Free Response in Support of Motion - District Court of Arizona - Arizona

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William W. Drury, Jr., #005238 J. Gordon Cook, #000586 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOXTANGA, Plaintiff, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. No. CIV 02-2252-PHX-JAT

CORRECTIONAL HEALTH RESOURCES, ET AL., REPLIES IN SUPPORT OF THEIR MOTIONS SUGGESTING LACK OF JURISDICTION AND TO REMAND TO STATE COURT

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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Defendants Correctional Health Resources, Inc., Kenneth L. Faiver and Rosemary Faiver, and Joseph Edward Rich, M.D. (collectively "CHR") respectfully reply in support of their FED. R. CIV. P. 12(h)(3) suggestion that this Court may lack subject matter jurisdiction over this matter. As a matter of constitutional law, this Court lacks subject-matter jurisdiction.

Accordingly, the Court must remand this case to state court pursuant to 28 U.S.C. § 1447(c). It has no jurisdiction either to allow an amendment or to take any other action. This reply is supported by the following Memorandum of Points and Authorities and this Court's entire file in this matter. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION CHR's motion raised the issue of Article III (constitutional) standing. It did not raise the real party in interest doctrine found in FED.R.CIV.P. 17(a). Plaintiffs' response is based upon

their unsupported assertion that the issue is really one of real party in interest. Plaintiffs are wrong. Before addressing the real party in interest issue, one must first determine if the parties before the court have Article III standing to assert the claim. Here, Plaintiffs argue Rubecca Mikkelsen has always been the personal representative of the estate of Kelly Mikkelsen, and thus has standing to assert claims for his surviving children and father arising out of alleged violation of his constitutional rights. oranges by equating standing with real party in interest. Plaintiffs are mixing apples and

Those two doctrines are not the same.

Article III standing is based upon a plaintiff making a claim that he has been directly injured by the violation of his federal rights. The real party in interest doctrine instead examines the identity of the person who may assert that claim on behalf of the person with Article III standing. Those persons may be the same person, as where the plaintiff whose constitutional rights were allegedly violated brings the claim. Those persons also may be different, as where the estate of a decedent through its personal representative asserts the claim on the decedent's behalf.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Here, Kelly Mikkelsen is the only party with Article III standing to assert a claim for the violation of his constitutional rights. Because he is dead, his estate might have asserted his rights on his behalf. However, the estate of Kelly Mikkelsen has NEVER been a party to this lawsuit. If the estate had filed this lawsuit, it would have had Article III standing. Kelly Mikkelsen allegedly suffered a direct injury as a result of the alleged violation of his constitutional rights, which claim may be asserted on his behalf by his estate. If the estate had filed a lawsuit, this Court might reach the issue of who is the real party in interest to assert that claim. However, no such claim has ever been asserted. The Court thus cannot reach the real party in interest issue. Plaintiffs claim they are entitled to damages because Kelly Mikkelsen's constitutional rights were allegedly violated. Plaintiffs are wrong. Plaintiffs were not injured as a result of the violation of Kelly's constitutional rights. Those rights are personal to him. Plaintiffs have not

alleged violation of any of their federal rights or any injury to them resulting from the violation of their constitutional rights. Thus, they have no Article III standing here. Because they have no

Article III standing, this Court is not faced with a real party in interest issue. There simply is no such issue, since Kelly Mikkelsen's estate has not alleged any claim based on denial of Kelly's personal rights. GOVERNING PRINCIPLES OF LAW 1. "Article III of the Constitution limits the `judicial power' of the United States to the resolution of `cases' and `controversies'." Valley Forge Christian College v. Americans United, etc., 454 U.S. 464, 471 (1982). "As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have `standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge, 454 U.S. at 471. "Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States. Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the `merits' of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, . . .." Valley Forge, 454 U.S. at 475-76. To have Article III standing, a plaintiff must show "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge, 454 U.S. at 472.

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4.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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5.

