Free Response - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA FELIPE J. MARTINEZ, Plaintiff, v. JAMES W. BAIRD, et al., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S NOTICE TO THE COURT OF POSSIBLE MISCONDUCT AND/OR RETALIATION AGAINST PLAINTIFF AND MOTION FOR ENLARGEMENT TO RESPOND TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT No. CV 03-1729-PHX-RCB (LOA)

Defendants Baird, Jones, Siers, and Macabuhay, respond to Plaintiff's "Notice to the Court of Possible Misconduct and/or Retaliation Against Plaintiff" ("Notice") as follows: In his Notice, Plaintiff advises the Court that he provided his motion for summary judgment to Arizona Department of Corrections ("ADC") staff on September 23, 2005, for mailing. (Notice at 1.) He claims that the motion did not get to its intended destination (his father) until three weeks later. (Id.) Plaintiff filed his Motion for Summary Judgment with the Court. (Notice at 2.) Upon receiving his conformed copy of the motion from the Clerk's Office, Plaintiff discovered that approximately 95 pages of his motion, including 22 exhibits, were missing. (Id.)

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Plaintiff argues that ADC staff tampered with his motion before mailing it out which resulted in the missing pages. (Notice at 2-3.) Upon review of the copy of Plaintiff's Motion for Summary Judgment received by undersigned counsel, it appears that the following documents are missing: pages 28 and 41 of Plaintiff's Declaration in Support, page 18-18 of the Algorithm marked exhibit 7, all pages after page 22 of Exhibit 29, and page 2 of Exhibit 40. It does not appear that there are 96 pages missing as contended by Plaintiff. The exhibits received by undersigned counsel were not in order which appears to be a mistake made when the motion was copied. This is supported by the fact that Plaintiff's conformed copy is apparently missing more pages than the Defendants. As Plaintiff previously informed this Court, he mailed his motion for summary judgment to his father for copying and filing with the Court. It appears from the Court's docket that Plaintiff's Motion for Summary Judgment filed with the Court is also missing exhibit pages. Other than his own presumptions, Plaintiff fails to provide any evidence of tampering or any involvement of the Defendants. Defendants Jones and Siers are no longer employed by the ADC. Defendants Dr. Baird and Dr. Macabuhay are not involved with inmate mail and are not located at the ASPC-Tucson. It appears that the error made in Plaintiff's exhibits was merely a copying error made by his father. In response to a letter received by Plaintiff regarding the missing exhibit pages, counsel has informed Plaintiff of the exhibit pages that appear to be missing from her copy. Because it is unclear exactly how many pages are missing since the Motion for Summary Judgment and Statement of Facts filed with the Court is also missing exhibits pages, Defendants respectfully request this Court order Plaintiff to re-file a complete copy of his Motion for Summary Judgment and Statement of Facts with exhibits upon this Court and the Defendants. Upon receipt of the complete Motion, Defendants will be able to respond to Plaintiff's Motion for Summary Judgment.

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Accordingly, Defendants request thirty days from the date Plaintiff submits a complete Motion for Summary Judgment and Statement of Facts to file their response. RESPECTFULLY SUBMITTED on this 5th day of December, 2005. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL and One copy of the foregoing filed this 5th day of December, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 5th day of December, 2005, to: _ Felipe J. Martinez, #102001 ASPC-Tucson-Santa Rita Unit P.O. Box 24406 Tucson, AZ 85734 Plaintiff Pro Per s/A. Palumbo Secretary to Kelley J. Morrissey
IDS03-0579/RM#G03-04130 936978

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