Free Order on Motion to Dismiss Case - 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 are the following motions: Motion to Dismiss by 15 Defendant Ponce (Doc. # 68); Plaintiff's Motion for Sanctions against Both Counsel and 16 Defendant (Doc. # 74); Plaintiff's Motion for Entry of Default as to Scalet and Ponce (Doc. 17 # 80); Plaintiff's Appeal from Magistrate's Order (Doc. # 86); Plaintiff's Motion for Default 18 as to Scalet (Doc. # 97); Motion for Summary Judgment by Defendants Ponce, Miles, John 19 Doe and Robert Doe (Doc. # 108); Plaintiff's Motion to Quash/Strike Defendants' Motion 20 for Summary Judgment (Doc. # 111); Plaintiff's Motion for Court's Clarification and Action 21 on Pending Motions (Doc. # 121); Plaintiff's Motion for Ruling and for Sanctions against 22 Defendants (Doc. # 130). 23 Plaintiff, a special housing unit inmate, alleges that certain officers leaked 24 information to Jose Garcia-Ibarra that Plaintiff had "snitched" on him. Garcia-Ibarra is 25 allegedly a member of a gang and Plaintiff claims that Garcia-Ibarra threatened him after 26 being told that Plaintiff had snitched. In his First Amended Complaint, Plaintiff alleges that 27 an unidentified officer escorted him into an immigration court room and left him alone with 28
Case 2:03-cv-01819-JAT Document 132 Filed 09/27/2005 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carlos Arthur Powell, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) )

No. CV 03-1819-PHX-JAT ORDER

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Garcia-Ibarra and seven other gang members. Plaintiff claims the escorting officer and the security desk officer whom Plaintiff was escorted past were indifferent to his safety needs because not only had Garcia-Ibarra threatened him, but it is against prison policy to allow a special housing unit inmate to come into contact with general population inmates. Plaintiff claims that ending up in court with Garcia-Ibarra is "more than coincidental" and that "the officer and the security desk staff simply vanished exactly as I'm placed in with Jose-GarciaIbarra and (7) other Pisas from population, which are prohibited from being near a SHU inmate." THE DOE DEFENDANTS Plaintiff filed an amended complaint naming John and Robert Doe as the officers that allegedly allowed Plaintiff to be left in the courtroom with Garcia-Ibarra unprotected. Plaintiff repeatedly, yet unsuccessfully, attempted to discover the names of the Doe officers. Finally, on October 19, 2004, this Court entered an order giving Plaintiff just under three months to conduct additional discovery in connection with the Doe defendants. Defendants did not disclose the identity of the Doe defendants until January 10, 2005, after the extended discovery deadline had expired. So although Plaintiff now knows the names of the Doe defendants, he has not been able to conduct any discovery regarding their knowledge of the events that transpired. However, these same Doe defendants have moved for summary judgment and submitted an affidavit in one of their true names stating that Plaintiff was not left alone on the day in question. Officer Talamantes states in his affidavit that he escorted Plaintiff from the protective custody unit to the courtroom on the dates identified in Plaintiff's complaint. Officer Talamantes also states that Officer Cason took custody of Plaintiff for the hearing and that Officer Cason remained in the courtroom for the entire hearing. Defendants would presumably have this Court rule on Plaintiff's motion for summary judgment based on the information found in this affidavit when it is undisputed that Plaintiff had no opportunity to obtain discovery from any of the Doe defendants.

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Plaintiff requested leave from the Court to substitute Officers Talamantes, Caldwell and Valeuzuck for the Doe defendants. This request was denied by the magistrate judge without prejudice for Plaintiff's failure to file a motion for leave to amend and failure to lodge an amended complaint (Doc. # 107). Defendants then filed the pending motion for summary judgment on February 10, 2005. Plaintiff has filed several motions over the past several months requesting that the Court deny and or quash the pending motion for summary judgment because of his lack of opportunity to conduct discovery as to the Doe defendants. The Court finds that Plaintiff's "Motion for Leave to Substitute and/or Correct Defendants Does" (Doc. # 104) was a motion for leave to amend his complaint, even though not specifically captioned as such. See Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1445, n.2 (9th Cir. 1990)(reversing district court and finding that request for leave to amend should have been granted even though request appeared in opposition to motion for summary judgment and was not formally tendered.) While it is true that Plaintiff did not follow correct procedure by failing to lodge a proposed amended complaint, the Court finds that leave to amend should have been granted. The Court had previously granted Plaintiff leave to amend his complaint to name the Doe defendants and extended discovery so that Plaintiff could learn their names. These efforts would be for naught if Plaintiff was then unable to proceed against the Doe defendants after learning their names. The Ninth Circuit has stated that "the rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits." Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984). The Court finds that Plaintiff should have been granted leave to amend his complaint to substitute the true names for the Doe defendants. The Court orders Plaintiff to file a Second Amended Complaint within 10 days from the date of this order. The Court further orders that any of the Doe defendants who purportedly joined in the pending motion for summary judgment and/or are represented by counsel of record for the defendants, 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 -3Case 2:03-cv-01819-JAT Document 132 Filed 09/27/2005 Page 3 of 8

