Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 590

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 590 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 TERRY GODDARD Arizona Attorney General Darrin J. DeLange Assistant Attorney General State Bar No. 015699 1275 W. Washington Street Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 E-mail: Darrin.DeLange@azag.gov Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAMES ELDON ROGERS, Plaintiff, v. DORA SCHRIRO, et al., Defendants. No. CV 07-0142 PHX MHM (JRI) DEFENDANTS RESPONSE TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION/TRO, AND THREE JUDGE COURT (Assigned to the Hon. Mary H. Murguia) Defendants respond to Plaintiff's Motion for Preliminary Injunction, and urge this Court to deny it because it contains no new factual information, no new proof of imminent danger from overcrowding, and is in fact the same basic motion that this Court denied in its Screening Order dated February 7, 2007. [Dkt. 8]. Plaintiff again moves for a Preliminary Injunction/Temporary Restraining Order and a hearing before a three judge court. Plaintiff once again argues that he is threatened with irreparable harm due to threats to his safety and that he is likely to succeed on the merits of his claims. Plaintiff alleges that he was assaulted in 2005, but he does not state facts constituting imminent harm. Furthermore, this Court should decline to convene a three-judge court under 18 U.S.C. 3626 because, under that provision, a prisoner Dockets.Justia.com 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 release order may only be entered if crowding is the primary cause of the violation of the federal right and no other relief will remedy the violation. 18 U.S.C. 3626(a)(3)(E). Plaintiff has provided no evidence or proof that the alleged over-crowding is the primary cause of any federal right, and that a three judge court hearing is the only way to remedy the violation. Since Plaintiff has not shown that he will prevail on the merits, there is no violation established yet. Plaintiff has shown that he can readily access the court by filing pleadings in this case; Plaintiff is fully able to proceed before this Court with his claims; and he has not submitted any evidence that he is subjected to any imminent threat because of alleged over-crowding. Therefore, this Court should dismiss Plaintiff's Motion for Preliminary Injunction, and his request for a three judge hearing. RESPECTFULLY SUBMITTED this 21st day of June, 2007. TERRY GODDARD Arizona Attorney General s/Darrin J. DeLange Darrin J. DeLange Assistant Attorney General Attorneys for Defendants Original e-filed this 21st day of June, 2007, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 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 Copy mailed the same date to: James Eldon Rogers, #157544 ASPC - Eyman - Cook Unit P.O. Box 3200 Florence, AZ 85232-3200 Plaintiff Pro Per s/Colleen S. Jordan Secretary to: Darrin J. DeLange IDS07-0122/RSK:G06-21628 #1016412 3

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