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Harper v. Unknown Party

United States District Court, D. Arizona

July 3, 2017

Gary Jerome Harper, Plaintiff,
Unknown Party, Defendants.


          David G. Campbell United States District Judge.

         Plaintiff Gary Jerome Harper, who is currently confined in the Arizona State Prison Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 11.) Defendant Klimach moves for summary judgment (Doc. 46), and Plaintiff opposes (Docs. 57, 58, 59).[1] Also pending are Plaintiff's “Motion to Strike Defendant's Motion for Summary Judg[]ment” (Doc. 53) and Plaintiff's “Motion to Dismiss Defendant's Summary Judg[]ment or Grant Plaintiff Continuance” (Doc. 54).

         The Court will deny Plaintiff's Motions, grant Defendant's Motion, and terminate this action.

         I. Background

         In his First Amended Complaint in case CV 15-08212-PCT-DGC (DKD), Plaintiff alleged that Dr. Klimach denied medications that had been prescribed for him by outside doctors prior to his arrival at the Mohave County Jail, including Nitropan, Flomax, Baclofen, Phenergan, Ensure, steroids, and Tylenol 3. (Doc. 11 at 3.) Plaintiff stated that without those medications, he throws up every day, is in constant pain, and his bones and joints constantly hurt due to his past chemotherapy and radiation treatment. (Id.) Plaintiff seeks damages. (Id. at 4.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth and Fourteenth Amendment claim regarding his medical care while he was incarcerated in the Mohave County Jail and directed Dr. Waldemar Klimach to answer.[2] (Doc. 12.)

         In a subsequent Order, the Court granted Defendant's Motion to Consolidate case CV 15-08212-PCT-DGC (DKD) with five other cases filed by Plaintiff against him, which the Court had previously screened and ordered Defendant to answer. (Doc. 21.) Plaintiff's allegations in those five other cases, noted in the case caption above, are as follows:

         In CV 15-08213-PCT-DGC (DKD), Plaintiff alleges that Defendant failed to recommend Augmentation Cystoplasty surgery for Plaintiff, when that surgery would end the need for Plaintiff to use catheters to urinate. (Doc. 8 at 3.) Plaintiff alleges that Defendant told Plaintiff he can get the surgery when he gets to prison and that Defendant denied his request for pain medication, informing Plaintiff “no pain meds for prisoners.” (Id.) As relief, Plaintiff seeks surgery and damages. (Id. at 4.)

         In CV 15-08217-PCT-DGC (DKD), Plaintiff alleges that Defendant refused to prescribe antibiotics and painkillers for an e-coli virus, which left Plaintiff in excruciating pain. (Doc. 9 at 3.) Plaintiff avers that after 33 days of pain, a different doctor ordered a ten-day “treatment, ” which Defendant stopped after five days, and which caused Plaintiff's pain and infection to get worse. (Id.) Plaintiff requests damages and injunctive relief to see if the “virus/bacteria” caused long-term effects. (Id. at 4.)

         In CV 15-08219-PCT-DGC (DKD), Plaintiff alleges that Defendant refused to provide an extension tube for his catheter, which led to bleeding and infection and a green discharge from his penis. (Doc. 9 at 3.) Plaintiff further alleges that Defendant refused to provide any treatment, antibiotics, or pain medication. (Id.) Plaintiff seeks damages. (Id. at 4.)

         In CV 15-08255-PCT-DGC (DKD), Plaintiff alleges that while changing his catheter, Defendant poked Plaintiff's urethra, causing unbearable pain. (Doc. 7 at 3.) Defendant had to get another catheter from an outside hospital, but he refused to prescribe pain medication to Plaintiff in the meantime, which led to Plaintiff suffering in pain for 2.5 hours. (Id.) Plaintiff seeks damages. (Id.)

         In CV 16-08013-PCT-DGC (DKD), Plaintiff alleges that a dentist prescribed a 14-day regimen of antibiotics for an infected tooth before the tooth could be pulled, but, after two days, Defendant took Plaintiff off the antibiotics and pain medications prescribed by the dentist, which left Plaintiff in pain. (Doc. 1 at 3.) Plaintiff avers that his tooth has still not been pulled. Plaintiff seeks damages. (Id. at 4.)

