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

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Terry Goddard Attorney General Susanna C. Pineda, Bar No. 011293 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Eddie Hatch, No. CV 04-0541 PHX JWS (MS) Plaintiff, v. Terry Stewart, et al., Defendants. Defendants,1 by and through undersigned counsel, hereby reply to Plaintiff's Response to their Motion for Summary Judgment (Dkt. 59) and respectfully request that this Court grant them summary judgment. Plaintiff has failed to present evidence to counter that presented by Defendants in their Motion for Summary Judgment that would raise a question of material fact. Plaintiff's response merely reiterates the allegations contained in his Complaint and cites to documents that fail to demonstrate any retaliation or deliberate indifference on the part of the named defendants. (Id.) Mere allegation and
speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby,

DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Terry Stewart, Thomas Lutz, Jim Taylor, Ronolfo Macabuhay, Ronald Lawrence, Harold E. Whitney, Bruce E. Canter, Jimmy Zapien, Vickie Hunt, Faith Lee, Kelly Whiting, and A. Putnam.
Document 60 Filed 03/14/2006 Page 1 of 3

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Case 2:04-cv-00541-JWS-LOA

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Inc., 477 U.S. 242, 249-50 (1986). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper if the nonmoving party fails to make a showing

sufficient to establish the existence of an essential element of his case on which he will bear the burden of proof at trial. Id. Pages one, seven and eight of the exhibits attached to Plaintiff's Affidavit support Defendants' statements that Plaintiff has only exhausted the claims set forth in Count I of his Complaint against Dr. Macabuhay, Dr. Whitney, Dr. Kanter, and Stewart, Lutz, and Taylor. (Dkt. 59, Attachment 1 Exhibits at 1, 7-8; Dkt. 51 at 8). Plaintiff's Affidavit in support of his response also alleges that Plaintiff suffered disciplinary action, that his wheelchair was taken from him, and that he had medical special needs orders ("SNOs") that Defendants refused to follow. (Id., Attachment 1 at ¶¶ 9-11). However, ADC has no record that Plaintiff suffered the alleged discipline, and Plaintiff has provided no evidence to support this claim. (Id., Attachment 1 Exhibits). Likewise, Plaintiff has provided no evidence supporting his

allegations that Defendants Lee, Lawrence, Putnam and Whiting all knew he had returned from back surgery and that he had a SNO for a bottom bunk on the ground floor. (Id.).

Because Plaintiff has failed to show that any issues of material fact exist, and the evidence presented in Defendants' Motion for Summary Judgment supports such a conclusion, Defendants are entitled to summary judgment. For these reasons, and those stated in their Motion for Summary Judgment, Defendants respectfully request that this Court grant their motion. RESPECTFULLY SUBMITTED this 14th day of March, 2006. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants 2
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Original e-filed this 14th day of March, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to:

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Case 2:04-cv-00541-JWS-LOA Document 60 Filed 03/14/2006 Page 3 of 3

Eddie Hatch, #47884008 USP - Atwater P.O. Box 019000 #1 Federal Way Atwater, CA 95301 s/ Colleen S. Jordan Secretary to: Susanna C. Pineda IDS04-0505/G#02-10038 #951450