Free Reply to Response to Motion - District Court of Arizona - Arizona

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Gary A. Fadell ­ 005879

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

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 TO DISMISS PLAINTIFF'S CASE
(Oral Argument Requested) (Court Reporter Requested) (Assigned to the Honorable Morton Sitver: U.S. Magistrate Judge)

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Defendant Lizarraga files his Reply in support of his Motion to Dismiss on all counts of the Plaintiff's Amended Complaint. In his response, Plaintiff is claiming that the statute of limitations should be tolled while he was incarcerated at Pinal County Jail. Plaintiff also claims that this case should not be dismissed because he was denied access to the courts ("Legal advice and Rulebooks"). Dr. Lizarraga is entitled to judgment as a matter of law, because Plaintiff's claims

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under 42 U.S.C. § 1983 are untimely. This Reply is supported by the accompanying Memorandum of Points and Authorities and the entire record of these proceedings. RESPECTFULLY SUBMITTED this 26TH day of January, 2006. FADELL · CHE NE Y · BUR T , P.L .L .C.

By s/Gary A. Fadell Gary A. Fadell 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006 Attorneys for Defendant Lizarraga

MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF'S CLAIM OF TOLLING THE STATUTE OF LIMITATIONS BECAUSE OF INCARCERATION HAS NO MERIT Plaintiff contends that his claim should not be barred because he was in the Pinal County Jail, and the statute of limitations was tolled. Pursuant to A.R.S. §12502(b), amended in 1984, imprisonment or incarceration is no longer a disability that tolls the statute, but only tolls the statute until the person imprisoned knows or should have known of the injury. Zuck v. State, 159 Ariz. 37, 764 P.2d 772 (1988). As detailed by the extensive record, Plaintiff knew of his claim and supposed injury right after the incidents for which this claim was filed. Plaintiff's claim stems from incidents on January 12, 2001 and January 30, 2001. Additionally, Plaintiff filed many motions in this lawsuit, but did not file his amended Complaint against Dr. Lizarraga until more than four years after the alleged incident (June 9, 2005) that led to

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the filing of the original Complaint. Plaintiff also knew of his injuries much sooner than June 9, 2005. That is evidenced by Plaintiff's first complaint that was filed in this matter, while he was still incarcerated at Pinal County Jail, on February 26, 2001. Plaintiff's

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accrual date then must fall right around the date of his first complaint, which was February 26, 2001. This would mean Plaintiff had until February 26, 2003, to amend his Complaint and add Defendant Lizarraga. Plaintiff did not amend his Complaint and is barred from bringing this claim. Plaintiff's claim is even more frivolous considering that he was released from jail on April 4, 2001. Plaintiff was not incarcerated again until July 27, 2005, as Plaintiff acknowledged in his pleadings filed with this Court. In those four years, Plaintiff had more than enough time to amend his Complaint, but chose not to do so. Plaintiff contradicts his own argument that the statute of limitations should be tolled because he was in jail. Plaintiff had a four-year span when he had access to lawyers and written materials. Plaintiff could have amended his Complaint before February 26, 2003.

Plaintiff simply did not do it. Any claim filed after the February 26, 2003 accrual date is outside the twoyear statute of limitations. Plaintiff's claim should be barred under a statute of

limitations defense for the above-mentioned reasons. II. PLAINTIFF'S CLAIM THAT HE WAS DENIED ACCESS TO THE COURTS (LEGAL ADVICE AND RULBOOKS) IS WITHOUT SUPPORT IN THE RECORD Plaintiff contends that he was denied access to his Federal Rulebooks and legal

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advice. What Plaintiff is claiming is that he was denied access to the courts. To state a claim for denial of access to the courts, an inmate must allege that prison officials hindered the prisoner's capability to file a legal claim attacking his conviction or

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challenging the conditions of his confinement. See Lewis v. Casey, 518 U.S. 343, 355, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). Plaintiff's conduct defeats this argument as he filed and continues to file numerous motions in this case. Plaintiff's argument is legally insufficient because denial of access to the courts is not simply being denied rulebooks or legal advice. Under Lewis, the inmate must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. Id., at 618.

Plaintiff has not been hindered in his efforts as he is in the same situation as he was before the alleged denial of access to the courts. Plaintiff is currently in jail but filing an extremely high number of motions. Plaintiff has been filing all of these motions without legal advice. Plaintiff has failed to demonstrate how he was denied access to the courts. III. CONCLUSION Plaintiff waited more than two years after the alleged injury occurred. In fact, Plaintiff waited more than four years to file his amended Complaint. This action is untimely and barred by the statute of limitations. Second, Plaintiff failed to state a legally sufficient claim of denial of access to the courts. Plaintiff is in the same situation as if he had access to the courts, given the number of motions Plaintiff filed and continues to file in this matter. Lastly, what Plaintiff is trying to do by amending his

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Complaint and adding Dr. Lizarraga to the original Complaint is to circumvent the two year statute of limitations. If Plaintiff brought suit separately in 2005 against Dr.

Lizarraga, the claim on its face would be untimely and barred by the statute of
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limitations.

Plaintiff is simply trying to backdoor an untimely claim by filing an

amended complaint. He should be barred from doing so. For the foregoing reasons, Defendant Lizarraga requests that the Court dismiss Plaintiff's claims with prejudice. DATED this 26th day of January, 2006. FADELL · CHE NE Y · BUR T , P.L .L .C.

By s/Gary A. Fadell Gary A. Fadell 1601 North Seventh Street, Suite 400 Phoenix, Arizona 85006 Attorneys for Defendant Lizarraga

Electronically served this 26th day of 17 January, 2006, to:
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ALL PARTIES ON SERVICE LIST

ELECTRONIC

COPY of the foregoing mailed on this 26TH day of January, 2006 to:

Honorable Morton Sitver U.S. Magistrate Judge 24 U.S. District Court Sandra Day O'Connor Courthouse 25 Suite 514 26 401 West Washington Street Phoenix, Arizona 85003
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Jay Jeffers P.O. Box 2610 2 Florence, Arizona 85232 3 Pro Per
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By s/Liz Sheaffer

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