Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 Defendants Dr. Thomas Nathan Crumbley ("Crumbley") and Karen Lynette Marshall 15 ("Marshall") (collectively "Defendants"), by and through counsel, hereby file their 16 Response to Plaintiff
Case 2:03-cv-01344-EHC-HCE

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MEMORANDUM OF POINTS AND AUTHORITIES POSTURE OF THE CASE A. Motion for Sanctions

Plaintiff filed a Motion for Sanctions against Defendant Crumbley on September 11, 2006. [Doc. 250]. This Motion was based exclusively upon Plaintiff's unsupported and untrue assertion that Crumbley refused to participate in discovery. [Id]. The Motion also requested the entry of judgment against Crumbley as a sanction. [Id]. As set forth in detail in the Response to the Motion for Sanctions [Doc. 254 & 255], there was only a short delay in the provision of responses to interrogatories and requests for production, Plaintiff failed to comply with his duty to make a good faith attempt to resolve the supposed discovery dispute prior to filing his motion and entry of judgment by default is a drastic remedy that should be applied only in extreme circumstances not present in the current matter. Independent Productions Corp. v. Loew
Plaintiff filed his Motion for Summary Judgment against Crumbley and the accompanying Statement of Facts on September 18, 2006. [Doc. 258 & 259]. The entire premise of the Motion for Summary Judgment is his completely mistaken assertion that Crumbley failed to timely respond to Plaintiff's Requests for Admission (the "Requests") resulting in the Requests being deemed admitted. [Id]. As clearly demonstrated by

Crumbley's Response and Controverting and Additional Statement of Facts, even though Crumbley had until September 11, 2006 to provide responses to the Requests, responses

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were provided on September 7, 2006, within thirty (30) days of the date of service as evidenced by the certificate of mailing for the responses. [Id]. Crumbley provided timely responses and objections to the Requests pursuant to the applicable Rules and, therefore, they cannot automatically be deemed admitted or relied on to obtain summary judgment. C. Motion for Reconsideration and Motion for Permission to Appeal

Plaintiff filed his Motion for Reconsideration on September 25, 2006 requesting that this Court reconsider its ruling on the pending summary judgment motion, which resulted in the dismissal of Defendant ValueOptions. [Doc. 263]. Plaintiff also filed a Motion for Leave to Appeal to the Ninth Circuit on October 12, 2006 in relation to the Court's dismissal of Defendant ValueOptions. [Doc. 273]. II. ARGUMENT Plaintiff now files his Motion to Stay Summary Judgment Proceedings [Doc. 272] in relation to the Motions for Summary Judgment filed upon behalf of Defendants Marshall and Crumbley. [Doc. 266 & 267]. Both Marshall and Crumbley's Motions for Summary Judgment are based upon the same reasoning this Court relied upon in Dismissing ValueOptions. [Id]. In particular, this Court specifically stated: 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. Plaintiff was allegedly injured as a result of the lack of treatment he received after his release. Accordingly, Plaintiff did not establish an essential element of his case, that he was injured as a result of ValueOptions denying him a federally protected right. [Doc. 257, pp. 4 - 5]. This same reasoning can be applied to the undisputed facts as they relate to the deliberate indifference claims against Marshall and Crumbley. Despite this fact, which should ultimately assure Marshall and Crumbley success upon the same basis, Plaintiff now argues that this Court should stay the summary judgment proceedings because of: (1) his pending Motion for Reconsideration; (2) the possibility that he may and, in fact, already has appealed the decision; (3) his pending Motion for Sanctions

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seeking a default judgment as a discovery sanction; (4) his pending Motion for Summary Judgment against Crumbley that is based exclusively upon the mistaken premise that Crumbley failed to provide timely responses to Plaintiff's Requests for Admission and; (5) the failure of Defendants to provide discovery responses or the premature timing of filing the Motions for Summary Judgment based upon pending discovery. [Doc. 272]. All Plaintiff's reasons are without merit and, in fact, actually weigh in favor of the Court ruling upon the pending Motions for Summary Judgment now to most efficiently conserve valuable judicial resources. First, the fact that Plaintiff has filed a meritless Motion for Reconsideration relating to the dismissal of ValueOptions should have no bearing on the pending summary judgment seeking dismissal of Defendants Marshall and Crumbley for the same justification. In fact, all the Court would need to do is deny the Motion for Reconsideration and this point would be moot. Second, Plaintiff's filing of the Motion for Leave to Appeal to the Ninth Circuit also fails to provide sufficient justification since review should ultimately be refused by the Ninth Circuit since the Order dismissing ValueOptions does not contain the necessary Rule 54(b) language. [Doc. 257]. As such, Plaintiff's pending appeal should be denied under the clear mandate of Rule 54(b), Fed.R.Civ.P., since the Order only disposes of one of the parties to the pending action and is not appealable. 1 Since it does not contain the necessary

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Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Fed.R.Civ.P., 54(b). 4

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language demonstrating such a determination and direction, it is not appealable. Instead, judicial economy would directly support denial of Plaintiff's Motion to Stay since any appeal directed at the Court's reasoning could subsequently and properly include Defendants Marshall and Crumbley who justifiably seek dismissal for the same reasons supporting ValueOptions' dismissal. For the reasons clearly set forth in Defendant Crumbley's Responses, and as outlined in more detail above, Plaintiff's third and forth justifications must also fail based on the proper application of the law to the facts. Finally, no discovery will change the timing of the alleged Constitutional violations and the Plaintiff's injury, which this Court previously determined demonstrated Plaintiff's inability to show that the failure to designate him SMI resulted in deliberate indifference to his medical needs while he was in prison. [Doc. 257]. As such, Crumbley and Marshall's pending Motions for Summary Judgment rest on purely legal grounds already acknowledged by this Court to require dismissal of ValueOptions. This purely legal justification will remain completely unchanged by any discovery efforts and Defendants should not be precluded from obtaining relief. III. CONCLUSION Plaintiff
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/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendants

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Original of the foregoing e-filed with the Clerk this 23 rd day of October, 2006 and Copy hand-delivered this 24 th day of October, 2006, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Street Phoenix, AZ 85003 The Honorable Hector C. Estrada United States District Court 405 West Congress Street Tucson, AZ 85701 Copy of the foregoing mailed this 24 th day of October, 2006, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per /s/ Pam Whitmore

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

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