Free Order - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Shannon Michael Clark, Plaintiff, vs. Value Options; et. al., Defendants.

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No. CV 03-1344-PHX-EHC (HCE) AMENDED ORDER*

Pending before the Court are: (1) Plaintiff's Notice to the Court and Request for Order (Doc. No. 240); (2) Plaintiff's "Motion for Discovery Order and Schedule in regard to Thomas Natthan Crumbley" (Doc. No. 242); (3) Plaintiff's Motion for Additional Discovery (Doc. No. 245); (4) Plaintiff's Motion for Sanctions (Doc. No. 250); (5) Plaintiff's Motion to Clarify and for Evidentiary Hearing (Doc. No. 262); (6) Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa Harnack (Doc. Nos. 285, 286); and (7) Defendants Crumbley and Marshall's Motion for Summary Disposition Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack (Doc. Nos. 290, 291).

On March 12, 2007, the Court entered an Order in which reference was made to Mrs. Lisa Harnack as Plaintiff's mother. (March, 12, 2007 Order, Doc. No. 294 ) On March 21, 2007, Plaintiff filed a "Notice of Clerical Error in Magistrate's March 12, 2007 Order" (Doc. No. 296) indicating that Mrs. Harnack was not related to Plaintiff. She "is the mother of another mentally ill person..." (Id.) The instant Order amends the March 12, 2007 Order to reflect that Mrs. Harnack is not Plaintiff's mother.

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Case 2:03-cv-01344-EHC-HCE

Document 297

Filed 03/23/2007

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On July 23, 2003, this action was referred to Magistrate Judge Morton Sitver pursuant to the Rules of Practice of the U.S. District Court for the District of Arizona. On May 12, 2006, this matter was referred to the undersigned Magistrate Judge in light of Magistrate Judge Sitver's retirement. I. FACTUAL & PROCEDURAL BACKGROUND Plaintiff, who is an inmate confined within the Arizona Department of Corrections (hereinafter "ADOC"), filed the instant pro se action pursuant to 42 U.S.C. § 1983. Plaintiff names as Defendants: (1) ValueOptions, Inc. (hereinafter "ValueOptions"), (2) Dr. Thomas Crumbley; and (3) Karen Marshall.1 (Plaintiff's Second Amended Complaint2). Plaintiff alleges that Defendants Crumbley and Marshall were employees of ValueOptions during the relevant time period. (Id.) Plaintiff further alleges that: (1) Defendant Marshall was deliberately indifferent to Plaintiff's mental health needs in preparing documents for Plaintiff to receive mental health services following his release from prison; (2) Defendant Crumbley was deliberately indifferent to Plaintiff's mental health needs in determining that Plaintiff did not meet the criteria for receiving mental health services following his release from prison; (3) Defendant ValueOptions was deliberately indifferent to Plaintiff's mental health needs for failing to stop Defendant Marshall and Crumbley's conduct; and (4) that Defendants Crumbley and Marshall's conduct constituted medical malpractice under state law. (Id.) Plaintiff's claims do not involve events occurring during his present incarceration. Rather,

Plaintiff also named David Kains as a Defendant. The Court dismissed Defendant Kains prior to service. (September 21, 2004 Report and Recommendation (Doc. No. 52); October 15 2004 Order (Doc. No. 59) (adopting September 21, 2004 Report and Recommendation)). Although Plaintiff captioned his amended complaint: "Second Amended Complaint" (Doc. No. 53), the Court deemed the document as the First Amended Complaint. (September 21, 2004 Order (Doc. No. 52), p.2) However, the record reflects that that complaint has been referred to as the Second Amended Complaint in various filings. To avoid confusion, this Court will refer to the document as the "Second Amended Complaint." -2Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 2 of 12
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his allegations concern a prior incarceration at ADOC and his release therefrom in 2002. Plaintiff alleges, inter alia, that prior to his 2002 release, Defendant ValueOptions conducted a mental health evaluation of Plaintiff and that Defendant Marshall completed an Adult Intake Assessment of Plaintiff. Thereafter, Defendant Crumbley reviewed the assessment and determined that Plaintiff did not qualify for the state Seriously Mentally Ill (hereinafter "SMI") program, which provides for case management, housing support, crisis intervention, psychiatric residential treatment, behavioral health programs, and prevention services. The record reflects that service on Defendants Crumbley and Marshall was properly effected in May of 2006 and Defendants Crumbley and Marshall thereafter answered the Second Amended Complaint. At the time Defendants Crumbley and Marshall appeared, cross-motions for summary judgment filed by Defendant ValueOptions and Plaintiff were pending before the Court. On September 15, 2006, the Court granted Defendant ValueOptions Motion for Summary Judgment, dismissed ValueOptions with prejudice, and denied Plaintiff's Motion for Summary Judgment.3 (September 15, 2006 Order (Doc. No. 257)) On October 25, 2006, the Court denied Plaintiff's Motion for Reconsideration of the Court's order granting Defendant ValueOptions Motion for Summary Judgment. (October 25, 2006 Order (Doc. No. 281)) Plaintiff also attempted a premature appeal of the Court's September 15, 2006 Order. On September 27, 2006, Defendants Crumbley and Marshall filed a Motion for Summary Judgment wherein they argue that they are entitled to summary judgment for the same reason that supported the Court's entry of summary judgment in favor of Defendant

