Free Response in Opposition 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 The Replacement Response Brief And Statement Of Facts To Defendants' M otion For Summary Judgment. Defendants Mendivil, Keesling, Greene, Lance and Corrections Corporation of America (CCA) filed their Motion for Summary Judgment on March 2, 2005.1 That Motion has been DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME TO FILE THE REPLACEMENT RESPONSE BRIEF AND STATEMENT OF FACTS TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

1

Defendant Smelser filed his Motion for Summary Judgment on June 14, 2005, having not been served until after the other Defendants had filed their Motion for Summary Judgment. Case 2:04-cv-00593-SMM-GEE Document 117 Filed 09/26/2005 Page 1 of 3

fully briefed, Defendants having filed their Reply on May 5, 2005, and Plaintiff having filed a Response to Defendants' Motion for Summary Judgement on April 22, 2005. Plaintiff also filed an impermissible sur-reply to Defendants' Reply in Support of Motion for Summary Judgment on June 1, 2005. That thirteen (13) page sur-reply, entitled "Plaintiff's Response to Defendants' Reply in Support of Motion for Summary Judgment", like Plaintiff's Response, cited cases law, cited the record, and made detailed factual and legal arguments in opposition to Defendants' Motion. On June 27, 2005, Plaintiff filed yet another motion for additional time to file a replacement brief in lieu of Plaintiff's Response to Defendants' Motion for Summary Judgment previously filed on April 22, 2005. On August 15, 2005, this Court denied Plaintiff's Motion, finding that Plaintiff may file an additional response only if Defendants chose to petition the Court to strike Plaintiff's Response as procedurally inadequate. Defendants have not additionally moved to strike Plaintiff's April 22, 2005, Response. Therefore, the Court's August 15, 2005, Order stands. Plaintiff may not file a "replacement response brief" in lieu of his Response previously filed on April 22, 2005. Despite the fact that Plaintiff has already responded to Defendants Motion with a twenty-seven (27) page Response and has even filed a sur-reply that are both legally and factually detailed, almost six months later Plaintiff continues to petition the Court for additional time to file a "replacement brief".2 Plaintiff continues to cite his transfer from CCA custody back to the Hawaii Department of Corrections custody and deficient access to the law library in the Hawaii prisons as justification for

2

Plaintiff filed motions for extensions of time to respond to Defendants' Motion for Summary Judgment dated 3/14/05 and 3/28/05. On 4/21/05, this Court set the deadline for Plaintiff to respond to Defendants' Motion for Summary Judgment to May 31, 2005. 2 Case 2:04-cv-00593-SMM-GEE Document 117 Filed 09/26/2005 Page 2 of 3

his continued delay of this matter. However, the substance and sum of Plaintiff's Response and sur-reply defy Plaintiff's argument that he has had inadequate access to his legal materials or a law library. Defendants' Motion for Summary Judgment is fully briefed. Plaintiff has already filed an appropriate and detailed Response. The Court has already decided that Plaintiff shall not file a "replacement brief" unless Defendants move to strike Plaintiff's Response. Defendants will not move to strike. For the foregoing reasons, Defendants respectfully request this Court deny Plaintiff's Motion For Enlargement Of Time To File The Replacement Response Brief And Statement Of Facts To Defendants' Motion For Summary Judgment. RESPECTFULLY SUBMITTED this 26th day of September, 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 with the United States District Court this 26th day of September, 2005, and, 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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3 Document 117 Filed 09/26/2005 Page 3 of 3

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