Free Response to Motion - District Court of Arizona - Arizona

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Terry Goddard Attorney General Michele L. Forney, Bar No. 019775 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants

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Case 2:03-cv-02159-ROS-JRI Document 146 Filed 05/05/2008 Page 1 of 3

Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. Defendants Carr and Stewart respond to Plaintiff's Motion to Refuse Application of Judgment under Rule 56(f) and Motion to Stay [Dkt. 140]. In this Motion, Plaintiff requests a stay of his deadline to respond to Defendants' Motion for Summary Judgment, which was filed on April 15, 2008. Rule 56(f), Fed. R. Civ. P., provides: If a party opposing the motion [for summary judgment] shows by affidavit that, for specific reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. (Emphasis added.) Plaintiff's motion for 56(f) relief should be denied because he failed to submit an affidavit demonstrating what discovery is needed and why it is necessary to justify his response to the pending motion for summary judgment. The fact that Defendants filed their Motion for Summary Judgment before the Court-ordered deadline DEFENDANTS' RESPONSE TO MOTION TO REFUSE APPLICATION OF JUDGMENT UNDER RULE 56(F)/MOTION TO STAY [DKT. 140]

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does not excuse Plaintiff from responding in a timely manner or from producing an affidavit explaining why additional time and discovery is needed. In his Motion, Plaintiff explains that he needs the responses to the Requests for Production that he lodged after the Court granted his Motion for Clarification on March 26, 2008. Those responses are due today and are being served on Plaintiff this same date. If Plaintiff needs additional discovery, it is not apparent from his Motion. This Court has already ruled that Plaintiff will have 30 days after the ruling on the Motion to Seal Exhibits [Dkt. 138], which is still pending. (See Order dated April 29, 2008, Dkt. 144.) Since the Motion to Seal Exhibits has not yet been ruled on, Plaintiff's deadline for responding to the Motion for Summary Judgment is not yet set. Since Defendants have responded to the outstanding Request for Production this same date, Plaintiff's Motion is moot and should be denied. RESPECTFULLY SUBMITTED this 5th day of April, 2008. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants

Original e-filed this 5th day of April, 2008, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 2
Document 146 Filed 05/05/2008 Page 2 of 3

Case 2:03-cv-02159-ROS-JRI

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Copy mailed the same date to: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232

s/Colleen S. Jordan Secretary to: Michele L. Forney IDS04-0306/RSK:G04-20640 #199465

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Case 2:03-cv-02159-ROS-JRI