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counsel is authorized to accept service on their behalf. Based on the Doe defendants' 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. Finally, the Court orders that the discovery deadline shall be extended until December 15, 2005 to allow Plaintiff to conduct discovery in connection with the named Doe defendants. DEFENDANT STELLA PONCE Defendant Ponce has filed both a motion to dismiss and joined in the motion for summary judgment. The motion to dismiss is based on insufficient service of process. Plaintiff is proceeding in forma pauperis and the United States Marshals Service executed service on Plaintiff's behalf. Plaintiff also attempted to get discovery from Ponce. The Magistrate Judge denied Plaintiff's requests, stating that Ponce was not a party to the litigation. (Doc. # 83). This appears to be incorrect as Ponce was added as a defendant in Plaintiff's First Amended Complaint. discovery. As to Ponce's claim that she has not been properly served, the Court finds that Ponce has participated in this matter from the beginning and is represented by counsel. Plaintiff, proceeding in forma pauperis, relied on the United States Marshals Service for service. The docket in this matter shows that the Marshals sent the First Amended Complaint to Ponce at an address for the Department of Homeland Security and the complaint was accepted by Jacque Hahn. Ponce apparently claims that Hahn is not her agent and therefore not authorized to accept service on her behalf. The Court finds dismissal on this basis Therefore, Ponce should have participated in

inappropriate, however, and orders that Ponce provide an address for service within 5 days from the filing of the Second Amended Complaint or inform Plaintiff that she waives service of process or that defense counsel is authorized to accept service on her behalf. Based on Ponce's response regarding service, Plaintiff shall fill out a service packet accordingly and forward it to the Court for service by the United States Marshals Service within five days from learning the address for service. Finally, the Court orders that the discovery deadline -4Case 2:03-cv-01819-JAT Document 132 Filed 09/27/2005 Page 4 of 8

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shall be extended until December 15, 2005 to allow Plaintiff to conduct discovery in connection with Defendant Ponce. Plaintiff's motion for default against Ponce will be denied. DEFENDANT SCALET Plaintiff moves for default judgment against Scalet, who has never appeared in this matter. Scalet was also served through the Marshals by certified mail. However, because Scalet has never appeared in this action, even to contest service, the Court finds that an entry of default would be improper. The Court must assume that Scalet has not received notice of this suit and orders Plaintiff to provide a service packet with a different address where Scalet can be personally served within 10 days from the date of this order. If Scalet cannot be located, the Court will dismiss him from the action. PLAINTIFF'S REQUEST FOR SANCTIONS Plaintiff requests various sanctions against Defendants for failing to participate fairly in this proceeding. The Court declines to award sanctions except to the extent that Defendants are ordered to supply Plaintiff with a copy of his deposition transcript. Plaintiff claims in his Motion to Strike Defendants' Summary Judgment motion that at the time of the taking of his deposition, Defendants stated that they would furnish him a copy. Plaintiff further claims that he is unable to adequately respond to the summary judgment motion in which portions of his deposition transcript are cited to, without having a copy for himself. The Court finds that requiring Defendants to furnish Plaintiff a copy is appropriate. MOTION FOR SUMMARY JUDGMENT The pending motion for summary judgment will be denied without prejudice to Defendants' refiling the motion after the close of the limited discovery outlined in this order. The new dispositive motion deadline is December 22, 2005. Plaintiff's response shall be due by January 23, 2006, with any reply by February 7, 2006. If this case proceeds to trial, the trial date is set for August 8, 2006. CONCLUSION

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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 2) 68);

This Court is ensuring that Plaintiff will have a fair opportunity to present his case. However, the Court cautions Plaintiff that the schedule outlined above will be strictly followed. This matter was filed two years ago and this Court will proceed diligently to reach a speedy and just resolution. The Court expects the same of all parties. The deadlines set forth above will not be extended and the trial date of August 8, 2006, if trial is necessary, is a firm date. Accordingly, IT IS ORDERED DENYING the Motion to Dismiss by Defendant Ponce (Doc. #

IT IS FURTHER ORDERED that Plaintiff's Motion for Sanctions against Both Counsel and Defendant (Doc. # 74) is GRANTED to the extent that Defendants are ordered to provide Plaintiff with a copy of his deposition transcript within 5 days from the date of this order and DENIED in all other respects; IT IS FURTHER ORDERED that Plaintiff's Motion for Entry of Default as to Scalet and Ponce (Doc. # 80) is DENIED; IT IS FURTHER ORDERED Plaintiff's Appeal from Magistrate's Order (Doc. # 86); Plaintiff's Motion to Quash/Strike Defendants' Motion for Summary Judgment (Doc. # 111); and Plaintiff's Motion for Court's Clarification and Action on Pending Motions (Doc. # 121) are GRANTED to the extent that: 1) Plaintiff shall file a Second Amended Complaint within 10 days from the date of this order substituting the trues names of the Doe Defendants; Defendant Ponce and any of the Doe defendants who purportedly joined in the pending motion for summary judgment and/or 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;

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3)

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; and

4)

The discovery deadline shall be extended until December 15, 2005 to allow Plaintiff to conduct discovery in connection with Ponce and the Doe defendants.

IT IS FURTHER ORDERED DENYING the Motion for Summary Judgment by Defendants Ponce, Miles, John Doe and Robert Doe (Doc. # 108) without prejudice; IT IS FURTHER ORDERED that Plaintiff's Motion for Ruling and for Sanctions against Defendants (Doc. # 130) is DENIED as moot; IT IS FURTHER ORDERED that Plaintiff shall provide a service packet with a different address where Scalet can be personally served within 10 days from the date of this order. IT IS FURTHER ORDERED that if Scalet cannot be located, the Court will dismiss him from the action; IT IS FURTHER ORDERED withdrawing the reference of this matter in its entirety; IT IS FURTHER ORDERED that the dispositive motion deadline is December 22, 2005; Plaintiff's response is due by January 23, 2006; Defendants' reply by February 7, 2006. 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 follow; IT IS FURTHER ORDERED that no extensions of any of the deadlines set in this order will be granted; /// /// -7Case 2:03-cv-01819-JAT Document 132 Filed 09/27/2005 Page 7 of 8

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IT IS FURTHER ORDERED that the Clerk of Court shall send six service packets to Plaintiff with this order. DATED this 22nd day of September, 2005.

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