Free Response to Motion - District Court of Arizona - Arizona

Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-7323 Facsimile No.: (602) 200-7811 E-Mail: [email protected] E-Mail: [email protected] Attorneys for Defendants Kimberly Mendivil, John Keesling, Michael Greene, Frank Lane, Corrections Corporation of America, Florence Correctional Center, Richard Smelser UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Allen P. Branco NO. CIV 04-593 PHX-SMM (GEE) Plaintiff, v. Corrections Corporation of America; Florence Correctional Center; Warden Richard Smelser; Medical Unit of Florence Correctional Center; Corrections Officer M andavile Nurse Frank Lane Defendants. Defendants, through counsel, hereby respond in opposition to Plaintiff's Motion for Enlargement of Time to File Response to Defendant Smelser's Motion for Summary Judgment. Defendant Smelser filed his Motion for Summary Judgment on June 14, 2005. By Court Order dated 10/18/05, Plaintiff's Response was due on October 30, 2005. To date, Plaintiff has not filed his Response and has offered no specific reason to this Court justifying the need for yet another extension. Therefore, pursuant to Local Rule 7.2(i), this Court should find Plaintiff's nearly five month DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME TO FILE RESPONSE TO DEFENDANT SMELSER'S MOTION FOR SUMMARY JUDGMENT/MOTION FOR SUMMARY DISPOSITION

Case 2:04-cv-00593-SMM-GEE

Document 125

Filed 11/01/2005

Page 1 of 3

failure to respond to Defendant Smelser's Motion for Summary Judgment is consent to this Court granting Defendant Smelser's Motion. It has now been almost five months since Defendant Smelser filed his Motion and to date, and now four motions for extensions later, Plaintiff continues to delay these proceedings and request further unjustified extensions of time to respond. See Motion for extensions of time to file a response brief to Defendant Smelser's Motion for Summary Judgment dated September 19, 26 and 20, 2005; and October 27, 2005. All of Plaintiff's extension request were granted by the Court, with no objection by Defendants. The time has now come for Plaintiff to comply with the Court's orders and timely file his Response. Here, Plaintiff has already responded to Defendants Mendivil, Keesling, Green, Lane and Corrections Corporation of America's Motion for Summary Judgment filed March 2, 2005. The claims asserted against Defendant Smelser arise from the same set of facts as those claims asserted against the other Defendants. The only issue in this case is whether Defendants violated Plaintiff's constitutional rights by permitting Defendant Mendivil to allegedly slam a prison security gate on Plaintiff. Because the factual and legal basis for Plaintiff's Response should be similar to that previously filed in Response to the other Defendants' Motion for Summary Judgment, there can be no justification for delay of almost five months in filing a Response to Defendant Smelser's M otion. Plaintiff's most recent excuse of "unforeseen

circumstances" does not suffice to continue the delay of these proceedings. With Plaintiff's continued delay and dilatory conduct, prejudice to Defendants continues mount as memories fade and the correctional officers involved in the alleged incident change employment and move on.

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Based upon the foregoing, Defendants request pursuant to Local Rule 7.2(i), that Plaintiff's failure to respond to Defendant Smelser's Motion for Summary Judgment be deemed consent to this Court granting Defendant Smelser's Motion. In the alternative, Defendants respectfully request this Court deny any further extension requests filed by Plaintiff. In addition,

DATED this 1st day of November, 2005. J ONES, S KELTON & H OCHULI, P.L.C.

By s/ Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Kimberly Mendivil, John Keesling, Michael Greene, Frank Lane,Corrections Corporation of America, Florence Correctional Center, and Richard Smelser ORIGINAL of the foregoing e-filed this 1st day of November, 2005, with the Clerk of the United States District Court, District of Arizona. COPY of the foregoing mailed even date to: Allen P. Branco, #A5005915 Module 2-B-1 Halawa Correctional Facility 99-902 Moanalua Hwy. Aiea, Hawaii 96701 Plaintiff Pro Per s/ Francine Gatto

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