"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99 (1968). "[W]hen standing is placed in issue . . ., the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast, 392 U.S. at 99-100. "[I]t is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. . . Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power." Flast, 392 U.S. at 101-02. "[T]he standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." International Primate Protection League v. Administrators, etc., 500 U.S. 72, 77 (1991) (emphasis in original). Constitutional rights are personal to the person whose rights were allegedly violated. Los Angeles Police Department v. United Reporting Publishing Corporation, 528 U.S. 32, 39 (1999); Whitmore v. Arkansas, 495 U.S. 149, 161 (1990) (Eighth Amendment rights are personal). Family members of a decedent suing in their individual capacities lack standing to assert claims for violation of the decedent's Fourth Amendment rights because the family members were not directly subjected to the alleged excessive force. Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir. 1987). Family members of a decedent may be entitled to assert claims for alleged violation of their own Fourteenth Amendment rights. Smith, 818 F.2d at 1418; Ward v. City of San José, 967 F.2d 280 (9th Cir. 1992). The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Eighth Amendment "protects only those who have been convicted of a crime". Smith, 818 F.2d at 1424. While many of these same principles apply to prudential standing requirements, "Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself [which right arises out of a federal statute or constitutional provision protecting the plaintiff's legal rights]." Warth v. Seldin, 422 US. 490, 500-501 (1975).

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12. 13. 14.

... ARGUMENT I. CHR'S MOTION RAISES ARTICLE III STANDING ­ A JURISDICTIONAL ISSUE.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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A.

CHR's Motion Does not Raise a Real Party in Interest Objection.

Article III requires a plaintiff to assert a claim based upon violation of his legally protected 3 interest causing him harm. See Warth, 422 U.S. at 500-01. Plaintiffs here have not identified any 4 federally protected legal interest of their own that was allegedly violated. 5 alleged facts sufficient to give this Court jurisdiction. 6 Plaintiffs incorrectly assert this is a simply an issue of compliance with F ED.R.CIV.P. 7 17(a). (Response ("R.") at 3-4). Notably absent from this section of their response is citation to 8 any Ninth Circuit or U.S. Supreme Court case. Plaintiffs instead rely heavily upon New Mexico 9 and Arizona case law. (Id.). 10 The Ninth Circuit holds the "real party in interest" doctrine is very different from 11 "standing." See Kent v. Northern California Regional Office of the American Friends Service 12 13 interest under FED.R.CIV.P. 17(a) does not give a party standing. 14 plaintiff to allege an "actual distinct and palpable injury" to himself "traceable" to the defendant's 15 alleged conduct. Estate v. McKinney v. United States, 71 F.3d 779, 782 fn.4 (9 t h Cir. 1995). 16 Article III also requires the plaintiff to demonstrate he is the proper party to bring the action. 17 McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Circ. 1983). 18 allegations, this Ninth Circuit law establishes this is an Article III standing issue, not a real party 19 in interest issue. 20 alleged violation of their constitutional rights. 21 In fact, case authority relied upon by Plaintiffs, although not binding upon this Court, also 22 establishes this is a jurisdictional issue. 23 standing from real party in interest, stating that standing turns on whether the plaintiff can show 24 "an `injury in fact' traceable to the defendant's conduct" whereas real party in interest "entails 25 identification of the person who possesses the particular right sought to be enforced." 26
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Thus, they have not

Committee, 497 F.2d 1325, 1329 (9th Cir. 1974). The fact that a party may be a real party in Id. Article III requires the

Applied to Plaintiffs'