         II. Plaintiff's Motions A. Motion to Strike

         In his Motion to Strike Defendant's Motion for Summary Judgment, Plaintiff asserts that Defendant's Motion is insufficient and redundant because there is no argument that Plaintiff had a serious medical need and Plaintiff neither manufactured his symptoms nor exaggerated their severity. (Doc. 53 at 1.) Defendant responds that his Motion for Summary Judgment complies with the Court's scheduling order, is fully supported by a Separate Statement of Facts and his Declaration, and complies in all respects with Federal Rule of Civil Procedure 56. (Doc. 55 at 1.) Defendant argues that Plaintiff's Motion does not seek to strike his Motion for Summary Judgment on technical grounds but rather because Plaintiff disagrees with its contents, which is not a legal basis for the Motion to Strike. (Id.)

         The Court agrees that Plaintiff has not presented a legal basis to strike Defendant's Motion for Summary Judgment. The Court will deny Plaintiff's Motion to Strike.

         B. Motion to Dismiss

         In his Motion to Dismiss Defendant's Summary Judgment or Grant Plaintiff Continuance, filed on November 17, 2016, Plaintiff asserts that he cannot properly defend against summary judgment without the documents he requested from Defendant but which Defendant has not provided. (Doc. 54 at 1.) If the Court does not grant his Motion to Dismiss, Plaintiff requests a 60-day continuance to get the necessary documents in order to properly respond to Defendant's Motion for Summary Judgment. (Id. at 1-2.) Plaintiff also asserts that Defendant has not complied with this Court's October 27, 2016 Order to provided addresses for Samantha Ramsey and Julie Collins. (Id. at 2.) Plaintiff says he needs their testimony to defend against summary judgment. (Id.) Plaintiff also asks the Court, pursuant to Federal Rule of Civil Procedure 56(d), for an Order directing the Mohave County Jail to have six people provide declarations to Plaintiff and to allow Plaintiff to interview those individuals. (Id.)

         Defendant responded on December 9, 2016 that he did provide addresses for the two witnesses to the Court under seal on November 10, 2016, but those addresses had not yet been provided to Plaintiff because the Court had not decided whether those depositions should proceed. (Doc. 60 at 2 n.1.) Defendant further responds that he does not have custody and control of Plaintiff's medical records, but that he provided Plaintiff with the records he was able to obtain. (Id.) Defendant also argues that a party seeking a continuance to respond to a motion for summary judgment under Rule 56(d) must establish that such information is essential to resist the summary judgment motion, but that Plaintiff had not established that the discovery he seeks will enable him to resist Defendant's summary judgment motion. (Id. at 1.) Plaintiff did not file a reply.

         In a February 10, 2017 Order, the Magistrate Judge denied Plaintiff's request for a continuance to obtain documents, observing that Plaintiff had already filed his Response to Defendant's Motion for Summary Judgment. (Doc. 68 at 3.) Therefore, the Court does not need to address this portion of Plaintiff's Motion.

         In that same Order, the Magistrate Judge granted Plaintiff's “Motion for Deposition to Perpetuate Testimony” of Ramsey and Collins, noting that Defendant had complied with the Court's previous Order to file under seal the last known addresses of Ramsey and Collins. (Doc. 58 at 4.) The Magistrate Judge directed the Clerk of the Court to issue and forward two subpoenas and two U.S. Marshal forms to Plaintiff and further ordered the U.S. Marshal to promptly effect service of Plaintiff's subpoenas once the Clerk received the properly completed forms and subpoenas and Plaintiff tendered the witness fees and costs for each witness pursuant to 28 U.S.C. § 1821. (Id.) According to the docket in this case, Plaintiff did return the subpoenas and forms on February 21, 2017, but the subpoenas were returned to Plaintiff because they were incomplete and because the required witness fees and costs were not enclosed. The docket shows no action by Plaintiff in response. Because the Magistrate Judge granted his Motion for Deposition to Perpetuate Testimony and Plaintiff has not pursued the depositions, this portion of his Motion to Dismiss Defendant's Summary Judgment is moot.

         The remaining issue is Plaintiff's request to interview and obtain declarations from six individuals. Under Federal Rule of Civil Procedure 56(d), a court may defer considering a motion for summary judgment, deny it, or allow more time for discovery if the party opposing summary judgment “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Plaintiff has not made this showing or given any reason for interviewing or obtaining declarations from the six people he identified in his Motion. The Court also notes that Plaintiff was given until September 8, 2016, to complete fact discovery (Doc. 21), and does not claim that this time was insufficient.

         For the above reasons, Plaintiff's Motion to Dismiss Defendant's Summary Judgment or Grant ...

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