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Ross v. Winkle

United States District Court, D. Arizona

May 19, 2016

Douglas Eric Ross, Plaintiff,
v.
Jeffrey Van Winkle, et al., Defendants.

          ORDER

          NEIL V. WAKE, UNITED STATES DISTRICT JUDGE

         This is a civil rights action brought by pro se prisoner Douglas Eric Ross (“Plaintiff”) pursuant to 42 U.S.C. § 1983. Before the Court is Defendants Akin and Contreras’ unopposed Motion to Dismiss for Failure to Prosecute (Doc. 117), which Defendant Burke has joined (Doc. 121). For the following reasons, the Court will grant Defendants’ Motion (Doc. 117) and Joinder (Doc. 121) and dismiss this action with prejudice.

         I. BACKGROUND

         A. Plaintiff’s Claims

         Plaintiff is confined in the Arizona State Prison Complex-Eyman (“ASPC-Eyman”) in Florence, Arizona. On June 27, 2014, Plaintiff filed a four-count Complaint (Doc. 1) pertaining to an alleged assault committed by former ASPC-Eyman Correctional Officer Defendant Burke. Plaintiff also sued Correctional Officers Akin and Contreras and Deputy Warden Van Winkle for their alleged conduct in regards to the alleged assault. The Court ordered Defendants Burke, Akin, and Contreras to answer Counts One, Two, and Three. (Doc. 22 at 7). The Court dismissed Count Four and Defendant Van Winkle. (Id.).

         In July 2015, the Court granted Plaintiff leave to file a six-count First Amended Complaint (Doc. 67) naming Burke, Akin, Contreras, and other prison personnel as Defendants. (Docs. 64, 68). After screening the First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court found that Count Six stated an Eighth Amendment claim against Defendant Quintana, who was the nurse in charge at ASPC-Eyman at the time of the alleged assault. (Doc. 64 at 8-9; Doc. 68 at 1-2). The Court ordered Defendant Burke to answer Count One, Defendant Akin to answer Count Two, Defendant Contreras to answer Count Three, and Defendant Quintana to answer Count Six. (Doc. 68 at 2). The remaining counts and Defendants were dismissed. Defendants Burke, Akin, Contreras, and Quintana have answered the First Amended Complaint. (Doc. 69, 78, 85).

         B. Defendant Quintana’s Motion for Summary Judgment

         Inmates must exhaust their available administrative remedies before bringing Section 1983 lawsuits based on prison conditions. 42 U.S.C. § 1997e(a). On December 2, 2015, Defendant Quintana filed a Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (Doc. 98). Defendant Quintana asserted that Plaintiff did not filed any grievance appeals relating to the allegations against her and therefore failed to exhaust his administrative remedies. (Id. at 4).

         The Court advised Plaintiff of the requirements for responding to the Motion for Summary Judgment. (Docs. 101, 111). Plaintiff, however, did not file a response. On January 26, 2016, the Court granted Defendant Quintana’s Motion for Summary Judgment. (Doc. 112).

         C. Defendants’ Motion to Compel Plaintiff’s Medical Records

         In November 2015, Defendants Akin and Contreras moved for an order compelling Plaintiff to sign an authorization for the release of Plaintiff’s medical records. (Doc. 90). Plaintiff did not respond. On December 22, 2015, the Court granted the Motion to Compel. (Doc. 109).

         D. Defendants’ Motion to Dismiss for Failure to Prosecute

         On March 1, 2016, Defendants Akin and Contreras filed a Motion to Dismiss for Failure to Prosecute (Doc. 117), which indicates that Plaintiff has refused to sign an authorization releasing his medical records. Defendants Akin and Contreras stated that because this case involves “allegations of physical assault, with no available video footage to prove or disprove the claims, medical records would be the best evidence by which to test Plaintiff’s allegations.” (Id. at 2). Defendants Akin and Contreras asserted that they are prejudiced by Plaintiff’s refusal to provide access to Plaintiff’s medical records. (Id.).

         On March 3, 2016, the Court advised Plaintiff of the March 18, 2016 deadline for responding to the Motion to Dismiss (Doc. 117). (Doc. 119). In bold letters, the Court informed Plaintiff that pursuant to Rule 7.2(i) of the Local Rules of Civil Procedure (“LRCiv”), the “failure of Plaintiff to respond to the Motion to Dismiss may in the discretion of the Court be deemed as consent to the granting of that Motion without further notice, and judgment may be ...


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