Plaintiffs have not alleged any direct injury to themselves as a result of any

For example, the New Mexico court distinguished

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

Crumpacker v. DeNaples, 126 N.M. 288, 297, 968 P.2d 799, 808 (App. 1998). The court
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continued to explain that while the named plaintiff had standing to sue because she suffered the alleged injury, she was not the real party in interest because once she filed bankruptcy, the bankruptcy trustee owned the claim. Id. Here, Plaintiffs have not suffered the alleged injury flowing from the alleged Eighth Amendment violation. They thus they have no standing. reason to examine who might be the real parties in interest. Plaintiffs claim, without citation to authority, that because "no living person could ever prove that he was directly injured by the deprivation of Kelly Mikkelsen's civil rights, the question is not whether the plaintiff suffered direct and redressable injury ­ the question is really whether Rubecca Mikkelsen or Kelly's surviving children and father are the proper parties ­ the real party(ies) in interest ­ to bring the claim under Arizona's survival statute and/or Section 1983." Plaintiffs' assertion is directly contrary to Ninth Circuit law. Smith and Moreland v. Las Vegas Metropolitan Police Department, 159 F.3d 365 (9th Cir. 1998), both reject any contention that the decedent's surviving spouse, children or parents have standing to assert a claim for alleged violation of the decedent's constitutional rights. Both cases hold the decedent's estate may assert such a claim on the decedent's behalf ­ the decedent being the only party that may have suffered a direct and redressable injury and thus the party with standing to pursue such a claim. Smith, 818 F.2d at 1416-17; Moreland, 159 F.3d at 369-70. Given the lack of a claim, there is no

Once the claim is asserted by the estate on behalf of the decedent, the court must identify the real party in interest. However, the Court here cannot reach the real party in interest question because the estate has not asserted a claim on behalf of Kelly Mikkelsen. party. ... B. CHR Has not Raised an Issue of Statutory Standing. The estate has never been a

Plaintiffs next incorrectly argue the issue is one of statutory, not constitutional, standing, and that because a federal question was raised, this Court has Article III jurisdiction. (R. 4-5). Yet

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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every United States Supreme Court case cited by the parties on standing holds that it is not sufficient that a constitutional (federal) question be raised ­ the plaintiff also must have standing to raise it. In fact, the case cited by Plaintiffs requires a plaintiff to allege facts showing the

plaintiff has suffered an actual injury from the alleged violation of the plaintiff's rights in order to have Article III standing to pursue the federal claim. A complaint cannot assert a constitutional claim without the further allegation that the plaintiff suffered direct injury from the violation of his constitutional rights. See Steel Company v. Citizens for Better Environment, 523 U.S. 83, 102-04 (1998); see also Friends of the Earth, Incorporated v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181 (2000) ("The relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff."). In sum, Plaintiffs fail to establish that this is an issue of "real party in interest." matter of law, CHR's motion raised an Article III jurisdictional issue. As a

This Court has no

jurisdiction because Plaintiffs have not alleged a direct injury to them arising out of violation of their legally protected rights. Given that fact, the real party in interest issue is premature. II. CHR'S MOTION IS TIMELY. Plaintiffs' entire timeliness argument is based upon their unproven and unsupported assertion that CHR's motion raises a FED.R.CIV.P. 17 real party in interest issue, not a constitutional standing issue. (R. 5-7). As stated in CHR's motion, the issue of this Court's jurisdiction cannot be waived and can be raised at any time. (Motion ("M") at 2-3). "[w]ithout jurisdiction the court cannot proceed at all in any cause. After all,

Jurisdiction is the power to

declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Nordyke v. King, 319 F.3d 1185, 1192 (9th Cir. 2003), quoting Ex parte McCardle, 74 U.S. 506 (1868). III. WHETHER RUBECCA MIKKELSEN COULD HAVE BROUGHT A CLAIM FOR THE ESTATE OF KELLY MIKKELSEN IS NOW IRRELEVANT.

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ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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The pertinent inquiry is not whether the estate of Kelly Mikkelsen (through its personal representative) could have asserted a claim for Kelly Mikkelsen. Instead, the pertinent inquiry is whether Kelly Mikkelsen's estate did assert such a claim for him. This Court must examine the First Amended Complaint's allegations to determine whether it had jurisdiction when the case was removed. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979). Doing so demonstrates conclusively that the estate of Kelly Mikkelsen has never asserted or even attempted to assert such a claim. Plaintiffs have only alleged they are entitled to damages arising They have never alleged a claim brought

out of the alleged violation of his constitutional rights.

