EILEEN S. WILLETT, Magistrate Judge.
The Court's rulings on a number of pending motions filed by Plaintiff are set forth below.
On May 16, 2016, the Court issued a Scheduling Order setting forth a procedure for resolving discovery disputes. (Doc. 19 at 3). In bold letters, the Court advised the parties that the Court will not consider a motion regarding discovery matters unless (i) the parties have attempted to resolve the matter through personal consultation and sincere effort as required by Local Rule of Civil Procedure 7.2(j) and (ii) the parties have participated in a discovery conference with the Court. The Scheduling Order set forth the requirements for filing a request for a discovery conference, and informed the parties that a request that does not comply with those requirements may be stricken. (Id.). Finally, the Court advised the parties in bold letters that a discovery motion that is filed in noncompliance with the requirements set forth in the Scheduling Order may be stricken. (Id.). Plaintiff has filed the following motions pertaining to discovery:
Plaintiff's discovery motions do not comply with the requirements set forth in the Court's Scheduling Order. Accordingly, they will be stricken.
Federal Rule of Civil Procedure 5(d) states that "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." LRCiv 5.2 provides that "[a] `Notice of Service' of the disclosures and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after service of such papers."
Plaintiff has filed the following discovery requests in this matter:
Plaintiff has not "used" these discovery requests in the proceeding (e.g. by relying upon responses in support of a motion, supporting a motion to compel, etc.). Therefore, Plaintiff's filing of the actual discovery requests instead of a "Notice of Service" is in violation of LRCiv 5.2 and Federal Rule of Civil Procedure 5(d). The Court will direct the Clerk of Court to strike the filings (Docs. 26, 45, 66, 69, 90, 92). Similarly, Plaintiff's filing of his discovery responses at Docs. 20 and 46 violates LRCiv 5.2 and Federal Rule of Civil Procedure 5(d) and the responses will be stricken. The Court will deem Plaintiff's discovery requests and responses to have been served on Defendants as of the date of filing.
On June 14, 2016, Plaintiff filed a Motion (Doc. 35) indicating that he has discovered that Defendant Dentist Doe's name is Laura Hale. Plaintiff states that he has been informed by Defendants that Defendant Hale is no longer employed by the Arizona Department of Corrections ("ADOC"), but that ADOC has her contact information. Plaintiff requests the Court to provide Defendant Hale's contact information to the United States Marshals Service ("USMS") to effectuate service. Defendants have not responded to Plaintiff's Motion (Doc. 35), and the time to do so has passed. See LRCiv 7.2(i) (failing to file a responsive brief may be deemed consent to the granting of the motion). The Court will grant Plaintiff's Motion (Doc. 35) and will direct counsel for Defendant Utterbeck to file under seal Defendant Hale's last known address. Plaintiff's "Motion Substituting Defendant Laura Hale cause she can not be found to be served" (Doc. 101) will be denied.
On June 28, 2016, Plaintiff filed two identical documents captioned "Motion for Access to Typewriter" (Docs. 49, 50). Plaintiff seeks an order requiring ADOC to give Plaintiff access to a typewriter for the purpose of preparing documents related to this action. Defendant Utterbeck has filed his Response (Doc. 51) to Plaintiff's request. On July 14, 2016, Plaintiff filed a "Qualified Disability for Motion for a Typewriter" (Doc. 57). Because the filing addresses arguments made in Defendant Utterbeck's Response (Doc. 51), it is deemed Plaintiff's Reply. Plaintiff's Motion (Doc. 49) is deemed a request for injunctive relief and will be referred to the District Judge for consideration.
Because Doc. 50 duplicates Doc. 49, the Court will direct the Clerk of Court to strike Doc. 50.
On July 26, 2016, Defendant filed two identical documents captioned "Amended Motion to Substitute Deceased Defendant Aaron East" (Docs. 67, 68).
Federal Rule of Civil Procedure 25(a)(1), which governs the issue of substitution, provides that:
"It is plain. . . that Rule 25(a)(1) applies only to the substitution of legal representatives." Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952). If Rule 25(a)(1) is met, "[t]he substituted party steps into the same position as [the] original party." Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).
