United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
Order sets forth the Court's rulings on a number of
pending Motions (Docs. 89, 94, 101, 104, 108, 120, 124).
Plaintiff's “Notice and Motion to Compel Answer to
First Amended Complaint” (Doc. 101)
January 8, 2018, Plaintiff moved for an order requiring
Defendants to answer Plaintiff's First Amended Complaint.
(Doc. 101). The Motion will be denied as the Court granted
Plaintiff's request for leave to file a Second Amended
Complaint (Doc. 99). (Doc. 98). The undersigned has screened
the Second Amended Complaint in a Report and Recommendation
that is currently pending before the District Judge. (Doc.
Plaintiff's “Motion to Stay Defendants' Motion
for Summary Judgment and Request for Court Order” (Doc.
104); Plaintiff's “Notice and
Motion to Compel Production and Renewed Request for Order of
Protection” (Doc. 89); and Defendants'
“Motion to Quash Plaintiff's Subpoenas”
January 2, 2018, Defendants filed a Motion for Summary
Judgment (Doc. 91). Defendants concede that Plaintiff
exhausted his administrative remedies with respect to a
property loss claim that the Court dismissed. (Doc. 7 at 6-7;
Doc. 91 at 13). Defendants argue that Plaintiff failed to
exhaust his administrative remedies as to the remaining
threat-to-safety, negligence, and negligent training claims.
(Doc. 91 at 13). The Court has stayed all discovery unrelated
to the exhaustion issue pending the Court's ruling on
Defendants' Motion for Summary Judgment (Doc. 91). (Doc.
January 11, 2018, Plaintiff moved to stay the Motion for
Summary Judgment on the following grounds:
Defendants' [sic] have not filed a [sic] Answer to
Plaintiff's First Amended Complaint and Plaintiff has not
had sufficient opportunity to conduct discovery of records,
documents and information in the possession of the
Defendants' [sic] and unnamed third parties evidencing
Defendants' efforts to frustrate, impede, obstruct or
create unnecessary and unreasonable barriers to Plaintiffs
[sic] and other similarly situated individuals exhaustion of
ADOC administrative remedies . . . .
(Doc. 104 at 1). Prior to filing the Motion to Stay (Doc.
104), Plaintiff filed a “Notice and Motion to Compel
Production and Renewed Request for Order of Protection”
(Doc. 89). Plaintiff states that he served a subpoena duces
tecum on Correctional Officer III (“CO III”) T.
McNamer that commanded production of documents regarding
“the processing and handling of ADOC inmate ASPC
Kingman riot related informal/formal request for
administrative remedies, including monthly statistical
report/summary for the period beginning July 2015 through
December 2015.” (Id. at 1-2). Plaintiff
requests that the Court order CO III McNamer to show cause
why CO III McNamer should not be held in contempt for failure
to comply with the subpoena duces tecum. (Id. at
3-4). Defendants move to quash the subpoena
served on CO III McNamer. (Doc. 94). Defendants also move to
quash the subpoenas duces tecum that Plaintiff purportedly
served on Arizona Department of Corrections
(“ADOC”) Division Director Joe Profiri, ADOC
Deputy Director Jeff Hood, ADOC Inspector General Greg
Lauchner, and Governor Doug Ducey. (Id.). As
recounted by Defendants:
The subpoena to ADC Division Director Profiri demands
production of “Any and all electronic/written
communications/correspondence, investigative reports, written
summaries, memoranda or other documents addressed to/received
from ADOC Director Charles L. Ryan, ADOC Deputy Director Jeff
Hood and Contract Beds Operations Bureau Director Tara Diaz
regarding, pertaining to or involving the July 2015 Arizona
State Prison Complex-Kingman riots and termination of
contract AD9-010-A3.” [Doc. 94-2 at 1].
The subpoena to ADC Deputy Director Hood demands production
of: “Any and all electronic/written
communications/correspondence, investigative reports/
summaries or other documents, photographs, digital images or
video addressed/recieved [sic] from any State
agency/department employee/representative, private
entity/corporation regarding, pertaining to [sic] involving
the July 2015 riots at ASPC Kingman and subsequent
termination of ADOC correctional services contract
AD9-010-A3.” [Doc. 94-3 at 1].
The subpoena to Mr. Lauchner demands production of “Any
and all electronic/written communications/correspondence,
investigative reports/summaries photographs/video/digital
images, addressed/received from any State agency/Dept.
employee, representative, private entity/corporation/person
regarding, pertaining to/involving the July 2015 ASPC-Kingman
riots and subsequent termination of ADOC correctional
services contract AD9-010-A3.” [Doc. 94-4 at 1].
(Doc. 94 at 3-4). Defendants also explain that although
Plaintiff filed a document (Doc. 71-4) indicating that he
served a subpoena on Governor Ducey, Governor Ducey's
office has no record of receiving a subpoena from Plaintiff.
(Doc. 94 at 3; Doc. 94-1 at 3). Plaintiff asserts that
Defendants do not have standing to move to quash the
subpoenas directed to non-parties. (Doc. 110 at 1-2; Doc. 120
at 2). In the interest of judicial economy, the Court does
not resolve the issue because grounds exist for sua sponte
quashing the subpoenas duces tecum, as explained below.
Elite Lighting v. DMF, Inc., Case No. CV 13-1920 JC,
2013 WL 12142840, at *3 (C.D. ...