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Robert E v. State

United States District Court, D. Arizona

November 5, 2019

Robert E., Plaintiff,
v.
State of Arizona, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge

         This case concerns the alleged wrongful removal of a minor child, A.E., from his father's custody; his placement into foster care; and his alleged molestation while in the foster care system. A.E.'s claims have since been dismissed without prejudice (Doc. 145), and the only remaining claims are those asserted by A.E.'s father, Robert E. Defendants separately move for summary judgment. Docs. 160, 162. Defendant Tungland Corporation joins in the motion filed by the State Defendants and Angel Doe. Doc. 166. Plaintiff has not responded. The Court will grant the motions for summary judgment.[1]

         I. Summary Judgment Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further provides:

If a party fails to . . . properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it[.]

Fed. R. Civ. P. 56(e)(3). Thus, the party opposing summary judgment “may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986) (emphasis added); see LRCiv 56.1(b) (requiring the party opposing summary judgment to present evidence that establishes a genuine issue of material fact or otherwise precludes judgment in favor of the moving party).

         II. Undisputed Facts.

         Defendants moved for summary judgment on July 25, 2019. Docs. 160, 162. Plaintiff has not responded to the motions despite being warned that failure to demonstrate a genuine issue of material fact may entitle Defendants to judgment as a matter of law under Rule 56. Doc. 164. Based on Defendants' statements of facts and supporting evidence (Docs. 161, 163), the following facts are undisputed. See Fed. R. Civ. P. 56(e)(3).

         On July 8, 2015, Plaintiffs filed an amended complaint against Defendants seeking damages on claims of negligence and violation of civil rights under 42 U.S.C. § 1983 for incidents that took place while A.E. was in state custody. Doc. 26. Plaintiffs allege A.E. was unlawfully taken from his family, placed in dangerous conditions, exposed to “sexual, mental, and physical abuse, ” and “[d]rugged . . . with harmfully inappropriate psychotropics notwithstanding the denial of parental consent.” Doc. 1-1 at 11-12.

         On October 14, 2016, multiple defendants filed a joint motion to dismiss for lack of prosecution. Doc. 116. The Court granted the motion and dismissed the case with prejudice. Doc. 119. On appeal, the Ninth Circuit reversed and remanded with instructions to impose a sanction other than dismissal with prejudice. Docs. 128, 128-1 at 2.

         On August 21, 2018, Plaintiff A.E. filed a motion to dismiss, which the Court granted without prejudice as to all claims. Docs. 145, 148. In December 2018, the Court denied motions for summary judgment filed by Defendant Tungland Corporation (Doc. 130) and Defendants State of Arizona, Brandy Fuller, Danielle Reiher, Rosanna Mendoza, John M. Testa, Lisa Wilson, and Defendant Angel Doe. Docs. 130, 133. In denying the motions, the Court, in the interests of justice, reopened discovery “for a limited period of time in order to allow the remaining parties in this case to move forward with litigating their claims.” Doc. 146.

         Since the Court's order, Plaintiff has failed to participate in this litigation. Doc. 161 ¶ 1. Notably, Plaintiff has failed to respond to requests from admissions both from Defendant Angel Doe and the State Defendants, has failed to attend his deposition on April 23, 2019, has served no discovery, and has not contacted any attorney of record in this case. Id. ¶ 2.

         III. Discussion.

         A. State Defendants' and Defendant Angel ...


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