Free Response to Motion - District Court of Arizona - Arizona

John T. Masterson, 007447 JONES, SKELTON & HOCHULI, P.L.C. Suite 800 2901 North Central Avenue Phoenix, Arizona 85012 602-263-1700 Attorneys for Defendants Tanya (Williams) Gant, Joseph Ortega and Rebecca Spurlock

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAY JEFFERS, JR., NO. CV'04 0572-PHX-MHM (MS) RESPONSE TO PLAINTIFF'S "REQUEST FOR MOTION FOR JUDGMENT IN PLAINTIFF FAVOR ON THE U.S. MAIL ISSUES AND AS WELL AS ALL OTHER ISSUES"

Plaintiff, v.

OFFICER ORTEGA; CORPORAL WILLIAMS; OFFICER SPURLOCK; and DOCTOR LIZARRAGA, Defendants. Defendants, Officer Ortega, Corporal W illiams, and Officer Spurlock, respond to Plaintiff's "Request for Motion for Judgment in Plaintiff Favor on the U.S. Mail Issues and as Well as All Other Issues" and respectfully request the Court to deny the Motion for the reason that it clearly appears that Plaintiff has had no difficulty providing this Court and defense counsel with a barrage of filings while incarcerated in the Pinal County Jail. Moreover, any such issues related to Plaintiff's purported inability to have mail sent by Pinal County Jail officials to the Courts have been rendered moot due to Plaintiff's release from the Pinal County Jail on January 21, 2006. Case 2:04-cv-00572-MHM-LOA Document 129 Filed 02/24/2006 Page 1 of 5

Finally, while Plaintiff's Motion, in its title, requests judgment on "All Other Issues," the Motion only addresses, or seems to address, the issues related to the U.S. Mail. Plaintiff's Memorandum does not discuss any of the other claims set forth in his Complaint. This response is supported by the following Memorandum of Points and Authorities and the record before the court. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's Motion, while difficult to understand, seems to refer to two separate issues. The first issue relates to legal docum ents supposedly sent to the Honorable Boyd T. Johnson, Judge of the Pinal County Superior Court. Defendants assume that any such documents must pertain to a criminal prosecution against Plaintiff. If that is the case, any such claims made by Plaintiff that relate to that criminal prosecution are not set forth in his Complaint in this matter and, in addition, would be barred by the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court ruled that: In order for a Plaintiff to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 Plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus,. . .. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983. Here, any claims Plaintiff may have related to his criminal prosecution should be addressed in that court. If Plaintiff has been harmed by the alleged failure to comply with court orders in that criminal action or to file appropriate 2 Case 2:04-cv-00572-MHM-LOA Document 129 Filed 02/24/2006 Page 2 of 5

documents in that criminal action, those matters should be addressed in the Superior Court. In this case, Plaintiff has not demonstrated that his conviction or sentence has already been invalidated. Any claims that Plaintiff has related to an alleged inability to successfully defend himself in a criminal prosecution in Superior Court must be dismissed. Plaintiff also seems to argue, at length, that he has been unable to send appropriate documents to this Court and defense counsel. Defense counsel's file certainly belies that claim. Defense counsel can only guess that Plaintiff must be referring to his responses to Motions for Summary Judgment or Motions for Judgment on the Pleadings filed by all Defendants. Defendants have received several documents from Plaintiff since the filing of Defendant Lizzaraga's Motion for Judgment on the Pleadings, including documents that seem to be a response to that Motion. It appears that Plaintiff has not

responded to these Defendants' Motion for Partial Summary Judgm ent, although he has filed a number of documents since these Defendants filed their Motion on December 16, 2005. This Court's file, if at all similar to defense counsel's, should reflect that Plaintiff is a prolific writer and filer of legal documents. There is no

evidence that any officials at the Pinal County Jail ever blockaded any of Plaintiff's attempts to file documents with the Court. In fact, in an Order dated September 23, 2005, this Court previously ruled that "Plaintiff has demonstrated that he has access to writing materials, as evidenced by his numerous, recent filings in the case." In short, these issues have already been considered by this Court and rejected. Finally, Plaintiff has been released from the Pinal County Jail. Any alleged deficiencies between the Pinal County Jail and the United States Postal 3 Case 2:04-cv-00572-MHM-LOA Document 129 Filed 02/24/2006 Page 3 of 5

Service are no longer an issue. Plaintiff still needs to file a response to these Defendants' Motion for Partial Summ ary Judgment, if the Court so allows. (Plaintiff's Court-ordered response time has already passed.) Plaintiff should do so, if permitted. Plaintiff's Motion regarding the U.S. Mail should be denied. Any issues he has related to the criminal prosecution in Superior Court should be addressed in that Court. Any issues related to the U.S. Mail and the Pinal County Jail have previously been rejected by this Court and, in any event, have no bearing on any of the issues related to Defendant Lizzaraga's Motion for Judgment on the Pleadings and these Defendants' Motion for Partial Sum mary Judgment. The record clearly reflects that Plaintiff has had no difficulty filing multiple and voluminous docum ents with the Court. Plaintiff should respond to all pending motions at this time. DATED this 24 th day of February, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By

/s/John T. Masterson John T. Masterson Suite 800 2901 North Central Avenue Phoenix, Arizona 85012 Attorneys for Pinal County

Electronically served this 24 th day of February, 2006 to: ALL PARTIES ON ELECTRONIC SERVICE LIST By: //// //// /s/John T. Masterson

4 Case 2:04-cv-00572-MHM-LOA Document 129 Filed 02/24/2006 Page 4 of 5

COPY mailed this same date to: The Honorable Mary H. Murguia United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 525 401 W est Washington Street, SPC 53 Phoenix, AZ 85003-2154 Jay Jeffers P.O. Box 205 Coolidge, Arizona 85228 Pro Per

/s/John T. Masterson

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