Free Response in Opposition 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 Albert DeLeon, No. CV 04-0446 PHX PGR (MS) Plaintiff, v. Dora Schriro, et al., Defendants. Defendants,1 by and through undersigned counsel, hereby oppose Plaintiff's Motion to Re-Open Discovery (Dkt 230). Plaintiff brought his action in March of 2004. (Dkt. 1.) He twice amended his complaint. (Dkt 77, 78.) Prior to and following amendment of his Complaint, the matter proceeded through discovery. In December of 2005, Defendants filed their Motion for Summary Judgment. (Dkt. 187.) After being provided Rand notice (Dkt. 190), Plaintiff responded (Dkt. 200). And Defendants replied. (Dkt. 204.) In September of 2006, this Court granted Defendant's Motion for Summary Judgment in part, Dora Schriro, Ronolfo Macabuhay, Ruben Montano, Donald Sloan, Frederick Ramon, Andres Avalos, Adrian Paredez, Michael Reyna and Dr. Vinluan. All Defendants except Defendants Ramon, Avalos, Paredez, and Reyna have been granted summary judgment in this matter. Named-Defendant Jones has apparently not been served in this matter.
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DEFENDANTS' OPPOSITION TO MOTION TO RE-OPEN DISCOVERY

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and denied it in part, leaving only the claim of retaliation against Defendants Reyna, Ramon, Paredes, and Avalos to proceed to trial. (Dkt. 218.) In his motion, Plaintiff now claims that his response to Defendants' Motion for Summary Judgment was insufficient because his ability to conduct discovery was hampered by his incarceration, his lack of formal education, and his continuing medical condition. However, a review of this Court's docket demonstrates that Plaintiff was neither hampered nor precluded from engaging in discovery. In fact, Plaintiff propounded discovery throughout the litigation of this matter, irrespective of his custody status, education, or medical condition. (See Clerk's Docket generally.) Plaintiff's requests to re-open discovery is merely an attempt to extend the proceedings because he is unsatisfied with the outcome of his case to date. He apparently seeks another opportunity to revive those claims in which summary judgment has been granted and to possibly add a new defendant to this action, i.e., the Arizona Department of Corrections or State of Arizona. A review of Plaintiff's portions of the Proposed Joint Pretrial Order (Dkt. 231) and his current motion, imply that Plaintiff believes the State of Arizona, acting as an entity, is responsible for his alleged injuries, and that he should be able to show how ADC policy and procedure, resulted in his current medical condition. However, because neither the State of Arizona nor its non-jural entity, ADC, can be the subject of a section 1983 claim, Plaintiff's motion should be denied. Additionally, during the course of these proceedings, Plaintiff twice amended his complaint, raising § 1983 claims against individual defendants for retaliation and deliberate indifference to his health and safety. To permit discovery to reopen, and allow yet another
amendment to his complaint, would do nothing but cause undue delay. Defendants, many of whom are no longer employed by the Arizona Department of Corrections, are entitled to have this litigation end within a reasonable time frame. More than four years has passed since Plaintiff was transferred from the East Unit to CB-3 on October 17, 2002, memories have and

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will continue to fade, making defending this action difficult at best. To reopen discovery at this late juncture would merely prejudice Defendants who desire an end to this matter. Finally, although Defendants do not deny that Plaintiff suffered a heart attack some 6 to 9 hours after he was moved to CB-3 at 9 a.m. on the morning of October 17, 2002, and that he subsequently underwent bypass surgery, Plaintiff's only contact with Defendants Reyna, Avalos, Paredes, and Ramon took place during his move. Plaintiff has not specified the nature of the discovery that was allegedly lacking regarding the alleged actions of these defendants. His desire to reopen discovery at this late juncture should not be permitted.

III.

CONCLUSION For the above-stated reasons, Defendants respectfully request that this court deny

Plaintiff's Motion to Re-Open Discovery. RESPECTFULLY SUBMITTED this 4th day of December, 2006. Terry Goddard Attorney General

s/ Susanna C. Pineda Susanna C. Pineda Assistant Attorney General Attorneys for Defendants

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Original e-filed this 4th day of December, 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-00446-JAT Document 232 Filed 12/04/2006 Page 4 of 4

Stephen G. Montoya, Bar No. 011791 Montoya Jimenez PA 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012-2490 Phone: 602-256-6718 Fax: 602-256-6667 [email protected] s/ Colleen S. Jordan Legal Secretary to: Susanna C. Pineda IDS04-0271/RSK:G03-03830 #989817