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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 OF THE DEADLINE TO EXCHANGE MARKED COPIES OF TRIAL EXHIBITS 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 of the deadline for the parties to exchange marked copies of all exhibits to be used at trial and request that the Court permit the exchange via mail 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.

Case 2:04-cv-00019-DGC

Document 106

Filed 03/03/2006

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 February 27, 2006, this Court granted the Defendants' Motion for Enlargement, extending the deadline for the parties to file the Proposed Final Pretrial Order to March 17, 2006. (Dkt. 104.) The Order of February 27, 2006, also orders the parties to meet in person and exchange marked copies of all exhibits to be used at trial no later than 14 days before the submission of the draft of the Proposed Final Pretrial Order, i.e., March 3, 2006. (Id.) The parties are unable to meet that deadline for the following reasons: Plaintiff is an inmate incarcerated in the Arizona Department of Corrections ("ADC") in Tucson, Arizona. Undersigned counsel received the Court's Order on February 28, 2006, and immediately faxed it to Plaintiff's assigned ADC Counselor for immediate delivery to Plaintiff. Under ADC Department Order ("DO") 902, ADC's legal access policy, all copies requested by Plaintiff pertaining to a qualified legal claim will take a minimum of three business days to complete. (See DO 902.05 attached as Exhibit A.) Extra time may be necessary for extensive copying requests. (Id.) Therefore, any request for copies by Plaintiff on February 28th or 29th will not be completed by the Court's deadline. Undersigned counsel is also waiting for certified documents from ADC to be used at trial. Additionally, to visit Plaintiff at the Arizona State Prison ComplexTucson, undersigned counsel must obtain permission and clearance from the ADC, which was impossible to accomplish in such little time. 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.

Case 2:04-cv-00019-DGC

Document 106

2

Filed 03/03/2006

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Therefore, for the reasons set forth above, Defendants respectfully request the Court enlarge the deadline for the parties to exchange marked copies of all exhibits to be used at trial to and including March 17, 2006, and permit the parties to exchange the exhibits through the mail instead of in person. RESPECTFULLY SUBMITTED on this 3rd day of March, 2006. TERRY GODDARD Attorney General

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

Case 2:04-cv-00019-DGC

Document 106

3

Filed 03/03/2006

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ORIGINAL of the foregoing electronically filed this 3rd 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 3rd day of February, 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/ C. Jordan Secretary to Kelley J. Morrissey
IDS04-0395/RM#G2003-04642

949961

Case 2:04-cv-00019-DGC

Document 106

4

Filed 03/03/2006

Page 4 of 4