by the estate of Kelly Mikkelsen to vindicate his personal alleged rights. IV. THE COMPLAINT CANNOT NOW BE AMENDED. Plaintiffs attempt to minimize the fact that this Court lacks Article III jurisdiction by characterizing the issue as a "technical failure to expressly state that Rubecca is suing, not only on behalf of Kelly Mikkelsen's surviving father and children, but also in her capacity as the Personal Representative of his estate." That argument should be summarily rejected. (R. 8). This

is hardly a "technical failure." As set forth above and in CHR's motion, Plaintiffs' allegations fail to create federal jurisdiction. Accordingly, this Court has no option other than to remand the case to state court. 28 U.S.C. § 1447(c). Notably absent from Plaintiffs' argument is citation to any case authorizing amendment of a complaint to cure the defect in the jurisdictional allegations after the case had been removed to federal court. (R. 8-14). Instead, 28 U.S.C. § 1447(c) provides the case must be remanded to state court: If at any time before final judgment it appear that the district court lacks subjectmatter jurisdiction, the case shall be remanded. (Emphasis added.) Instead, Plaintiffs rely upon statutes and rules not applicable to cases removed to federal court. (R. 8-14). For example, Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998), commented

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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amendment may be available to cure a jurisdictional defect where the court otherwise had subject matter jurisdiction at the case's inception. There, plaintiffs had alleged a violation of their own Fourteenth Amendment rights. The court thus had subject-matter jurisdiction even if the plaintiffs lacked standing to pursue a claim for alleged violation of their deceased son's Fourth Amendment rights. Additionally, the lawsuit was originally filed in federal court. 137 F.3d at 1129. Thus, the court there was not faced with a request to amend a complaint where the action had been removed to federal court and the court had determined it lacked jurisdiction under the only basis alleged which is the situation here. Moreland also was originally brought in federal court. It included several bases for federal jurisdiction, including a claim that the plaintiffs' Fourteenth Amendment rights were violated. Thus, the holding that plaintiffs lacked standing to assert their deceased son's claims did not destroy subject-matter jurisdiction. 159 F.3d at 371. Here, this Court lacks jurisdiction. Where a court lacks jurisdiction, it has no power to do anything other than dismiss the case. Nordyke, supra. 28 U.S.C. § 1447(c) requires remand to state court. Plaintiffs have not cited one case holding to the contrary. As a matter of law, they are not entitled to amend their complaint in this Court. Case law cited in the motion also demonstrates this Court has no jurisdiction to allow an amendment to the complaint to cure the jurisdictional defect. (M 7-8). Plaintiffs' attempt to distinguish these cases fails. (R. 13-14). First, Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92 (1898), holds that where a complaint removed to federal court did not contain sufficient jurisdictional allegations to confer jurisdiction on the federal court, the federal court could not allow amendment, but must remand the case. 169 U.S. at 101. ... Second, although Jackson v. Allen, 132 U.S. 27, 34 (1889), may be a short opinion, its holding is clear. Where the factual allegations necessary to support jurisdiction do not appear in

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ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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the removed complaint, the defect cannot be cured by amendment.

Nothing in the opinion

suggests an amendment would or would not have been futile, as argued by Plaintiffs here. Third, Libhart, supra, is dispositive. There, as here, a complaint was removed despite the lack of federal jurisdiction. The case was removed "claiming the existence of a federal question." 592 F.2d at 1064. After removal, the complaint was amended to add another federal issue. Id. The district court then granted summary judgment on the last-added federal question, holding that the issue in the removed complaint did not raise a federal question. Id. On appeal, the Ninth Circuit raised the jurisdictional issue sua sponte, holding the district court did not have jurisdiction to grant summary judgment. Id. Libhart's analysis is instructive here. It first explained the policy against removal: The removal jurisdiction of the federal courts is derived entirely from the statutory authorization of Congress. We look to federal law to determine whether the elements of removal jurisdiction have been established under the statutes, keeping in mind that removal statutes are strictly construed against removal. 594 F.2d at 1064 (emphasis added). The court vacated the district court's order granting

