Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

SRM

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 27 28 Timothy Lee Ward, Plaintiff -vsKarr, et al., Defendant(s) CV-03-2159-PHX-ROS (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion for Reconsideration, filed May 3, 2007 (#70). Plaintiff seeks reconsideration of the Court's Order filed April 16, 2007 (#68), in which the Court denied Plaintiff's motions seeking to deal with an apparently incorrect spelling of Defendant Karr's name. As part of that Order, the Court denied a motion to amend, noting that Plaintiff was not entitled to an amendment of right, having once before amended, and that the proper form had not been followed in making the motion to amend. Plaintiff's current motion asks the Court to reconsider that Order on the basis that Plaintiff has now resubmitted his motion to amend. Also under consideration is Plaintiff's Motion to Amend, filed May 3, 2007 (#71) in which Plaintiff seeks leave to file his lodged, proposed, Second Amended Complaint, lodged May 3, 2007 (#72). Original Complaint - Plaintiff's First Amended Complaint, filed December 23, 2003 (#8) named as Defendants "Sgt. Karr", the SSU Supervisor at ASPC-Eyman Rinning Unit; (2) Deputy Warden Stewart, the deputy warden at ASPC-Eyman Rinning Unit; (3) COIII Bennett, the property officer at ASPC-Eyman SMU I; and (4) SSU Officer Phelps, an SSU Officer at ASPC-Eyman SMU I. In Count I, Plaintiff alleged that Defendant Sgt. Karr placed Plaintiff in a lockdown unit because of Plaintiff's sexual preference. In Count II, Plaintiff alleged that Defendant Deputy Warden Stewart discriminated against Plaintiff in disciplinary
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treatment due to Plaintiff's sexual preference. In Count III, Plaintiff alleged that Defendant Phelps removed legal documents from Plaintiff's cell. In Count IV, Plaintiff alleged that he was denied access to the courts when Defendant Bennett failed to deliver Plaintiff's legal boxes to him in time to meet a court filing deadline. In the Court's screening Order filed April 15, 2004 (#10), only Defendant Bennett was ordered to answer, and the remaining defendants were dismissed. Defendant Bennett ultimately filed a motion for summary judgment (#39) which was granted (#45). Plaintiff appealed, and the Ninth Circuit affirmed the grant of summary judgment, but reversed and remanded for reconsideration whether Plaintiff had made out claims for a denial of due process in Plaintiff's confinement to administrative segregation, and for retaliation. Accordingly, this Court ordered service on Defendants Karr and Stewart, and an answer to Counts I and II. (Order 2/5/07, #61.) As noted above, service on Defendant Karr has been returned unexecuted, and Defendant Stewart has now filed a Motion to Dismiss (#73) on the basis of a failure to exhaust administrative remedies. Plaintiff's lodged Second Amended Complaint replaces Defendant "Karr" with Defendant "SSU Sergeant Carr." It retains Defendant Stewart, and eliminates the now dismissed Defendants Bennett and Phelps. Similarly, Plaintiff omits the prior Counts III and IV, which were previously disposed of by the Court. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend should be freely granted in the interest of justice. Here, Plaintiff simply seeks to correct the spelling of Defendant Carr's name, and otherwise acknowledge those claims which have already been resolved against Plaintiff, by omitting them from the complaint. Leave to amend will be granted. Moreover, in light of the age of this case, and the limitations applicable to Plaintiff, the Court will direct Defendant Stewart to provide the last known address for Defendant Carr. Pursuant to Fed.R.Civ.P. 4(m), the Court finds that Plaintiff has been diligent in pursuing service in this matter in light of the disabilities stemming from his incarceration, that an extension of time to complete service on Defendant Carr would serve the interests of justice, and that good cause exists for such extension.
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To the extent that Plaintiff's Motion for Reconsideration is not rendered moot by this ruling, the Court finds nothing to indicate that the prior ruling was inappropriate or improper. Accordingly, that motion will be denied. IT IS THEREFORE ORDERED that Plaintiff's Motion for Reconsideration, filed May 3, 2007 (#70) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Amend, filed May 3, 2007 (#71) is GRANTED IT IS FURTHER ORDERED that Plaintiff's Second Amended Complaint lodged on May 3, 2007 (#72), shall be FILED. IT IS FURTHER ORDERED that within ten days of the filing of this Order, Plaintiff shall file with this Court a Certificate of Service pursuant to Rule 5(c), Federal Rules of Civil Procedure, evidencing service of the Second Amended Complaint on Defendant Stewart, who has already appeared herein. IT IS FURTHER ORDERED that Defendant Stewart shall file his answer or otherwise respond to Plaintiff's Second Amended Complaint within twenty (20) days of the filing of this Order. IT IS FURTHER ORDERED that within twenty days of the filing of this Order, counsel for Defendant Stewart shall provide Plaintiff with the work locations for Defendant Carr if still employed with the Arizona Department of Corrections, or if no longer so employed, to provide his last known home address to the Clerk of the Court (under seal) for the preparation of service packets. IT IS FURTHER ORDERED that Plaintiff shall have ninety days from the filing of this Order to complete service on Defendant Carr. IT IS FURTHER ORDERED that service on Defendant Carr shall proceed as follows: (1) The Clerk of the Court shall send Plaintiff a service packet including both summons and request for waiver forms for said Defendant. (2) Plaintiff shall complete and return the service packet to the Clerk of the Court
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within 30 days of the date of the filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order. (3) The United States Marshal shall retain the Summons, a copy of the Second Amended Complaint, and a copy of this Order for future use. (4) The United States Marshal shall notify said Defendant of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to said Defendant shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that were returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by any such Defendant within thirty days from the date the request for waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the Summons, Second Amended Complaint and this Order upon such Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure. (b) Within ten days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the Summons, Second Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (5) Defendants who agree to waive service of the Summons and Second Amended Complaint shall return signed waiver forms to the United State Marshal, and not to Plaintiff. (6) Said Defendant shall answer the Second Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a)
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of the Federal Rules of Civil Procedure. (7) Any answer or responsive pleading shall state the specific Defendant(s) by name on whose behalf it is filed. The Court may strike any answer, responsive pleading, or other motion or paper that does not identify the specific Defendant(s) by name on whose behalf it is filed. IT IS FURTHER ORDERED that no response or reply to the Motion to Dismiss, filed May 14, 2007 (#73) shall be filed, pending further order of the Court.

DATED: May 22, 2007
S:\Drafts\OutBox\03-2159-071o Order 07 05 09 re MReconsider MAmend.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

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