Free Motion for Extension of Time - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA DANNY MILLER, Plaintiff, v. DONALD SLOAN, et al., Defendants. DEFENDANTS' MOTION FOR ENLARGEMENT TO LODGE PROPOSED FINAL PRETRIAL ORDER AND FILE MOTIONS IN LIMINE UNDER FED. R. CIV. P. RULE 6(b) (Second Request) No. CV 04-19-PHX-DGC (LOA)

Defendants move this Court for a second enlargement to lodge the proposed final pretrial order and to file motions in limine for the following reasons: Plaintiff filed his Amended Complaint on April 8, 2005, alleging that Defendants were deliberately indifferent to his serious medical needs by: (1) refusing his request for a "no spice" diet to help relieve the symptoms of Irritable Bowel Syndrome; and (2) that Defendants failed to renew his Metamucil and prescription for Bentyl (Dicyclomine) because they were "too expensive." (Dkt. 50.) On December 1, 2005, this Court entered an Order granting the Defendants' Motion for Summary Judgment with respect to Plaintiff's diet issue and the issuance of Metamucil. (Dkt. 87.) The Court denied the Defendants' Motion for Summary Judgment regarding the

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prescription for Bentyl stating that "whether Plaintiff was denied a Bentyl prescription due to its cost is a factual issue that must be resolved by a jury." (Dkt. 87 at 4.) On December 1, 2005, this Court also issued its Order Setting Final Pretrial Conference. (Dkt. 88.) Under this Order, the parties were to exchange drafts of the Proposed Final Pretrial Order no later than 14 days before the submission deadline of January 6, 2003, i.e., December 23, 2005. (Id.) Both parties filed motions for reconsideration, which the Court denied on January 6, 2006. (Dkt. 90, 93, 96.) In its Order of January 6, 2006, the Court enlarged the time for the parties to lodge the proposed final pretrial order and file a joint statement of the case and proposed voir dire questions, jury instructions and forms of verdict by February 17, 2006. (Dkt. 96.) The court also ordered all motions in limine to be filed by February 17, 2006. (Id.) Plaintiff provided undersigned counsel with his draft of the proposed final pretrial order. Plaintiff's draft was not in accordance with the Judge's proposed pretrial order format. Undersigned counsel attempted to incorporate Plaintiff's draft into the Judge's format and mailed the revised draft to Plaintiff. Due to its size and new postal regulations, the revised draft was returned, undelivered, to undersigned counsel's office one week after it had been mailed. The revised draft was re-mailed to Plaintiff, but was only received by Plaintiff on Wednesday, February 15, 2006. Plaintiff has not had time to review the revised draft and make the necessary corrections required to conform with the Judge's pretrial order format. Additionally, undersigned counsel is experiencing a delay in receiving certified copies of trial exhibits from the Arizona Department of Corrections to be exchanged with Plaintiff. Finally, Plaintiff has advised undersigned counsel that he would like to submit a settlement offer in this matter.

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The parties held a telephonic conference on Wednesday, February 15, 2006, at which time, based on the aforementioned circumstances, Plaintiff requested and agreed to an enlargement of the existing pretrial deadlines. Fed. R. Civ. P. Rule 6(b) provides that this court may exercise its discretion to enlarge litigation deadlines. Defendants submit that the circumstances set forth above constitute sufficient cause for this Court to exercise its discretion to grant the requested enlargement. Therefore, for the reasons set forth above, Defendants respectfully request that the deadline for the parties to lodge the Proposed Final Pretrial Order and to file Motions in Limine be enlarged for thirty days. RESPECTFULLY SUBMITTED on this 16th day of February, 2006. TERRY GODDARD Attorney General

s/ Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

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ORIGINAL of the foregoing electronically filed this 16th day of February, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 16th day of February, 2006, to: _ Danny L. Miller, # 109729 Arizona State Prison Complex ­ Tucson Santa Rita Unit ­ 3-D-17 P.O. Box 24406 10012 South Wilmot Road Tucson, AZ 85734-4406 Plaintiff Pro Per s/ A. Palumbo Secretary to Kelley J. Morrissey
IDS04-0395/RM#G2003-04642

947857

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