United States District Court, D. Arizona
V. WAKE, UNITED STATES DISTRICT JUDGE
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.
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
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).
Defendant Quintana’s Motion for Summary Judgment
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).
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).
Defendants’ Motion to Compel Plaintiff’s Medical
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).
Defendants’ Motion to Dismiss for Failure to Prosecute
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.).
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