United States District Court, D. Arizona
Honorable David C. Bury, United States District Judge.
March 12, 2019, the Defendant Hubert filed a Motion for
Summary Judgment. On March 20, 2019, the Court issued an
Order explaining that Defendant's Motion for Summary
Judgment if granted would result in dismissal of the action
for failure to exhaust prison administrative remedies. The
Court gave the Plaintiff 30 days, until April 15, 2019, to
file a Response to the Motion for Summary Judgment. On April
22, 2019, the Plaintiff filed a Notice of Change of
Address/Motion for Clarification/Motion for Extension of
Plaintiff alleges he is unable to file a Response to the
Motion for Summary Judgment because he “has not
received a single document for this case, except for Dkt
50since late 2018.” He alleges it is,
therefore, impossible for him to file the Response by
mid-April. He alleges he is “missing thousands of legal
documents, including the entirety of the case file for this
case.” He complains that the hurdles placed in his path
are too many and asks the Court to appoint counsel.
Court denies the request for counsel. Plaintiff has in this
case and others, including CV 17-236 TUC DCB, shown that he
is capable of proceeding pro se. The Court denies counsel
based on Plaintiff's assertion that Defendants have
denied him access to his legal materials.
mid-November 2018, the Plaintiff reported reviewing his case
file and asked the Court to send him documents 33, 32, 31 and
29. (Motion to Request Documents (Doc. 46)). The Court denied
the Plaintiff's request to send these documents because
they were documents he had filed with the Court, he was
e-filing and, accordingly, receives an email confirmation of
his filings and is responsible for keeping copies of the
documents he files. (Order (Doc. 47)).
Court takes judicial notice that despite Department of
Correction (DOC) regulations allowing prisoners to have only
four boxes of legal materials in their cell at one time,
Plaintiff was given all 19 of his legal boxes in his cell on
April 10, 2019. (CV 17-236 TUC DCB (Doc. 69) (SEALED Status
Report at 2.) As of April 15, 2019, defendants in CV 17-236
TUC DCB reported the 19 boxes remained in Plaintiff's
cell and would remain there for a few more days, then he
would be allowed to select four boxes to retain and the
remainder would be returned to storage. Id. The
Court also takes judicial notice of its Order issued in CV
17-236 TUC DCB on March 6, 2019, noting that Plaintiff had
finally obtained access to all 14 of his legal boxes as of
December 20, 2018, therefore, he was able to ascertain which
ones were needed to prepare a response to the pending
dispositive motion. (Order (Doc. 66) at 1-2.) The point being
that Plaintiff has had ample access to his legal materials
since approximately mid-November or December of 2018. The
Court rejects the assertion that Plaintiff does not have
access to his legal materials or does not know which boxes he
Court takes judicial notice that Plaintiff filed a response
to a dispositive motion pending in CV 17-236 TUC DCB on April
29, 2019. It would have been very difficult for him to have
simultaneously prepared the Response to Defendant
Hubert's Motion for Summary Judgment in this case. The
Court shall, therefore, grant Plaintiff a 30-day extension of
time. The Court shall repeat the directives it issued in CV
17-236 TUC DCB.
Plaintiff has noticed a change of address to ASPC
Phoenix-Baker. The Warden in charge of ASPC Phoenix-Baker
shall ensure that for a minimum of three hours per week the
Plaintiff shall have access to pen, paper, and his legal
materials (four boxes of his choice), including a copy of the
Motion for Summary Judgment and corresponding Statement of
Facts,  for the purpose of preparing the Response
to the Motion for Summary Judgment pending in this case.
Plaintiffs' access shall be documented by identifying the
box numbers chosen by Plaintiff to be placed in his cell, the
date the boxes were so placed and any subsequent changes in
his selected legal materials. The Warden shall also record
the dates and times he has access to pen and paper and the
legal materials in the event he is placed on mental health
IS ORDERED that the Motion for Clarification and
Extension of Time (Doc. 53) is GRANTED for 30 days until
May 30, 2019.
IS FURTHER ORDERED that the Clerk of the Court shall
note the Change of Address reported by the Plaintiff to be:
ASPC-Phoenix/Baker, PO BOX 52109, Phoenix, AZ 85072-2109.
IS FURTHER ORDERED that within five days of the
filing date of this Order the Warden in charge of ASPC
Phoenix-Baker shall ensure that for a minimum of 30 days for
three hours per week even when on mental health watch, the
Plaintiff has access to pen, paper, and his legal materials
for the purpose of preparing a Response to the Motion for
Summary Judgment pending in this case.
IS FURTHER ORDERED that the Plaintiff shall file the
Response to the Motion for Summary Judgment by May 30, 2019.
NO FURTHER EXTENSIONS OF TIME SHALL BE GRANTED.
IS FURTHER ORDERED that the Plaintiff's access
to pen and paper and his legal materials shall be documented
as described above and filed ...