Free Motion to Dismiss Case - 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 DANIEL D. TWIGG, 10 Plaintiff, 11 v. 12 13 14 Defendants. 15 16 Defendants the State of Arizona, Ronolfo Macabuhay, M.D., and Harold Whitney, STATE OF ARIZONA, RONOLFO MACABUCHAY, M.D., AND HAROLD WHITNEY, D.O., DEFENDANTS' MOTION FOR SUMMARY DISMISSAL OF THE COMPLAINT No. CV03-2190-PHX-PGR(MS) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

17 D.O., by and through their undersigned counsel and pursuant to Rule 7.2(i), LRCiv, Rules 18 of Practice of the United States District Court for the District of Arizona ("Local Rules"), 19 move for dismissal of Plaintiff's Complaint for the reason that Plaintiff has failed to 20 comply with this Court's Order by failing to respond to Defendants' Motion for Summary 21 Judgment. 22 This Motion is supported by the accompanying Memorandum of Points and

23 Authorities. 24 25 MEMORANDUM OF POINTS AND AUTHORITIES Daniel Twigg, a pro se inmate in the custody of the Arizona Department of

26 Corrections ("ADC"), alleges medical negligence in the treatment of his hand fractures, as

Case 2:03-cv-02190-PGR-MS

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1 well as a violation of 42 U.S.C. § 1983 for deliberate indifference to his serious medical 2 needs. He sues the State of Arizona and Drs. Ronolfo Macabuhay and Harold Whitney, 3 the ADC practitioners who cared for his hand fractures. 4 Defendants filed their Motion for Summary Judgment on June 30, 2005. By Order

5 dated July 6, 2005, this Court directed that Plaintiff file his Response by August 2, 2005. 6 The Court's Order contained the following warning: 7 8 9 10 11 12 On August 19, 2005, in response to a letter from undersigned counsel informing It is Plaintiff's obligation to timely respond to all motions. The failure of Plaintiff to respond to Defendants' Motion for Summary Judgment may in the discretion of the Court be deemed a consent to the granting of that Motion without further notice, and judgment may be entered dismissing the complaint and action with prejudice pursuant to Local Rule (Civil) 7.2(i). See, Brydges v. Lewis, 18 F. 3d 651 (9th Cir. 1994). (Emphasis in original)

13 the Court that Plaintiff was awaiting assistance from a former inmate to draft his Response 14 to the Motion, the Court again extended Plaintiff's filing deadline--this time to September 15 19, 2005. The Court's Order of August 19, 2005 contained the following express warning 16 to Plaintiff: 17 18 19 20 21 The Court will extend the deadline for Plaintiff to respond to the motion for summary judgment by 30 days. The Court advises Plaintiff that if he seeks an extension of time, he must do so through a motion. Plaintiff should not wait for the deadline to pass or for the Court to issue an order regarding any overdue response to a motion (Emphasis added). To date, Defendants have received neither Plaintiff's Response to the Motion for

22 Summary Judgment, nor any explanation for his failure to comply with the Court's 23 extended filing deadline. Nor have Defendants received a motion seeking a further 24 extension of time. Defendants therefore request that Plaintiff's action be dismissed, 25 pursuant to Local Rule 7.2(i). 26 2
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Local Rule 7.2(i), effective December 1, 2004, provides in relevant part as follows: If a motion does not conform in all substantial respects with the requirements of this Local Rule, or if the opposing party does not serve and file the required answering memoranda...such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily. In Brydges v. Lewis, 18 F. 3d 651 (9th Cir. 1994), the Court of Appeals affirmed

7 the dismissal of an inmate's complaint for failure to respond to the prison officials' 8 motion for summary judgment, citing the fact that the inmate had been warned of the 9 consequences of his failure to respond. Because the district court had expressly warned 10 Brydges that his failure to respond to the motion for summary judgment "shall constitute a 11 consent" on his part to the granting of the defendants' motion, no error was committed in 12 deeming Brydges' failure to respond to be a consent to the motion. Id. at 653. 13 Similarly, Plaintiff was warned not once but twice by this Court about his

14 obligation to file a timely Response or to seek relief by way of a motion. Because the 15 Court has already granted Plaintiff an extension of time to file his Response, and because 16 Plaintiff has failed without explanation to comply with the Court's extended filing 17 deadline, or to move for a further extension of time, it is reasonable to conclude that 18 Plaintiff has consented to Defendants' Motion for Summary Judgment. Therefore, 19 summary dismissal, pursuant to Local Rule 7.2(i), is an appropriate exercise of discretion. 20 21 22 23 24 25 26 3
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RESPECTFULLY SUBMITTED this 3rd day of October, 2005. TERRY GODDARD ATTORNEY GENERAL s/Richard P. Broder Richard P. Broder Assistant Attorney General Attorneys for Defendants

1 COPY of the foregoing hand-delivered this 3rd day of October, 2005 to: 2 UNITED STATES DISTRICT COURT 3 401 W. Washington Phoenix, AZ 85003 4 COPY of the foregoing mailed 5 this 30th day of October, 2005 to: 6 Daniel D. Twigg, #143625 ASPC - LEWIS 7 Bachman Unit P.O. Box 3500 8 Buckeye, AZ 85326 Plaintiff in Pro Per 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4
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IDS03-0445 / G2003-03783 / 926940

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