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 EXCHANGE DRAFTS OF THE PROPOSED FINAL PRETRIAL ORDER AND TO LODGE PROPOSED FINAL PRETRIAL ORDER UNDER FED. R. CIV. P. RULE 6(b) (First Request) No. CV 04-19-PHX-DGC (LOA)

Defendants, Macabuhay, Pratt, and Sloan, move this Court for an enlargement for the parties to exchange drafts of the Proposed Final Pretrial Order and to lodge the Proposed Final Pretrial Order 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.

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87.) The Court denied the Defendants' Motion for Summary Judgment regarding the 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 are 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.) On December 19, 2005, Plaintiff filed a Motion for Reconsideration of the Court's Order of December 1, 2005. (Dkt. 89.) On December 22, 2005, the Defendants filed a Motion for Reconsideration of the Court's Order of December 1, 2005. (Dkt. 93.) In their Motion for Reconsideration, the Defendants state that it is unclear from the Court's Order whether Defendants Sloan and Pratt remain in this matter. (Id.) 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. Because both parties have sought reconsideration, it is unclear at this time what issues will proceed to trial, if any. Additionally, it is unclear which Defendants remain in this matter. 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 exchange drafts of the Proposed Final Pretrial Order, be enlarged for forty-five days from the date this Court issues it Order regarding the parties' Motions for Reconsideration. Undersigned counsel is asking for a forty-five day enlargement because she will be engaged in expert depositions in January 2006 and is scheduled to

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be in trial in Byerly v. Deputy Warden, et al., United States District Court for the District of Arizona, No. CV 04-0323-PHX-FJM (GEE) on February 14, 2006. RESPECTFULLY SUBMITTED on this day of December, 2005. 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 22nd day of December, 2005, 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 22nd day of December, 2005, 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

940052

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