Free Reply to Response to Motion - 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

FADELL, CHENEY & BURT, P.L.L.C. 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006
Telephone: (602) 257-5601 /E-mail: [email protected] Telephone (602) 257-7911 / E-mail: [email protected]

Gary A. Fadell ­ 005879 Gabriel V. Kory -- 022536

Attorneys for Defendant Lizarraga IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jay Jeffers, Jr., Plaintiff vs. Officer Ortega; Corporal Williams; Officer Spurlock; and Doctor Lizarraga, Defendants No. CV 2004-0572-PHX-MHM (MS) DEFENDANT DARIO LIZARRAGA, M.D.'S REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

Pursuant to Rule 12(c), Fed. R. Civ. P., Defendant Dario Lizarraga, M.D. ("Dr. Lizarraga"), hereby files his Reply in Support of his Motion for Judgment on the Pleadings. Dr. Lizarraga is entitled to judgment as a matter of law, because Plaintiff's claims under 42 U.S.C. § 1983 are untimely and, accordingly, must be dismissed with prejudice. Moreover, Plaintiff has failed to respond to Dr. Lizarraga's Motion1. Pursuant to Rule 7.2(i), Rules of Practice of the United States District Court for the District of Arizona ("Local Rules"), this Court may treat this failure to respond as consent to the

Although Plaintiff filed two untimely Responses, neither addressed Defendant's contention that Plaintiff's claims are barred by the applicable statute of limitations. In addition, neither Response presented the requisite evidence to show that Plaintiff exhausted all his available administrative remedies as mandated by 42 U.S.C. § 1997e(a).

1

Case 2:04-cv-00572-MHM-LOA

Document 97

Filed 11/17/2005

Page 1 of 4

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

granting of the Motion and may dismiss his case with prejudice. This Reply is supported by the following Memorandum of Points and Authorities and the entire record. MEMORANDUM OF POINTS AND AUTHORITIES I. LEGAL ARGUMENT A Rule 12(c) motion will be granted if the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999). In deciding a motion for judgment on the pleadings, the Court may consider the factual allegations in the Complaint, documents attached to the Complaint as an exhibit or incorporated by reference, and matters of which judicial notice may be taken. Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002). Dr. Lizarraga has met his burden of showing that the two-year statute of limitations governing Plaintiff's claims has run in this case. Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (affirming Arizona District Court's dismissal of pro per prisoner's § 1983 action alleging deliberate indifference of his serious medical needs by Arizona Department of Corrections employees on statute of limitations grounds). As detailed in Dr. Lizarraga's Motion, Mr. Jeffers' § 1983 claims stem from events that allegedly occurred on January 12, 2001, January 30, 2001, or alternatively, at an unspecified time during his incarceration (ending on April 2, 2001). Any of these time periods are outside the two-year statute of limitations, thereby time barring Plaintiff's Complaint. In addition, Dr. Lizarraga is entitled to judgment as a matter of law based on Plaintiff's failure to present evidence of his grievances, grievance appeals, or any other evidence showing that he has exhausted all available administrative remedies as required by 42 U.S.C. § 1997e(a). 2
Nevertheless, if the Court is not inclined to summarily dismiss Dr. Lizarraga from this case, Defendant can provide the Court with the deposition testimony of Plaintiff. In his deposition taken on November 15, 2005, Mr. Jeffers testified that Dr. Lizarraga was a good doctor who provided him with proper care and
2

F:\GAF\Jeffers\Pldg\Motion to Dismiss --REPLY Motion for Judgment on the Pleadings.doc Case 2:04-cv-00572-MHM-LOA Document 97 Filed 11/17/2005

2

Page 2 of 4

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

II.

CONCLUSION First, Mr. Jeffers waited more than two years after he suffered his alleged injury to

file his Complaint. Therefore, the action is untimely and barred by the statue of limitations. Second, Mr. Jeffers failed to respond to Defendant's Motion; as a result, the Court may summarily grant Defendant's Motion and dismiss Plaintiff's Amended Complaint with prejudice pursuant to Local Rule 7.2(i). Finally, Plaintiff has not presented any evidence that he exhausted his exhaustion of his available administrative remedies as required by 42 U.S.C. § 1997e(a). DATED this 17th day of November, 2005. FADELL, CHENEY & BURT, P.L.L.C. By s/ Gabriel V. Kory___ Gary A. Fadell Gabriel V. Kory 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006 Attorneys for Defendant Lizarraga

treatment, and that his alleged injury was not Dr. Lizarraga's fault, because Dr. Lizarraga cannot control what the guards do. In short, Mr. Jeffers had no criticisms of Dr. Lizarraga.

F:\GAF\Jeffers\Pldg\Motion to Dismiss --REPLY Motion for Judgment on the Pleadings.doc Case 2:04-cv-00572-MHM-LOA Document 97 Filed 11/17/2005

3

Page 3 of 4

1 2

CERTIFICATE OF SERVICE

I hereby certify that on November 17, 2005, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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

John T. Masterson [email protected], [email protected] I hereby certify that on November 17, 2005, I served the attached document by mail on the following, who is not a registered participant of the CM/ECF System: Jay Jeffers, Jr. Pinal County Jail P.O. Box 2610 Florence, Arizona 85232

s/ Cindy M. Lavin

F:\GAF\Jeffers\Pldg\Motion to Dismiss --REPLY Motion for Judgment on the Pleadings.doc Case 2:04-cv-00572-MHM-LOA Document 97 Filed 11/17/2005

4

Page 4 of 4