Free Response - District Court of Arizona - Arizona

Michael D. House Chandler City Attorney Michael E. McNeff, SBN #3083 Assistant City Attorney P.O. Box 4008, MS 602 Chandler, Arizona 85244-4008 (480) 782-4640 / (480) 782-4652 Fax e-mail: [email protected] Attorneys for the Defendant Cox

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

KERRY ALLYNN CHASE

) ) ) Plaintiff, ) ) v. ) ) BRYAN COX, et al., ) ) Defendant. ) ___________________________________________)

NO.CV-04-0056-PHX-NVW(MS) DEFENDANT COX'S RESPONSE TO MOTION FOR RECONSIDERATION

COMES NOW Defendant Bryan Cox, by and through his undersigned attorneys and hereby respectfully request the Court to deny Plaintiff's Motion for Reconsideration for the factual and legal reasons set forth in the following Memorandum of Points and Authorities. Dated this 7th day of September, 2005. Michael D. House Chandler City Attorney s/_____________ Michael E. McNeff, SBN 3083 Assistant City Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT Defendant Cox joins the Notice to the Court filed by Defendant Sesma dated August 24, 2005. Given that both Defendants followed the mailing procedure that has been sufficient when the Defendants were aware of Plaintiff's location, without further proof from the Defendant that the prison mail system failed, other than his unsworn statement, his motion should be denied for lack of evidence. Defendants Cox and Sesma also refer to the Court's order of May 24, 2004, the Court warned the Plaintiff that failure to immediately inform the Court and Defendants' attorneys of any change of address could result in dismissal of the Plaintiff's case. The Defendant has never promptly informed the Court or the Defendant's attorneys of his changes of address. His most recent move is no exception. The Defendant was moved from the Rynning Unit in Florence, Arizona to the Lewis Prison in Buckeye, Arizona on July 12, 2005. He informed the Court and Defendants' attorneys of this move on August 14, 2005. Exhibit 1. Without evidence of a failure of the prison mail system from the Plaintiff, the Defendants submit the Court should consider any failure of mail to reach the Plaintiff would be due to his own negligence. Lastly, the Defendants in their respective Motions for Summary Judgment have presented irrefutable evidence to the Court that the conduct alleged in the complaint did not occur. The evidence provided by the Defendants is the only evidence available concerning this case. The Plaintiff has not advised the Defendants' attorneys of any other obtainable relevant evidence. Rule 59(e) of the Federal Rules of Civil Procedure governs Motions for Reconsideration. In Sissoko v. Rocha, 412 F.3d 1021, 1028 the Ninth Circuit stated "Rule 59(e) amendments are
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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." The Plaintiff's submission to the Court does not meet the requirements of Rule 59(e) for the reasons stated above. CONCLUSION The Defendants respectfully request the Court to deny the Plaintiff's Motion for Reconsideration for the reasons that: 1. The Plaintiff has failed to immediately inform the Court and Defendants'

attorneys of his changes in address as ordered by the Court on May 24, 2004. 2. The Plaintiff has no other evidence to submit to the Court that can refute

the evidence provided by the Defendants in their Motions for Summary Judgment. 3. The Plaintiffs submission to the Court does not meet the requirements of

Rule 59(e) of the Federal Rules of Civil Procedure. RESPECTFULLY SUBMITTED this 7th day of September, 2005

Michael D. House Chandler City Attorney

_________s/_____________ Michael E. McNeff Assistant City Attorney P.O. Box 4008, MS 602 Chandler, Arizona 85244-4008

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Certificate of Service

I hereby certify that on September 7, 2005, I electronically transmitted the attached 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: Honorable Neil V. Wake United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003-2158 Honorable Morton Stiver U.S. Magistrate Judge United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003-2120 Joseph I. Vigil, SBN 018677 Maricopa County Attorney Division of County Counsel Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206

I also hereby certify that on September 7, 2005, I served the attached document by U.S. Mail on the following individual who is not a registered participant of the CM/ECF System: Kerry Allynn Chase #166870 ASPC- Lewis P.O. Box 3300 Buckeye, Arizona 85326

_____________s/________

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