Totherrow v. Schriro et al

Filing 49

REPORT AND RECOMMENDATION re 31 MOTION for to Add/Join Parties: Recommending that that the motion be denied. Signed by Magistrate Judge Mark E Aspey on 2/6/2009. (LAD)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHILLIP TOTHEROW, Plaintiff, v. DORA SCHRIRO, et al., Defendants. _____________________________ This matter is ) ) ) ) ) ) ) ) ) ) CIV 07-02218 PHX PGR (MEA) REPORT AND RECOMMENDATION TO THE HONORABLE PAUL G. ROSENBLATT: before the Magistrate Judge on referral from the District Judge, and the determination of the Magistrate Judge is dispositive of some of Plaintiff's claims. Accordingly, the following proposed findings of fact, report, and recommendation are made pursuant to Rule 72(b), Federal Rules of Civil Procedure, and 28 U.S.C. 636(b)(1)(B) and (C). Before the Court is Plaintiff's motion to add/join parties at Docket No. 31. Plaintiff is incarcerated by the Arizona Department of Corrections. Plaintiff filed a civil rights complaint on November 14, 2007, naming Dora Schriro, the Arizona Department of Corrections ("ADOC"), and members of the ADOC Board of Institutional Protectional Committee as defendants. On January 18, 2008, the Court granted Plaintiff's motion to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceed in forma pauperis and dismissed the complaint with leave to amend. On and alleging February these 5, 2008, Plaintiff failed to filed an amended him from complaint naming Herb Haley and Benny Rollins as defendants defendants protect attacks by other inmates in 2001 and 2006. ADOC Eyman Complex in Florence, Arizona. At that time The amended Plaintiff was housed in the Special Management Unit of the complaint sought only injunctive relief. Plaintiff also filed See of a motion seeking a temporary restraining order on March 10, 2008, asking to be placed in protective segregation. Docket No. 9. On March 31, 2008, Plaintiff filed a change address with the Court, indicating he has been moved to the Stiner Unit of the ADOC Lewis facility in Buckeye, Arizona. On April 2, 2008, the Court ordered Defendants Haley and Rollins to answer Count I, the only count, of Plaintiff's amended complaint. Defendants Haley and Rollins waived service and filed an answer to the amended complaint on June 30, 2008. Docket No. 15. See On July 2, 2008, the Court ordered any motion to add parties or to further amend the complaint be filed by September 5, 2008. On [Docket No. Plaintiff September 19] for not did 4, leave lodge 2008, to a Plaintiff file an filed a motion amended amended complaint. complaint. proposed Plaintiff asked for leave to amend his complaint to add a "2nd count of failure to protect with deliberate [indifference] a -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation of Plaintiffs 8th Amendment Rights." Plaintiff also sought Id. to amend his prayer Docket No. 19. for relief to include a monetary award, i.e., "any and all court fees and cost [incurred]." of [permanent] Plaintiff also sought to amend his [segregation]" to alleviate Id. complaint to include a prayer for injunctive relief "in form protective conditions "that pose any further risk now or in future." In his motion Plaintiff stated the factual and legal predicate for "Count Two," an Eighth Amendment failure-to-protect claim against Defendant Rollins and Haley regarding events occurring on March 25, 2008. amend. filed causes of Id. Defendants opposed the motion to See Docket No. 21. The Court granted the motion to amend in an order October of 3, 2008. based in See on Docket event to No. 22. The in Court 2008. in concluded Plaintiff proposed to amend his complaint to allege action an occurring place Plaintiff alleged the event occurring in 2008 was the result Defendants' acts failing Plaintiff protective segregation in 2007. Defendants Haley and Rollins The Court noted the time for would not be substantially The by completing discovery in this matter had not passed and that prejudiced by allowing Plaintiff to amend his complaint and that the proposed amendments were not clearly frivolous. second those amended claims complaint facts which included did in not incorporate Court's order gave Plaintiff until October 31, 2008, to file a reference his prior complaints and which incorporated only and Plaintiff's proposed amendments in the pleading at Docket No. 19. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed a second amended complaint on October 20, 2008, naming Benny Dora and Herb Haley, Protective Director of Segregation of the Prison Arizona Administrator, Operations, Rollins, Schriro, Deputy Director Department of Corrections, as Defendants. rights at the Lewis Complex-Stiner, alleged that, and See Docket No. 27. Florence alia, Complex, because The Second Amended Complaint alleged violations of Plaintiff's Central. Plaintiff inter Defendants denied his request for protective custody on March 25, 2008, Plaintiff was threatened by other inmates on June 6, 2008. On October 27, 2008, Plaintiff filed a "motion to add/join parties." Rollins filed a November 4, 2008. See Docket No. 31. in opposition See Docket No. 33. Defendants Haley and to this motion on response Defendants also filed a substitution of defendants, pursuant to Rule 25(d), Federal Rules of Civil Procedure, through their counsel, on November 3, 2008. Additionally, on October 28, 2008, Defendants Haley and Rollins filed a motion for a screening order with regard to the second amended complaint. On November 25, 2008, the Court screened the Second Amended Complaint These and ordered only Defendants the Haley and Rollins to answer the claims stated in the Second Amended Complaint. Defendants answered Second Amended Complaint on December 24, 2008. Discovery in this matter was See Docket No. 16. Id. to be completed by December 8, 2008. Dispositive motions are to be filed by February 13, 2009. -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's motion at Docket No. 31 seeks to add Ivan Bartos as a defendant because "Mr. Bartos is now decision maker in my current protection issues..." for Plaintiff bringing this suit. Plaintiff believes Mr. Bartos will deny him protective segregation as punishment Plaintiff states that Mr. Bartos is replacing Mr. Rollins as Director of Operations. Defendants assert that Mr. Bartos is not Mr. Rollins' successor at this position, but that Mr. Rollins' successor is James Branch. Defendants also note that Plaintiff alleges Mr. Bartos may harm Plaintiff in the future, a frivolous claim. Because the claim alleged by Plaintiff as a basis for joining Mr. Bartos as a party to this matter is frivolous, i.e., the allegation of future harm, Plaintiff's motion to add Mr. Bartos as a Defendant should be denied. Accordingly, IT IS RECOMMENDED that Plaintiff's motion at Docket No. 31 be denied. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. -5- Thereafter, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parties have ten (10) days within which to file a response to the objections. District of Pursuant to Rule 7.2, Local Rules of objections to the Report and Civil Procedure for the United States District Court for the Arizona, Recommendation may not exceed seventeen (17) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. to timely file of objections the See United States v. ReynaFailure legal a to any Judge factual will or Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). determinations Magistrate constitute waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge. DATED this 6th day of February, 2009. -6-

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