The primary basis for the Court's ruling was that Plaintiff failed to "establish an essential element of his case, that he was injured as a result of ValueOptions denying him a federally protected right" given that "Plaintiff has not alleged, much less demonstrated that the failure to designate him SMI resulted in deliberate indifference to his medical needs while he was in prison." (September 15, 2006 Order, p.4 (Doc. No. 257)) Instead, "Plaintiff was allegedly injured as a result of the lack of treatment he received after his release." (Id.) (emphasis in original). -3Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 3 of 12

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ValueOptions: "Plaintiff was not arguably denied adequate treatment until after his release from prison..." (Defendants Crumbley and Marshall's Motion for Summary Judgment, (Doc. Nos. 266, 267) p.2) Defendants Crumbley and Marshall's Motion for Summary Judgment, together with other motions concerning the Motion for Summary Judgment, are now ready for ruling and will be addressed by separate order. II. MOTIONS A. Plaintiff's Notice to the Court and Request for Order (Doc. No. 240)

Plaintiff requests that the Court "order that Defendant Crumbley pay all costs and fees related to past and present service attempts on him to the U.S. Marshals service for actively evading service in this action." (Notice to the Court and Request for Order, p.1) The executed return of service form reflects that on May 16, 2006, U.S. Deputy Marshal Murphy attempted to personally serve Defendant Crumbley; that a nurse accepted service on Defendant Crumbley's behalf; and "subject evaded service. Multiple calls left with answering service, no return calls made to # left with service. Subject refused to come out of his 'session' when server identified self and purpose of visit." (Doc. No. 235) After execution of service on May 16, 2006, Defendant Crumbley filed an Answer. Plaintiff essentially requests the imposition of costs as a sanction for Defendant Crumbley's alleged evasion of service. The record reflects that Plaintiff, who is appearing in forma pauperis, did not pay for service. Further, Plaintiff has demonstrated no resulting prejudice from the fact that Defendant Crumbley himself did not accept service given that the nurse accepted service on Defendant Crumbley's behalf and soon thereafter Defendant Crumbley filed his answer. Thus, Defendant Crumbley has not claimed that such service was improperly made. Although the costs of service are reimbursable because Defendant Crumbley failed to waive service of summons and thus was personally served, those costs were not enumerated "on the return of service form (USM 285)" as required by the Court's September 21, 2004 Order. (September 21, 2004 Order (Doc. No. 52), p.6) and accordingly the Court -4Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 4 of 12

cannot order the reimbursement for the cost of service at this time. Plaintiff's Notice to the Court and Request for Order (Doc. No. 240) is denied. B. Plaintiff's "Motion for Discovery Order and Schedule in Regard to Defendant

Thomas Natthan Crumbley" (Doc. No. 242) Plaintiff requests that the Court enter a scheduling order. In light of Defendants Crumbley and Marshall's pending Motion for Summary Judgment which is ready for ruling the Court will decline to enter a scheduling order at this time. If appropriate, a scheduling order will issue after resolution of the pending Motion for Summary Judgment. Plaintiff's "Motion for Discovery Order and Schedule in Regard to Defendant Thomas Natthan Crumbley" (Doc. No. 242) is denied. C. Plaintiff's Motion for Additional Discovery (Doc. No. 245)

Plaintiff requests "permission to propound an additional 25 interrogatories to" Defendants Crumbley and Marshall. (Plaintiff's Motion for Additional Discovery, p.1) Defendants did not file an opposition to this Motion. However, given Defendant Crumbley and Marshall's pending Motion for Summary Judgment there is no need for additional discovery until after resolution of that Motion. Accordingly, Plaintiff's Motion for

Additional Discovery (Doc. No. 245) is denied without prejudice and may be renewed if appropriate after resolution of the pending Motion for Summary Judgment. D. Plaintiff's Motion for Sanctions (Doc. No. 250)

