United States District Court, D. Arizona
ORDER
David
C. Bury Judge.
Defendant
filed a Motion for Summary Judgment on July 16, 2018, but
Plaintiff has sought one extension of time after another for
filing the Response, without objection, because he has been
moved from one facility to another and access to his legal
materials was delayed. On October 19, 2018, the Court allowed
for one last extension of time and ordered the Defendants to
arrange for him to immediately request an exchange of legal
boxes so that the Plaintiff could have in his cell the legal
boxes relevant to this action for preparing his Response to
the Motion for Summary Judgment. (Order (Doc. 41)).
When
Defendants provided the Plaintiff with the forms to request
the legal box exchange, he wrote that he needed access to all
the boxes because prison staff had mixed up the contents and
he did not know what legal materials were in which boxes. (Ds
Supplemental Notice, Attachment 1: Inmate Letter 10/25/2018
(Doc. 43-1)). It appears that the Plaintiff has four legal
boxes in his cell and ten in storage. In storage, there are
two boxes labeled #1, 3, 4, 7, 9, 11, 12, and one box labeled
5 and 6. Id. at Attachment 2: Check List for Storage
of Inmate Legal Materials. It appears that since
Plaintiff's transfer he has made three exchanges. On
August 29, 2018, he returned boxes 7 and ll, reviewed boxes
6, 7, 11 and 17 and retained 6 and 17. On October 3, 2018, he
reviewed 9, 12, and 13, and returned them. On October 24,
2018, he reviewed boxes 14 and 15. 12, 13, and 9. The Court
notes that on October 25, 208, when the Plaintiff asked to
review all the legal boxes, he had already had access to the
legal boxes three times and reviewed roughly half of them.
His request to review them all under these circumstances
suggests a certain degree of dilatoriness by Plaintiff.
After
the Court issued its Order on October 19, 2018, and Plaintiff
said he needed to review all his legal boxes in storage, the
Associate Deputy Warden at the Arizona State Prison Complex
Lewis-Rast Unit, Donald Renault, made an “extraordinary
arrangement” for that to happen on November 1, 2018.
Associate Deputy Warden attests that he personally spoke to
the Plaintiff at his cell front and advised him that he
should be prepared to be escorted on the morning of November
1 to review the contents of his stored legal boxes.
Id. at Ex. A: Renault Decl. ¶8.[1] The Deputy Warden
reports that when CO II Bong went to Espinoza's cell for
the purpose of escorting him to review his legal materials
that Espinoza refused and told CO II Bong, “I'm
sleeping I don't want to get up NO I'm not
going.” Id. ¶10. CO II Bong documented
this in an Information Report. Id. at Attachment 3.
CO II Espino documented that the legal material boxes were
then returned to storage. Id., Continuation Sheet to
Information Report.
Plaintiff
files a Response to the Defendants' Supplemental Notice
to the Court reporting the above. Defendant moves to strike
the Response because there is no rule which allows for filing
responses to Notices. The Court will not strike the
Plaintiff's Response. The Plaintiff essentially accuses
the Defendants of lying to the Court.
According
to the Plaintiff, he does not recall any CO coming by his
cell offering a legal box review; CO Bong failed to submit a
first-hand account and all attestations regarding what
Plaintiff told CO Bong are hearsay, and the Inmate Letter
asking to review all his boxes was completed that way at the
express direction of CO III Troman. As for Associate Deputy
Warden Renault's declaration, the Plaintiff asserts it
contains inaccuracies, fabrications, and misleading
statements such as: 1) out-of-cell movement is not strictly
controlled because staff violate policies and procedures for
letting inmates near each other, 2) there were no
extraordinary measurers undertaken to allow him to review the
legal material boxes because his cell is secure and the boxes
could have just been brought there, and 3) he may have been
asleep and not cognizant of CO II Bong because he takes psych
meds. He denies that a conversation occurred between Renault
and himself on Tuesday, October 27th because that
was a Saturday, not a Tuesday and neither on Tuesday, October
23 or 30, did Renault advise Espinoza that he should be
prepared to be escorted on the morning of November 1 to
review his stored legal boxes. (Response (Doc. 44)).
Associate
Deputy Warden Renault makes his Declaration under penalty of
perjury. Id. at 2. The Plaintiff too asserts his
response is a declaration made “under penalty of
perjury. (Response (Doc. 44) at 3.)
Plaintiff
is wrong in urging the Court to disregard evidence related to
what he told CO II Bong. CO II Bong did provide a first-hand
account in his Information Report. (Ds Supplemental Notice,
Attachment 3: Information Report 11/1/2018 (Doc. 43-1)). To
believe the Plaintiff, the Court would have to disbelieve
Associate Deputy Warden, CO IIs Bong and Espino, and would
have to believe that CO III Troman told the Plaintiff to ask
to review all the boxes. To what end and why would CO III
initiate the idea of Plaintiff seeking this
“extraordinary arrangement.” To believe the
Plaintiff the Court would have to believe that all the ADC
staff involved in carrying out the directives in the
Court's October 19, 2018, Order perjured themselves. Such
coordinated out-right lying to this Court would require a
conspiracy. The Court finds no evidence to support the
Plaintiff's assertion that all these individuals perjured
themselves to prevent him for reviewing the legal boxes he
has in storage.
In its
last Order, allowing one last extension of time for the
Plaintiff's Response to the Defendants' Motion for
Summary Judgment, the Court ordered that there would be no
further extensions of time. The Court finds this is an
appropriate sanction in response to the Plaintiffs lack of
diligence in securing whatever legal materials he needs to
file his Response.
Accordingly,
IT
IS ORDERED that the Motion to Strike (Doc. 45) is
DENIED.
IT
IS FURTHER ORDERED that the Plaintiffs Response to
Defendants' Motion for Summary Judgment shall be due
within 30 days of the filing date of this Order. THERE SHALL
BE NO FURTHER EXTENSIONS OF TIME. Failure to file the
Response shall be deemed consent to granting the motion and
the Court shall summarily rule without a response on the
Motion for Summary Judgment. LRCiv. 7.2(i).
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