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

1 2 3 4 5 6 7 8 9 10 11 C. Miles et. al., 12 Defendants. 13 14 Pending before the Court is Plaintiff's Motion to Reconsider this Court's 15 September 27, 2005 order allowing Plaintiff an opportunity to file a Second Amended 16 Complaint to substitute the true names of the Doe defendants (Doc. # 134). Specifically, 17 Plaintiff challenges the Court's decision to order Plaintiff to submit a new address for 18 Defendant Earl Scalet who has never made an appearance in this action. Attached to 19 Plaintiff's Motion is an Inmate Request to Staff form filled out after this litigation began 20 which shows that Scalet was still employed by the prison and was aware of this pending 21 litigation. 22 The Court attempted to clear up the service of process issues in its previous order. 23 Defendant Scalet never returned a waiver of service sent out by the United States Marshals 24 Service. If no waiver was sent, then the Marshals were to personally serve the defendant. 25 It appears that the Marshals instead sent the complaint by mail, for which they received a 26 green card that was not signed by Scalet. This service was not effective. However, the Court 27 found that because Plaintiff sought to file an amended complaint, Scalet was relieved of the 28
Case 2:03-cv-01819-JAT Document 138 Filed 11/03/2005 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carlos Arthur Powell, Plaintiff, vs.

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No. CV 03-1819-PHX-JAT ORDER

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obligation to answer the original complaint and denied Plaintiff's request for entry of default in the same order granting Plaintiff leave to amend. As for the First Amended Complaint, the Court notes that Stella Ponce, the Doe Defendants and Earl Scalet were served in the same manner: by certified mail to the Department of Homeland Security which was accepted by Jacque Hahn. Ponce contested service as insufficient but the Doe Defendants, apparently not contesting service, filed a motion for summary judgment. Ponce and the Doe Defendants are represented by the same counsel. Based on Plaintiff's submission showing that Scalet was still employed by the Bureau of Prisons after this litigation began, the Court will amend its previous order to the extent that it orders Defense counsel to file the last known address for Earl Scalet under seal. The Court cannot enter default because Scalet has not been properly served. Once the Court receives Scalet's last known address, it will order the United States Marshals to personally serve Scalet the Second Amended Complaint, which Plaintiff still needs to file. The Court declines to reconsider Plaintiff's motion for sanctions against Defendants. Defendants should by now have supplied Plaintiff a copy of his deposition transcript and the Court declines to impose any additional sanctions. Accordingly, IT IS ORDERED that Plaintiff's Motion to Reconsider (Doc. # 134) is GRANTED in part and DENIED in part consistent with the terms of this order; IT IS FURTHER ORDERED that within five (5) days of the entry of this Order, the Federal Bureau of Prisons shall provide, under seal, the United States Marshals Office with the last-known addresses for Defendant Scalet; Upon doing so, the U.S. Marshal is directed to personally serve Defendant Scalet with Plaintiff's Second Amended Complaint within 10 days at the address provided; Alternatively, defense counsel may file a notice with the Court that he will accept or waive service on behalf of Defendant Scalet;

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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 follow;

IT IS FURTHER ORDERED that Plaintiff is given an extension to file his Second Amended Complaint substituting the true names of the Doe Defendants until November 14, 2005; IT IS FURTHER ORDERED that Defendant Ponce and any of the Doe defendants who purportedly joined in the motion for summary judgment (Doc. # 108) and/or who are represented by counsel of record for the defendants, shall provide an address for service within 5 days from the filing of the Second Amended Complaint or inform Plaintiff that they waive service of process or that defense counsel is authorized to accept service on their behalf; IT IS FURTHER ORDERED that based on the response regarding service, Plaintiff shall fill out service packets accordingly and forward them to the Court for service by the United States Marshals within five days from learning the address for service; the United States Marshals shall personally serve defendants with Plaintiff's Second Amended Complaint within 10 days from receiving the packets from Plaintiff; and IT IS FURTHER ORDERED that the discovery deadline shall be extended until January 23, 2006 to allow Plaintiff to conduct discovery in connection with Ponce and the Doe defendants and Scalet if he has been successfully served; IT IS FURTHER ORDERED that the dispositive motion deadline is set for January 30, 2006; Plaintiff shall have until March 1 to respond and any reply is due by March 8; IT IS FURTHER ORDERED that the trial date for this matter, if trial is necessary, is set for August 8, 2006; IT IS FURTHER ORDERED that an order setting final pretrial conference shall

IT IS FURTHER ORDERED that the deadlines in this order supersede the deadlines set forth in this Court's September 27, 2005 order (Doc. # 132);

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IT IS FURTHER ORDERED that no extensions of any of the deadlines set in this order will be granted; DATED this 3rd day of November, 2005.

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