Plaintiff initially requests imposition of sanctions against Defendant Crumbley for Defendant Crumbley's failure to respond to Plaintiff's First Set of Interrogatories and Request for Inspection (hereinafter "Discovery Request"). Thereafter, Defendant Crumbley served his discovery responses and Plaintiff filed an "Addendum" to his Motion for Sanctions (Doc. No. 252) (hereinafter "Addendum") in which he takes issue with the adequacy of the responses provided. Plaintiff served his Discovery Request on June 14, 2006. Pursuant to a written

request from Defendant Crumbley's counsel, Plaintiff agreed to allow Defendant Crumbley -5Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 5 of 12

to submit his responses on July 26, 2006. (Defendant Crumbley's Response to Plaintiff's Motion for Sanctions and Addendum to Motion for Sanctions (Doc. No. 254) (hereinafter "Defendant Crumbley's Response), Ex. 1, 2) On August 3, 2006, Defendant Crumbley's counsel advised Plaintiff in writing that he has been unable "to get in contact with Dr. Crumbley to obtain the necessary verification of the responses required by the Rule. As a practical matter, I will be out of town beginning August 4th through the 13th and I will not be back in the office until the 14th. It is my intention to provide you with the discovery responses as soon as I return or as soon as practical thereafter." (Id., Ex. 3) On August 15, 2006 Defendant Crumbley's counsel notified Plaintiff that Defendant Crumbley would be out of town from August 11 to August 21 and that counsel "will be in contact with Dr. Crumbley immediately upon his return and will provide you the answers to discovery as soon as possible." (Id., Ex. 4) On August 24, 2006 Plaintiff filed a "Discovery Request Stipulation Requested by Defendant Thomas Crumbley's Counsel" (Doc. No. 247) (hereinafter "Stipulation") memorializing his agreement with defense counsel to extend the deadline for the discovery responses to August 15, 2006. On August 25, 2006 Plaintiff filed the instant Motion for Sanctions together with a "Certification of Discovery Dispute Resolution Attempts" (Doc. No. 249). On August 28, 2006, Defendant Crumbley's counsel served "Dr. Thomas N. Crumbley's Responses to Plaintiff's First Set of Interrogatories and Requests for Production of Documents." (See Plaintiff's September 5, 2006 Addendum (Doc. No. 252), Ex. A) Plaintiff then filed his Addendum challenging the adequacy of Defendant Crumbley's responses. On September 13, 2006 Defendant Crumbley filed a Notice of Filing of Verification as Supplement to Response to Motion for Sanctions (Doc. No. 255) which contains his August 31, 2006 verification concerning Plaintiff's Discovery Request. Plaintiff requests sanctions pursuant to Rule 37(d), which provides for the imposition of various sanctions when the opposing party wholly fails to respond to the entire discovery request. See Fed.R.Civ.P. 37(d). "Once a motion for sanctions under Rule 37(d) has been made, the delinquent party cannot avoid the sanctions by then making the response to -6Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 6 of 12

discovery requests that should have been made earlier. Although the court may consider the belated response in determining what sanction, if any, to impose, the rule does not become inapplicable because a response is made..." after the filing of the motion for sanctions. 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2291 (2d ed. 1994 & supp.) Rule 37(d) also requires that the motion "include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action." Fed.R.Civ.P. 37(d); see also Local Rule Civil 7.2(j) Rules of Practice of the U.S. District Court for the District of Arizona (same)4; Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) ("pro se litigants are bound by the rules of procedure"); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)("[p]ro se litigants must follow the same rules of procedure that govern other litigants"). Defendant Crumbley contends that Plaintiff failed to confer in good faith to resolve the dispute prior to filing the instant Motion and his Addendum. Plaintiff asserts that he attempted to resolve the dispute in good faith by "granting more than one stipulated extension...Counsel was no longer requesting stipulated extensions, but telling Plaintiff matter of factly that Crumbley was not in contact with them." (Plaintiff's Reply (Doc. No. 261), p. 1) Defendant Crumbley is correct that in order to satisfy Rule 37, generally the parties must take part in meaningful communications that attempt to reach an agreement or compromise to a perceived dispute . (Defendant's Response (Doc. No. 254), pp. 3-5); Tri-

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Local Rule Civil 7.2(j) provides: No discovery motion will be considered or decided unless a statement of moving counsel is attached thereto certifying that after personal consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve the matter. Any discovery motion brought before the Court without prior personal consultation with the other party and a sincere effort to resolve the matter, may result in sanctions. -7-

