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Rattler v. Rabie

United States District Court, Ninth Circuit

August 20, 2013

Leo Rattler, Plaintiff,
v.
Yvonne Rabie, Defendant.

ORDER

CINDY K. JORGENSON, District Judge.

On June 10, 2013, Defendant filed a Motion to Dismiss Plaintiff's Complaint. (Doc. 18). Plaintiff filed a Response on July 11, 2013. (Doc. 21). Defendant filed a Reply on July 18, 2013. (Doc. 22). Then, on July 29, 2013, Plaintiff filed a sur-reply. (Doc. 24). Since Plaintiff had not sought leave of Court prior to filing his sur-reply, Defendant filed a Motion to Strike Plaintiff's Sur-Reply on August 12, 2013. (Doc. 25).

Also, on July 11, 2013, Plaintiff filed an Objection to the Self Appointment of the Attorney General's Office to Defend Defendant Rabie in This Case. (Doc. 20). Defendant filed a Response on July 25, 2013.

Background [1]

On February 16, 2008, Plaintiff was incarcerated in the ASPC-Tucson/Winchester Unit, Tucson, Arizona. On that date, he was brought to the health unit to see Defendant Rabie. After checking Plaintiff's vital signs, Defendant Rabie allegedly stated that there was nothing wrong with Plaintiff and he was returned to his housing unit. Thereafter, Plaintiff's condition worsened and he met with Sgt. D. Mayo who determined that Plaintiff needed to see a doctor.

Plaintiff was returned to the health unit later that day. Upon arrival, Defendant Rabie allegedly stated that there was nothing wrong with Plaintiff and she wanted him returned to his housing unit. Later, a doctor arrived at the health unit and instructed Defendant Rabie to get Plaintiff medical attention. Another physician instructed Defendant Rabie to contact an ambulance to take Plaintiff to the hospital. However, Defendant Rabie refused to do so.

Plaintiff's condition worsened and he lost consciousness. Eventually Plaintiff was transported to St. Mary's Hospital where he was admitted to the intensive care unit. Plaintiff remained unconscious through February 21, 2008. When Plaintiff awoke on February 22, 2008, he was told by his treating physicians that they were "not sure that he was going to make it."

A few days later, Plaintiff was discharged from St. Mary's Hospital and returned to the custody of the Arizona Department of Corrections. Plaintiff was released from the custody of the Arizona Department of Corrections on February 23, 2009. After his release he requested his medical records from the Arizona Department of Corrections on multiple occasions. On November 30, 2009, Plaintiff received a partial copy of his medical records. After receiving his medical records, he discovered that on February 19, 2008, he had experienced renal failure and suffered acute kidney injury as a result. Plaintiff had been unaware of this condition prior to reviewing his medical records.

On December 2, 2011, Plaintiff filed a pro se civil rights Complaint against the Arizona Department of Corrections. (Doc. 1). On May 31, 2012, the Court dismissed Plaintiff's Complaint for failure to state a claim and granted Plaintiff thirty days to file a First Amended Complaint. (Doc. 7). On January 2, 2013, Plaintiff filed his First Amended Complaint alleging that Nurse Yvonne Rabie and Sergeant D. Mayo were deliberately indifferent to his serious medical needs.[2] (Doc. 15).

On February 8, 2013, the Court screened Plaintiff's First Amended Complaint in compliance with 28 U.S.C. §1915(e)(2)(B). The Court dismissed Plaintiff's claim against Sgt. D. Mayo. The Court held that Sgt. D. Mayo's actions as alleged did not rise to the level of deliberate indifference. However, the Court determined that Plaintiff had stated a valid claim against Defendant Rabie for deliberate indifference to his serious medical needs. (Doc. 16).

On June 10, 2013, Defendant Rabie filed a Motion to Dismiss Plaintiff's Complaint. In her Motion, Defendant Rabie argues that Plaintiff's claim against Defendant Rabie is barred by the statute of limitations.

Motion to Strike

Defendant Rabie seeks to strike the Plaintiff's sur-reply to her Motion to Dismiss, (Doc. 24), because Plaintiff failed to seek the Court's permission prior to filing his sur-reply. Local Rule 7.2 permits parties to file a motion, response and reply. LRCiv. 7.2(b), (c), (d). Generally, no additional briefing is permitted on a motion without leave of Court.

Plaintiff's Motion seeks to dismiss this action because it is barred by the statute of limitations. If granted, Plaintiff's Complaint would be dismissed and Plaintiff would be statutorily barred from pursuing his 42 U.S.C. §1983 claim. As such, the Court finds that some additional briefing by the Plaintiff opposing Defendant's Motion is warranted in this case. Further, Plaintiff's sur-reply at least in part seeks to correct a typographical error made in its Response. Accordingly, while Plaintiff failed to seek leave ...


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