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Gause v. Unknown Indy

United States District Court, D. Arizona

September 1, 2016

Richard LeGrand Gause, Plaintiff,
v.
Unknown Indy, et al., Defendants.

          ORDER

          Eileen S. Willett, United States Magistrate Judge

         The Court's rulings on a number of pending motions filed by Plaintiff are set forth below.

         I. DISCUSSION

         A. Plaintiff's Discovery Motions

         On May 16, 2016, the Court issued a Scheduling Order setting forth a procedure for resolving discovery disputes. (Doc. 19 at 3). In bold letters, the Court advised the parties that the Court will not consider a motion regarding discovery matters unless (i) the parties have attempted to resolve the matter through personal consultation and sincere effort as required by Local Rule of Civil Procedure 7.2(j) and (ii) the parties have participated in a discovery conference with the Court. The Scheduling Order set forth the requirements for filing a request for a discovery conference, and informed the parties that a request that does not comply with those requirements may be stricken. (Id.). Finally, the Court advised the parties in bold letters that a discovery motion that is filed in noncompliance with the requirements set forth in the Scheduling Order may be stricken. (Id.). Plaintiff has filed the following motions pertaining to discovery:

1. “Motion to have Defendants Supply Complete Medical Records per Discovery Request” (Doc. 36);[1]
2. “Order Defendants to Produce Discovery” (Doc. 44);
3. “Motion Ordering Defendants to Produce [Discovery]” (Doc. 56);
4. “Motion to Order Defendants to Produce” (Doc. 70); and
5. “Motion to Order Defendant Utterbecks Counsel to Produce Discovery” (Doc. 89).

         Plaintiff's discovery motions do not comply with the requirements set forth in the Court's Scheduling Order. Accordingly, they will be stricken.

         B. Plaintiff's Filed Discovery Requests and Responses

         Federal Rule of Civil Procedure 5(d) states that “the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.” LRCiv 5.2 provides that “[a] ‘Notice of Service' of the disclosures and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after service of such papers.” Plaintiff has filed the following discovery requests in this matter:

1. “Discovery Request” (Doc. 26);
2. “2nd Discovery Request” (Doc. 45);
3. “Amended Discovery Request to Defendant Utterbeck” (Doc. 66);
4. “Discovery Request (3rd to Defendants Rojas and E[nde]) (Doc. 69);[2]
5. “Third Request to Defendants Ende and Roja's Counsel” (Doc. 90); and
6. “Notice to J. Scott Conlon for Discovery Production” (Doc. 92).

         Plaintiff has not “used” these discovery requests in the proceeding (e.g. by relying upon responses in support of a motion, supporting a motion to compel, etc.). Therefore, Plaintiff's filing of the actual discovery requests instead of a “Notice of Service” is in violation of LRCiv 5.2 and Federal Rule of Civil Procedure 5(d). The Court will direct the Clerk of Court to strike the filings (Docs. 26, 45, 66, 69, 90, 92). Similarly, Plaintiff's filing of his discovery responses at Docs. 20 and 46 violates LRCiv 5.2 and Federal Rule of Civil Procedure 5(d) and the responses will be stricken. The Court will deem Plaintiff's discovery requests and responses to have been served on Defendants as of the date of filing.

         C. Plaintiff's “Motion to have Defendants provide Marshalls [sic] [with] Home Address of Defendant Dentist Doe” (Doc. 35) and “Motion Substituting Defendant Laura Hale cause she can not be found to be served” (Doc. 101)

         On June 14, 2016, Plaintiff filed a Motion (Doc. 35) indicating that he has discovered that Defendant Dentist Doe's name is Laura Hale. Plaintiff states that he has been informed by Defendants that Defendant Hale is no longer employed by the Arizona Department of Corrections (“ADOC”), but that ADOC has her contact information. Plaintiff requests the Court to provide Defendant Hale's contact information to the United States Marshals Service (“USMS”) to effectuate service. Defendants have not responded to Plaintiff's Motion (Doc. 35), and the time to do so has passed. See LRCiv 7.2(i) (failing to file a responsive brief may be deemed consent to the granting of the motion). The Court will grant Plaintiff's Motion (Doc. 35) and will direct counsel for Defendant Utterbeck to file under seal Defendant Hale's last known address. Plaintiff's “Motion Substituting Defendant Laura Hale cause she can not be found to be served” (Doc. 101) will be denied.[3]

         D. Plaintiff's Motions for an Order Granting Plaintiff Access to a Typewriter

         On June 28, 2016, Plaintiff filed two identical documents captioned “Motion for Access to Typewriter” (Docs. 49, 50). Plaintiff seeks an order requiring ADOC to give Plaintiff access to a typewriter for the purpose of preparing documents related to this action. Defendant Utterbeck has filed his Response (Doc. 51) to Plaintiff's request. On July 14, 2016, Plaintiff filed a “Qualified Disability for Motion for a Typewriter” (Doc. 57). Because the filing addresses arguments made in Defendant Utterbeck's Response (Doc. 51), it is deemed ...


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