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Star Pictures, Inc. v. Unger, 171 F.R.D. 94, 99 (S.D.N.Y. 1997); Soto v. City of Concord, 162 F.R.D. 603, 623 (N.D. Cal. 1995) (an "exchange of ideas and opinions is required"). Such a requirement encourages the parties to resolve pretrial discovery disputes without court intervention "in the interest of judicial and client economy and efficient processing of cases." Tri-Star Pictures, Inc., 171 F.R.D. at 99. See also Avent v. Solfaro, 210 F.R.D. 91, 95 (S.D.N.Y. 2002) (the parties are required to make a genuine effort to resolve the dispute before resorting to the court's involvement). Plaintiff certifies to this Court that he attempted to resolve the discovery dispute in "good faith." (Plaintiff's Certification (Doc. No. 249), p.1) Plaintiff attaches: defense counsel's correspondence of July 19, 2006, August 3, 2006, and August 15, 2006, requesting extensions of the deadline to respond; the discovery requests; and Plaintiff's July 21, 2006 letter agreeing to an extension until July 26, 2006 for Defendant Crumbley to submit his discovery responses. (Id., Ex. A, 1, 2, 3) Defense counsel also stated: "it is not that we are refusing to provide you with discovery responses, we simply have not been able to coordinate the matter do date." (Id., Ex. 4) In his July 21, 2006 letter, Plaintiff indicated that although he would agree to the requested extension, he would "not consent to any other stipulated extensions without explanation as to why it is necessary." (Id., Ex. 3) The record reflects that Plaintiff agreed to a second extension to August 15, 2006 for Defendant Crumbley to submit his discovery responses. (Stipulation (Doc. No. 247)) On August 15, 2006 defense counsel indicated that an extension beyond August 15, 2006 would be necessary because Defendant Crumbley would be out of town until August 21, 2006. The record does not reflect that Plaintiff responded to that letter or in any other way attempted to confer with defense counsel. Instead, Plaintiff filed the instant Motion on August 25, 2006. Within in seven days

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of Defendant Crumbley's anticipated return to town, Defendant Crumbley responded to Plaintiff's Discovery Request.5 The documents of record reflect that defense counsel had been conferring about the discovery request and that Plaintiff had consented to previous extensions. When defense counsel indicated that a third extension was necessary, Plaintiff did not respond to him or attempt to initiate a meaningful dialogue concerning this matter and thus did not minimally attempt to arrive at an agreeable solution regarding the latest request for an extension before filing the instant Motion. Nothing on this record indicates that the parties had reached an impasse at least as far as Defendant Crumbley was aware. This is especially so given (1) Plaintiff's previous agreements to an extension; (2) defense counsel's assurance that Defendant Crumbley intended to respond to the Discovery Request; and (3) the fact that Defendant Crumbley would be back in town by August 21, 2006 to address the pending Discovery Request. That Plaintiff "in reaction, may have considered the entire matter to be at an impasse, which is not evident on the record, does not excuse [his] failure" to satisfy the requirement of a good faith attempt to resolve the dispute prior to seeking court intervention. Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 101 (D.Mass. 1996); see also Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440 (D.Or. 1999) (plaintiffs failed to comply with obligation to make good faith effort to resolve discovery dispute where "plaintiffs did not respond to defendants' subsequent overtures to resolve specific discovery disputes.") Plaintiff having failed to satisfy the requirements of Rule 37(d) and Local Rule Civil 7.2(j), sanctions will not issue for Defendant Crumbley's late responses to Plaintiff's Discovery Requests.

Plaintiff argues that Defendant Crumbley did not actually respond until August 31, 2006 when he signed a verification with regard to the responses. Nonetheless, Defendant Crumbley submitted the responses within seven days of his anticipated return to town and his verification within ten days of his anticipated return. -9Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 9 of 12

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The record is completely devoid of any attempt by Plaintiff to confer in good faith in an effort to resolve his claims concerning the adequacy of Defendant Crumbley's responses.6 Moreover, Plaintiff did not certify that after personal consultation and sincere efforts to do so, he and defense counsel were unable to satisfactorily resolve Plaintiff's dispute regarding the adequacy of Defendant Crumbley's responses. Therefore, Plaintiff has also failed to satisfy Rule 37 and Local Rule 7.2(j) with regard to any argument raised in Plaintiff's Addendum concerning Defendant Crumbley's responses. Plaintiff's Motion for Sanctions (Doc. No. 250) is denied. E. Plaintiff's Motion to Clarify and Evidentiary Hearing (Doc. No. 262)