In support of his Motion (Doc. 67), Plaintiff states that Mr. Ryan "is responsible for establishing monitoring and enforcing overall operations, policies, and practices of the Arizona State Prison system. . . ." (Id. at 1). Plaintiff states that Ms. Barnett is "in charge of maintaining . . . and supervising all Medical Operations. . . ." (Id. at 2). There is no evidence indicating that Charles Ryan and Julia Barnett are Defendant East's successors-in-interest or legal representatives. In addition, there is no evidence that Plaintiff has served the Motion to Substitute on Mr. Ryan and Ms. Barnett. See Fed. R. Civ. P. 25(a)(3) (requiring service of a motion to substitute on parties and non-parties). The Court will deny Plaintiff's Motion (Doc. 67) for failure to identify a proper person to substitute and for failure to serve the Motion to Substitute on that person.
On July 26, 2016, Plaintiff filed an "Addendum to First Amended Complaint" (Doc. 64) in which Plaintiff requests the Courts "to add" Charles Ryan and Julia Barnett as defendants in this case. Plaintiff also sets forth additional factual allegations supporting his claims. The Court construes Plaintiff's "Addendum" as a motion for leave to amend the First Amended Complaint. However, because the filing is not properly captioned as a motion, fails to comply with LRCiv 15.1, and Plaintiff has subsequently filed a "Motion Requesting Leave to make 2
On August 24, 2016, Plaintiff filed a document requesting the court to "rule on at least" Plaintiff's motion for the appointment of counsel. The Court denied Plaintiff's "Request to be appointed counsel" (Doc. 21) on June 7, 2016. (Doc. 25). Plaintiff's request will therefore be denied as moot. To the extent Plaintiff is seeking a reconsideration of that order, the request is denied as untimely. See LRCiv 7.2(g)(2) ("Absent good cause shown, any motion for reconsideration shall be filed no later than fourteen (14) days after the date of the filing of the Order that is the subject of the motion"). The Court will rule on all other motions filed in this matter in due course.
On August 12, 2016, Defendants Ende, Rojas, and Utterbeck responded to Plaintiff's "Amended Motion to Substitute Deceased Defendant Aaron East" (Doc. 67) and "Addendum to First Amended Complaint" (Doc. 64). (Docs. 83, 84, 86, 87). Plaintiff requests that the Court strike those responses (Doc. 102). As parties to this action, Defendants are entitled to respond to the requests Plaintiff has filed in this case. Plaintiff's "Request to Strike Defendants response to Substitute Deceased Defendant East and responses to Addendum" (Doc. 102) will be denied. See LRCiv 7.2(m) ("a motion to strike may be filed only if it is authorized by statute or rule . . . or if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order").
Plaintiff has filed a number of "Notices" in this matter:
The above Notices do not contain requests for Court action. In the interest of controlling the Court's docket, the Court will not allow the parties to file notices that are not required to be filed pursuant to the Federal and Local Rules of Civil Procedure (e.g. a "Notice of Service" filed pursuant to LRCiv 5.2 of the disclosures and discovery requests and responses listed in Fed. R. Civ. P. 5(d)). As explained in the Court's August 12, 2016 Order (Doc. 82), disputes between the parties that pertain to this action are resolved by the Court only through the filing of a proper motion in accordance with the Federal and Local Rules of Civil Procedure.
In his July 15, 2016 filing (Doc. 58), Plaintiff requests that the Court
Defendants Ende and Rojas have responded (Doc. 77) to Plaintiff's filing, to which Plaintiff has replied (Doc. 81). Plaintiff's request for injunctive relief contained in his July 15, 2016 filing (Doc. 58) will be referred to the District Judge.
Based on the foregoing,
1. Upon receipt of the address for Defendant Hale, the Clerk of Court shall complete and forward to the USMS a service packet for Defendant Hale; and
2. Service shall be made within
