Totherrow v. Schriro et al

Filing 67

ORDER adopting 49 Magistrate Judge's Report and Recommendation; denying 31 Plaintiff's Motion for Leave to Add or Join Parties. Signed by Judge Paul G Rosenblatt on 8/3/09.(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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Phillip Totherow Plaintiff, v. Dora B. Schriro, et al., Defendants. ) ) ) ) ) ) ) ) ) CV 07-2218-PHX-PGR (MEA) ORDER NON-DEATH PENALTY Currently before the Court is the Report and Recommendation of Magistrate Judge Aspey (Doc. 49) based on Plaintiff Motion to Add or Join Parties. (Doc. 31) Plaintiff's motion seeks to add Ivan Bartos as a defendant based on Petitioner's contention that "Mr. Bartos is now decision maker in my current protection issues..." Plaintiff states that Mr. Bartos is replacing Mr. Rollins as Director of Operations and concludes that Mr. Bartos will deny him protective segregation as punishment for Plaintiff bringing this suit. Defendants assert that Mr. Bartos is not Mr. Rollins' successor at this position, instead Mr. Rollins' successor is James Branch. This Court agrees with Magistrate Judge Aspey and the Defendants that Plaintiff's unfounded allegation of future harm, namely that Mr. Bartos may harm Plaintiff in the future, constitutes a frivolous claim. Consequently, because the claim alleged by Plaintiff as the basis for joining Mr. Bartos1 as a party to this matter is frivolous, Plaintiff's motion to add Mr. Bartos as a Defendant is denied. This conclusion would apply equally to Mr. Branch or any other individual who might replace Mr. Rollins. Unsupported allegations of future harm is not a sufficient basis to join a party as a defendant. 1 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 Accordingly, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 49) is ACCEPTED and ADOPTED by the Court. IT IS FURTHER ORDERED DENYING Plaintiff's Motion for Leave to Add or Join Parties. (Doc. 31.) DATED this 3rd day of August, 2009. 2

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