Free Reply to Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA FELIPE J. MARTINEZ, Plaintiff, v. JAMES W. BAIRD, et al., Defendants. DEFENDANTS' REPLY IN SUPPORT OF THEIR "OBJECTIONS TO PLAINTIFF'S UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S STATEMENT OF DISPUTED FACTUAL ISSUES" No. CV 03-1729-PHX-RCB (LOA)

Defendants Baird, Jones, Siers, and Macabuhay, reply in support of their "Objections to Plaintiff's Undisputed Facts in Support of Motion for Summary Judgment and Plaintiff's Statement of Disputed Factual Issues" ("Objections") as follows: I. Defendants Complied With LRCiv. 56.1. Plaintiff incorrectly asserts that Defendants failed to comply with LRCiv. 56.1 by failing to file a separate statement of facts in opposition to Plaintiff's Motion for Summary Judgment. (Plaintiff's Response at 1.) The Defendants filed a separate Statement of Facts in support of their Motion for Summary Judgment on October 31,

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2005 (Dkt. 83.), which they refer to in their opposition to Plaintiff's Motion for Summary Judgment. II. Plaintiff Filed a Cross-Motion for Summary Judgment. Plaintiff argues that his Motion for Summary Judgment was not "written or intended to be filed as a `cross- motion' for summary judgment," and that his Motion is not responsive to Defendants' Motion for Summary Judgment. (Plaintiff's Response at 2.) Neither the Court nor the Defendants have indicated that Plaintiff's Motion is responsive to the Defendants' Motion or that Plaintiff intended his Motion to be responsive. Plaintiff's Motion for Summary Judgment is simply referred to as a "cross-motion" because it was filed after the Defendants' Motion. Accordingly, Plaintiff's request that the Court take judicial notice regarding his Motion for Summary Judgment should be denied. III. Affidavits of Johnson, Rexrode, Nelson, and Russey Do Not Constitute Admissible Evidence. Plaintiff asserts that he was unaware that it was improper to attach the Affidavits of Johnson, Rexrode, Nelson, and Russey to his Declaration. (Plaintiff's

16 Response at 3.) He requests the Court to consider the Affidavits as individual exhibits. 17 (Id.) Plaintiff seeks to introduce these Affidavits to show that the Arizona Department 18 of Corrections ("ADC") is treating inmates with Hepatitis C and that receiving 19 treatment is often not based on a clinical or "case by case" basis, but is based on 20 outside pressure, i.e., inmates' families and the threat of litigation. (Plaintiff's 21 Response at 4.) To the extent that the Court may determine that the Affidavits may be 22 considered individual exhibits, they do not constitute admissible evidence and should 23 not be considered by the Court. 24 The crux of this case is whether Plaintiff met the ADC's criteria to receive 25 treatment for hepatitis C. The Affidavits of Johnson, Rexrode, Nelson, and Russey do 26

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not address this issue. None of the Affidavits contain information regarding Plaintiff's medical state, medical history, personal history, or the medical care he received. Instead, each of the affidavits relates only to the individual affiant's alleged experience with receiving treatment for hepatitis. While Plaintiff seeks to introduce these Affidavits because each of the inmates allegedly received treatment for hepatitis (Plaintiff's Declaration at ¶ 140), and the ADC was purportedly pressured into providing the treatment, the availability of treatment is not an issue in the case. The issue is whether Plaintiff met the medical criteria to receive the available treatment. Simply stated, he did not. Whether one receives treatment is based on one's individual laboratory results and personal history, and none of the affiants indicates that his laboratory results and personal history are the same, or even remotely similar, to Plaintiff's. Accordingly, the Affidavits do not constitute admissible evidence. IV. Plaintiff's Supplemental Reply Should Be Limited. By order dated May 9, 2006, Plaintiff's Motion to Amend his Motion for Summary Judgment was granted, to the extent that the Court will consider the motion as a supplemental reply. (Dkt. 122.) Plaintiff argues that the only way he will be able to address the Defendants' Objections is if the Court permits him to amend the portions of his Statement of Undisputed Facts and Disputed Facts, as well as his Declaration in Support and his Declaration in Opposition to which Defendants have objected. Defendants argue that Plaintiff's supplemental reply should be limited to the corrections of omissions or defects in the original documents and inadvertent errors. Plaintiff, who now has full knowledge of the Defendants' arguments should not be . . . . . . . . . . . .

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permitted to present new statements of fact or materially alter the content of the documents previously filed. RESPECTFULLY SUBMITTED on this 15th day of May, 2006. TERRY GODDARD Attorney General

s/Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

ORIGINAL and One copy of the foregoing filed this 15th day of May, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 15th day of May, 2006, to: Felipe J. Martinez, #102001 ASPC-Tucson-Santa Rita Unit P.O. Box 24406 Tucson, AZ 85734 Plaintiff Pro Per s/A. Palumbo Secretary to Kelley J. Morrissey
IDS03-0579/RM#G03-04130 960421

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