Free Response to Motion - District Court of Arizona - Arizona

1 TERRY GODDARD ATTORNEY GENERAL 2 RICHARD P. BRODER (020782) 3 Assistant Attorney General 177 North Church Avenue, Suite 1105 4 Tucson, Arizona 85701-1114 (520) 388-7131 · Fax (520) 628-6050 5 [email protected] 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 Defendants, Ryan, Taylor, Sloan, Kanter, and Lockhart, by and through v. CHARLES RYAN, JIM TAYLOR, M.D., DON SLOAN, M.D., BRUCE KANTER, M.D., JOHN LOCKHART, M.D., Defendants. DOYLE BURNS, Plaintiff, RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV03-2273 PHX-JWS (MS)

18 undersigned counsel, hereby oppose Plaintiff's Motion for Leave to File an Amended 19 Complaint. 20 Although the precise bases for Plaintiff's Motion are somewhat unclear, it would

21 appear that he wishes to amend his First Amended Complaint, as follows: (1) by adding 22 "notice of claim, medical neglect, and medical malpractice" allegations, and (2) by 23 reflecting "the identity and actions of all defendants named in the above-entitled action." 24 With respect to the first basis for the amendment, this Court has already ruled

25 against Plaintiff on those very issues. In its Order dated December 28, 2004, the Court 26 dismissed Plaintiff's state law claim of medical negligence, citing Plaintiff's failure to

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1 comply with Arizona's notice of claim requirement. 2 Regarding the second basis for the amendment, there is now pending before the

3 Court Defendants' fully briefed Motion for Summary Judgment. That Motion 4 conclusively establishes the absence of a genuine issue of material fact. It also

5 demonstrates that Plaintiff's original Complaint and First Amended Complaint are based 6 on serious factual inaccuracies--the product of his poor memory, misunderstanding of his 7 medical condition, and confusion about the treatment rendered by Defendants. 8 Confronted with the truth of that assessment, it now appears that Plaintiff seeks to correct 9 those inaccurate allegations. 10 This litigation is well beyond the pleading stage. In light of Plaintiff's deposition

11 testimony and the affidavit of Dr. Greenberg submitted by Defendants in support of their 12 Motion, the issue is whether Plaintiff can support his claim with facts showing that his 13 case warrants a trial. Mere allegations in a pleading no longer suffice. Even if Plaintiff 14 corrects the inaccuracies contained in his pleadings, he still cannot show as a matter of 15 fact that Defendants were deliberately indifferent, or that they conspired to deprive him of 16 his constitutional rights. In light of the evidence submitted in support of Defendants' 17 Motion for Summary Judgment, an amendment at this time would be futile because the 18 complaint would still fail to state a claim upon which relief can be granted. See Rose v. 19 Hartford Underwriters Insurance Co., 203 F.3d 417, 420 (6th Cir. 2000). Futility of 20 amendment, by itself, can be ground for denying leave to amend a complaint. United 21 States ex. rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001). 22 Based on the foregoing, Plaintiff's Motion for Leave to File an Amended

23 Complaint should be denied. 24 . . . 25 . . . 26 . . . 2

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RESPECTFULLY SUBMITTED this 5th day of October, 2005. TERRY GODDARD ATTORNEY GENERAL

s/Richard P. Broder RICHARD P. BRODER Assistant Attorney General Attorneys for Defendants

7 COPY of the foregoing mailed this 5th day of October, 2005, to: 8 Doyle Burns, #85830 9 ASP-Kingman P.O. Box 6639 10 Kingman, AZ 86402 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
IDS04-0034 / G03-04406 / 927397

/jk______________________

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