Plaintiff requests clarification as to whether: (1) all defendants have been properly served; (2) all defendants have authorized defense counsel to represent them; and (3) the record sufficiently reflects that all defendants are represented by counsel. At this time, Defendants Crumbley and Marshall are the only remaining defendants. Sections I. and II.A. of this Order address Plaintiff's inquiries concerning service. Further, the record reflects that Defendants are represented by defense counsel of record. Plaintiff has not established a need for an evidentiary hearing concerning his inquiries. Plaintiff's Motion to Clarify and for Evidentiary Hearing (Doc. No. 262) is granted to the extent that this Order serves to provide the clarification Plaintiff requests. The Motion is denied to the extent that Plaintiff seeks an evidentiary hearing. F. Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa

Harnack (Doc. Nos. 285, 286) On September 27, 2006, Mrs. Lisa Harnack, who identifies herself as "the biological mother of an adult son who suffers from a Schizophrenic/Bipolar (Schizoaffective) and

Plaintiff's challenge to the adequacy of Defendant Crumbley's responses is more appropriately brought pursuant to Rule 37(a) which, like Rule 37(d), requires a certification that the movant has conferred or attempted to confer in good faith with the opposing party in an effort to resolve the dispute without court action. See also Local Rule Civil 7.2(j). - 10 Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 10 of 12

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Anxiety Disorder diagnosed by a licensed medical professional," filed an affidavit as a "friend of the Court."7 (Affidavit of Lisa Harnack, (Doc. No. 268), p.1) Mrs. Harnack essentially describes her son's behavior and her encounters with Defendant ValueOptions concerning her son's mental condition. Defendants Crumbley and Marshall move to strike the affidavit because "various sworn statements...lack reliability, foundation, contain inadmissible hearsay opinions and legal conclusions, and contain expert opinions which the declarant is not qualified to make." (Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa Harnack (Doc. No. 285), p.1) Without ruling on the admissibility of the affidavit at this time, the Court will deny Defendants Crumbley and Marshall's Motion. When deciding the pending Motion for Summary Judgment, the Court will be able to determine what is admissible evidence and what is not. Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa Harnack was also docketed as Document Number 286. That Motion is denied as a repetitive filing of the Motion docketed as Number 285. G. Defendant Crumbley and Marshall's Motion for Summary Disposition

Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack (Doc. Nos. 290, 291) Defendant Crumbley and Marshall's Motion for Summary Disposition Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack (Doc. No. 290) is denied as moot in light of the Court's ruling under section II. F. above. Defendant Crumbley and Marshall's Motion for Summary Disposition Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack was also docketed as Document Number 291. That Motion is denied as a repetitive filing of the Motion docketed as Number 290.
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The record reflects that Mrs. Harnack is not Plaintiff's mother and is referring to someone other than Plaintiff when she refers to her son. (Plaintiff's Notice of Clerical Error in Magistrate's March 12, 2007 Order (Doc. No. 296)). - 11 Case 2:03-cv-01344-EHC-HCE Document 297 Filed 03/23/2007 Page 11 of 12

III.

CONCLUSION For the foregoing reasons, IT IS ORDERED that: (1) Plaintiff's Notice to the Court and Request for Order (Doc. No. 240) is DENIED; (2) Plaintiff's "Motion for Discovery and Schedule in regard to Thomas Natthan

Crumbley" (Doc. No. 242) is DENIED; (3) Plaintiff's Motion for Additional Discovery (Doc. No. 245) is DENIED without prejudice; (4) Plaintiff's Motion for Sanctions (Doc. No. 250) is DENIED; (5) Plaintiff's Motion to Clarify and for Evidentiary Hearing (Doc. No. 262) is GRANTED TO THE EXTENT that this Order provides the clarification Plaintiff requests. The Motion is DENIED TO THE EXTENT that Plaintiff seeks an evidentiary hearing. (6) Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa Harnack (Doc. No. 285) is DENIED; (7) Defendants Crumbley and Marshall's Motion to Strike Affidavit of Lisa

Harnack (Doc. No. 286) is DENIED as a repetitive filing of the Motion docketed as number 285; (8) Defendants Crumbley and Marshall's Motion for Summary Disposition

Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack (Doc. No. 290) is DENIED as moot; and (9) Defendants Crumbley and Marshall's Motion for Summary Disposition

Regarding Defendants' Motion to Strike the Affidavit of Lisa Harnack (Doc. No. 291) is DENIED as a repetitive filing of the Motion docketed as number 290. DATED this 22nd day of March, 2007.

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