United States District Court, D. Arizona
HONORABLE DAVID C. BURY, UNITED STATES DISTRICT JUDGE
March 8, 2019, the Defendants filed a Motion for
Clarification of the case management schedule in this case.
The Court agrees that clarification is needed, and it
filed this case on August 1, 2017. The Court screened the
First Amended Complaint and ordered it served on all the
Defendants. The Plaintiff's claims involve allegations
that Dr. Goodman, a doctor for Corizon, changed his high
blood pressure medicine which caused him various bad side
effects and failed to control his blood pressure, and Corizon
nurse Sweetapple refused to allow him to see a doctor in
respect to these problems. He filed related grievances which
were denied by Corizon nurse Watson, and his appeal of her
denials were denied by Jacobs and Ryan. Plaintiff also
alleges a retaliation claim against Defendants Watson and
Jacobs because he was moved to a different, higher custody
prison yard three days after he personally spoke to them
about his grievances.
answered the First Amended Complaint, and Defendant Jacobs
filed a Motion to Dismiss the retaliation claim on the ground
that the Plaintiff failed to exhaust available administrative
remedies. The Court denied the motion because the exhaustion
issue could not be decided on the face of the First Amended
Complaint. (Order (Doc. 31)). The Court clarified that Count
Three was a First Amendment retaliation claim; Counts One and
Two were Eighth Amendment medical care claims. (Order (Doc.
Court issued the Case Management Scheduling Order on April
25, 2018, affording 6 months for discovery commencing with
the Order resolving the question of exhaustion, (Scheduling
Order (Doc. 18)), and stayed all discovery pending resolution
of the Motion to Dismiss. (Order (Doc. 23)). Discovery began:
June 1, 2018.
Plaintiff has repeatedly filed his actual discovery in the
case, requiring this Court to strike these filings. See
e.g. (Order Doc. 65) at 4 (striking Plaintiff's
Interrogatories and Request for Production of Documents). To
be clear, “disclosures under Rule 26(a)(1) or (2) and
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.” Fed. R. Civ. P.5(d)(1).
The Court strikes the following discovery from the record:
Plaintiff's First Request for Production (Doc. 49);
Plaintiff's Response to Defendant's Response to
Plaintiff's First Request for Production (Doc. 58), and
Plaintiff's Response to Defendants' Requests for
Production (Doc. 80). All that is required is a Notice of
Service of Discovery. See e.g. (Ds' Notice (Doc.
66)). This rule is important because it is not the
Court's responsibility to peruse each discovery response
and objection. The parties are responsible for bring
discovery disputes that need to be resolved by the Court
forward by motion after they have met and conferred in good
faith to resolve them.
November 19, 2018, Defendant Jacobs reurged by Motion for
Summary Judgment his argument that the retaliation claim,
Count Three, should be dismissed because Plaintiff failed to
exhaust available administrative remedies. The Court gave the
Plaintiff notice that he must file a Response or run the risk
of the motion being summarily granted. The Court set the
deadline for the Response on December 21, 2018. (Order (Doc.
75)). On November 27, 2018, the Court extended the discovery
deadline related to the merits of the retaliation claim to
be: “30 days following this Court's ruling on the
exhaustion question. (Order (Doc. 76)). Defendants also
brought it to the Court's attention that Defendant
Goodman had failed to file an Answer or propound discovery
and sought an extension. The Court allowed 60 days for the
parties to conduct discovery related to the claims against
Defendant Goodman. Id. The Court held that
“all other discovery is closed.” Id. at
February 11, 2019, the Court reconsidered and allowed limited
additional discovery for the Plaintiff because it was
necessary before he could file a Response to Jacobs'
Motion for Summary Judgment: Exhaustion. The Court ordered
the Defendant to provide the Plaintiff with copies of his
informal or formal grievances and grievance responses that
were not attached to the Motion for Summary Judgment
“beginning 30 days prior to Plaintiff's June 22,
2016 transfer to Rynning Unit and through to 30 days after
the transfer.” (Order Doc. 78) at 2.) The Court allowed
the Plaintiff 30 days to serve no more than 10
interrogatories, including all discrete parts, on Defendant
Jacobs relevant to the question of exhaustion. Id.
The Court allowed 14 days for responses and set the deadline
for Plaintiff to file the Response to Jacob's Motion for
Summary Judgment: June 5, 2019. Id. at 3. On
February 25, 2019, the Defendants filed a Notice of
Compliance that they had served the grievance documents on
March 8, 2019, Defendants filed the Motion for Clarification
of the pending case management dates. The Court has reviewed
the status of the case and vacates all the existing
deadlines. The Court reflects that Count III, the retaliation
claim, has delayed the remainder of this case, which are the
medical claims raised in Counts One and Two. The Plaintiff
now has all the discovery needed to file a Response to
Jacobs' Motion for Summary Judgment: Exhaustion.
Following a ruling by the Court on the question of
exhaustion, if the claim remains the Court has ruled that it
will allow 30 more days for the parties to complete discovery
going to the merits of the retaliation claim. Also remaining
is 60 days of discovery related to claims against Goodman.
The Court agrees that clarification is necessary.
IS ORDERED that the Motion for Clarification (Doc.
82) is GRANTED.
IS FURTHER ORDERED that the existing case management
deadlines are vacated, and reset as follows:
1. Discovery is closed, with the exception of discovery going
to the merits of the retaliation claim and the claim against
2. The Plaintiff shall file the Response to Jacobs'
Motion for Summary Judgment: Exhaustion within 30 days of the
filing date ...