summary judgment, finding the district court lacked jurisdiction to do anything, including allowing the amendment of the complaint to assert a federal question: The plaintiff in this action did not move to remand the case to the state court. The federal court, however, specifically found, in the process of deciding the cross motions for summary judgment, that the five causes of action comprising the original complaint as filed in the state court did not state a federal question. The court therefore remanded these causes of action to the state court. This was an implicit finding that no basis for removal had existed under § 1441(b) at the time the petition for removal was filed. Therefore, no federal jurisdiction existed to entertain a later amendment to the complaint to allege the sixth cause of action.. . . Although the sixth cause of action, filed in federal court after removal, did state a federal question which would have justified removal had it been alleged in the state court prior to removal, this does not confer removal jurisdiction on the federal court. In determining the existence of removal jurisdiction based upon a federal question, we must look to the complaint as of the time the removal petition was filed. 592 F.2d at 1065 (emphasis added).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Here, the complaint's allegations when the removal petition was filed did not establish Article III jurisdiction. Removal thus was improper. The Court never obtained federal jurisdiction. Accordingly, it has no jurisdiction to entertain a later motion to amend the complaint. See also Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112 (9th Cir. 2002). In sum, this Court lacks subject-matter jurisdiction and thus has no jurisdiction to allow an amendment to the complaint.1 V. THIS COURT CANNOT RETAIN JURISDICTION. 28 U.S.C. § 1447(c) requires remand to state court. Plaintiffs correctly note that where federal jurisdiction exists at the time of removal, this Court has discretion to retain jurisdiction over state law claims. (R. 15). However, that is not the situation here. This Court never obtained jurisdiction over this matter. The statute thus requires remand. VI. PLAINTIFFS ARE NOT ENTITLED TO FEES. Plaintiffs are not entitled to costs and fees for several reasons. (R. 15-16). First, this

Court lacks subject-matter jurisdiction generally. It thus also lacks jurisdiction to award fees or costs. Cf. Libhart, supra (court lacks jurisdiction to entertain motion to amend if it lacked

removal jurisdiction). Plaintiffs have not cited any case law stating this Court may award fees or costs where this Court lacks jurisdiction. Moore was not remanded for lack of jurisdiction but

was remanded because the federal court found the defendants had waived their right to remove the case. Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir. 1992). Thus, it provides no guidance here. Second, Yuma County was the driving force behind removal. (Exhibit 1). CHR did not (Id.).

conduct its own jurisdictional analysis until it involved appellate counsel in this litigation.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

Plaintiffs' proposed Third Amended Complaint does not cure the defect. They added the words "and personal representative of the Estate of Kelly Mikkelsen" to the caption and text but fail to assert a claim for the estate of Kelly Mikkelsen. They continue to allege they are entitled to damages as a result of the alleged violation of Kelly's Eighth Amendment rights. They assert no claim for the estate.
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Apparently, neither the Plaintiffs nor the Court undertook any independent jurisdictional analysis either. Under such circumstances, this Court should deny any request for fees. Moore, 981 F.2d at 447 (court should review facts and law when determining whether to award fees and costs). Third, although Plaintiffs request fees incurred responding to CHR's motion pursuant to FED.R.CIV.P. 11 and 37(c), they have not cited any authority supporting their request. As

established in the motion and this reply, this Court lacks subject-matter jurisdiction and thus this case must be remanded. Plaintiffs are not entitled to fees incurred responding to it. CONCLUSION This Court lacks subject-matter jurisdiction. Plaintiffs have no Article III standing to

assert the claim they purport to assert. Thus, as a matter of law, this Court must remand this case to state court. RESPECTFULLY SUBMITTED this 24th day of October, 2005.

RENAUD COOK DRURY MESAROS, PA S/ James W. Barnhouse William W. Drury, Jr. James W. Barnhouse Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4418 By:

PAUL G. ULRICH By: S/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D.

Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 24th day of October, 2005; and COPY of the foregoing hand-delivered this 24th of October, 2005, to: Hon. James A. Teilborg U.S. District Court 401 W. Washington Phoenix, Arizona 85003 S/ Bobby G. Doisher

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