United States District Court, D. Arizona
Honorable John J. Tuchi, United States District Judge.
issue is the Report and Recommendation (Doc. 74)
(“R&R”) submitted by United States Magistrate
Judge James F. Metcalf recommending that the Court dismiss
Count One of the Second Amended Complaint (Doc. 73)
(“SAC”) and dismiss all defendants from Count Two
of the SAC except Defendants Gay, Babich, Johnson, Hawley and
Does 6 - 15. Plaintiff timely filed Objections to the R&R
(Doc. 84), and Defendants filed a Response (Doc. 94) taking
no issue with the R&R.
Metcalf comprehensively and exhaustively analyzed the
remaining Counts One and Two of the SAC as against the
pleading standards of the Federal Rules of Civil Procedure
and Supreme Court law interpreting those requirements. He
correctly concluded that Count One fails to state a
cognizable claim under 42 U.S.C. § 1983, though such a
grievance might be cognizable as a habeas action under 28
U.S.C. § 2241 et seq. Likewise, in analyzing
the allegations supporting Count Two, Judge Metcalf
recognized that the facts as alleged pertaining to Dr. Doe at
Kasson do not reach deliberate indifference standard and that
the allegations addressing Corizon's involvement are
devoid of the necessary underlying factual allegations and
therefore fall far short of the Monell standard. The
Court agrees with Judge Metcalf that the SAC fails to
adequately state claims against the remaining defendants
other than Gay, Babich, Johnson, Hawley and Does 6 - 15.
Objections do not take on any of Judge Metcalf's
reasoning or his application of the law to the allegations
made in the SAC. Instead, that portion of the Objection which
is properly an objection simply attempts to argue past Judge
Metcalf's analysis in conclusory fashion. This will not
carry the day; the Court will overrule the true objections
and adopt the recommendations contained in the R&R.
remainder of the Objections constitute an attempt to move the
Court for an opportunity to yet again amend his complaint to
add new claims including retaliation, as well as to
rehabilitate an old claim or claims and defendants. The Court
notes Plaintiff's statement that, in raising the issue
within his Objections, he was attempting to promote judicial
economy; the Court appreciates the point. But Fed.R.Civ.P.
15(a)(2) provides that at the present stage of litigation in
this matter, Plaintiff can amend again only with consent of
Defendants, which has not been demonstrated, or with the
Court's leave, and the Court requires a motion to amend,
which provides opposing parties adequate time to be heard in
response. If Plaintiff wishes to amend yet again, he must
properly and separately move the Court.
ORDERED overruling the Objections (Doc. 84) and adopting in
whole the R&R submitted by Judge Metcalf (Doc. 74),
including its reasoning.
FURTHER ORDERED dismissing Count One of the SAC without
FURTHER ORDERED dismissing the following defendants without
prejudice: ADOC Director Charles Ryan; Corizon Health; ASPC
Florence Central Unit Warden Greg Fitzer; Lieutenant A.
Quintero; S. Belt, STG Unit; CO II Vasquez, Central Unit; CO
II Castrejon, Central Unit; Central Unit STG Officer Does 1 -
5; Dr. Doe at Kasson; Deputy Warden Days, Grievance, Browning
Unit; and Does - Classification.
FURTHER ORDERED providing Plaintiff sixty days in which to
file a notice of substitution providing an actual name or
names of any Defendant Doe 6 - 15. If no such notice of
substitution with actual name or names is filed within sixty
days of the date of this Order, the Clerk of Court shall
dismiss Does 6 - 15 within out further action, without
FURTHER ORDERED that Defendants Johnson and Hawley shall be
served and thereafter are required respond to the Second
Amended Complaint as follows:
(1) The Clerk of Court must send Plaintiff this Order, and a
copy of the Marshal's Process Receipt & Return form
(USM-285) and Notice of Lawsuit & Request for Waiver of
Service of Summons form for Defendants Johnson and Hawley.
(2) Plaintiff shall complete and return the service packet to
the Clerk of the Court within 20 days of the date of the
filing of this Order. The United States Marshal will not
provide service of process if Plaintiff fails to comply with
(3) The United States Marshal shall retain the Summons, a
copy of such amended complaint, and a copy of this Order for
(4) The United States Marshal shall notify said Defendants of
the commencement of this action and request waiver of service
of the summons pursuant to Rule 4(d) of the Federal Rules of
Civil Procedure. The notice to Defendants shall include a
copy of this Order. The Marshal shall file waivers of service
of the summons or requests for waivers that were returned as
undeliverable as soon as they are received. If a waiver of
service of summons is not returned by ...