Totherrow v. Schriro et al

Filing 60

REPORT AND RECOMMENDATION re 56 MOTION to Amend Complaint: Recommending that that Plaintiff's Motion for Leave to File an Amended Complaint which adds additional parties and claims for relief be denied. Signed by Magistrate Judge Mark E Aspey on 4/13/09. (LSP)

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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). Plaintiff, who is now incarcerated by the Arizona Department of Corrections, filed a civil rights complaint on November 14, 2007, naming Dora Schriro, the Arizona Department of Corrections, and members of the Board of Institutional Protectional Committee as defendants. the Court granted Plaintiff's motion On January 18, 2008, to proceed in forma pauperis and dismissed the complaint with leave to amend. 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 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. On April 2, 2008, The Court without the Court ordered Defendants Haley and Rollins to answer Count I of Plaintiff's amended complaint at Docket No. 8. denied Plaintiff's motion for injunctive relief prejudice. Defendants waived service and filed an answer to the amended complaint on June 30, 2008. See Docket No. 15. On July 2, 2008, the Court ordered any motion to add parties or to further amend the complaint be filed by September 5, 2008. Plaintiff filed a motion [Docket No. 19] for leave to file an amended complaint on September 4, 2008. did not lodge a proposed amended complaint. Plaintiff In an order The In an issued October 3, 2008, the Court allowed Plaintiff until October 31, 2008, to file a second amended complaint. Second Amended Complaint was filed October 20, 2008. order issued November 25, 2008, the Court ordered Defendants to answer the claims stated in the Second Amended Complaint. Defendants filed a motion to dismiss on February 11, 2009. Plaintiff filed a response to the motion to dismiss and Defendants oppose the motion for a motion [Docket No. 56] for leave to amend his Second Amended Complaint on March 16, 2009. leave to amend the Second Amended Complaint. The scheduling order required all motions to join parties or to further amend pleadings be filed by September 5, 2008. Plaintiff has filed two amended complaints since his -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 original pending. complaint was filed. A dispositive motion is Accordingly, IT IS RECOMMENDED that Plaintiff's motion for leave to file an amended complaint which adds additional parties and claims for relief be denied. DATED this 13th day of April, 2009. -3-

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