Summary Judgment. However, there is no dispute that Plaintiff's Motion for Summary Judgment is incomplete. Because the Motion is incomplete, Defendants cannot adequately respond to Plaintiff's Motion and the Court cannot properly consider the Motion. The Court, therefore, will strike Plaintiff's Motion for Summary Judgment (document # 87). See Fed.R.Civ.P. 12(f). The Court orders that on or before January 5, 2006, Plaintiff shall file a complete copy of his Motion for Summary Judgment, Statement of Facts, and supporting Exhibits with the Court and Defendants. Defendants shall file a response within thirty days from the date that Plaintiff files his complete Motion for Summary Judgment and Statement of Facts. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall strike Plaintiff's Motion for Summary Judgment (document # 87) without prejudice to re-filing. IT IS FURTHER ORDERED that on or before January 5, 2006 Plaintiff shall file a complete copy of his Motion for Summary Judgment, Statement of Facts, and supporting Exhibits with the Court and Defendants. Defendants shall file a response within thirty days from the date that Plaintiff files his complete Motion for Summary Judgment and Statement of Facts. DATED this 8th day of December, 2005.

Case 2:03-cv-01729-RCB

-2Document 95 Filed 12/09/2005

Page 2 of 2