Bertanelli v. Ryan et al

Filing 93

ORDER denying 73 , 74 , 75 , 76 , 78 Plaintiff's Motions for Review. Signed by Senior Judge Paul G Rosenblatt on 8/21/12.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Jonathan C. Bertanelli, ) ) Plaintiff, ) ) v. ) ) Charles L. Ryan, et al., ) ) Defendants. ) ___________________________ ) CV 11-1338-PHX-PGR (BSB) ORDER 15 Before the Court are Plaintiff’s Motions for Review by District Court. (Docs. 73, 74, 16 75, 76, 78.) Plaintiff seeks this Court’s review of the magistrate judge’s orders denying his 17 Motion to Compel Re: ADOC to Produce Plaintiff With Court Ordered Copies of Plaintiff’s 18 Exhibits (Doc. 73); Motion for Leave to Conduct Limited Discovery re Exhaustion of 19 Administrative Remedies (Doc. 74); Motion for Court Ordered Pre Service Discovery (Doc. 20 75); Motion for Leave to File Supplemental Declaration in Support of Plaintiff’s Motion in 21 Opposition to Defendant’s Motion to Dismiss (Doc. 76); and Motion to Stay the Court’s 22 Ruling on Plaintiff’s Motion in Response to Defendants’ Motion to Dismiss (Doc. 78). For 23 the reasons set forth below, the Court will deny Plaintiff’s Motions for Review. 24 Background 25 On July 6, 2011, Plaintiff, an inmate in the custody of the Arizona Department of 26 27 28 Corrections (ADC), filed a civil rights complaint alleging violations of his Eighth Amendment rights. (Doc. 1.) He filed an amended complaint on February 3, 2012. (Doc. 26.) 1 On February 17, 2012, Defendants filed a motion to dismiss based on Plaintiff’s 2 failure to exhaust administrative remedies. (Doc. 31.) Magistrate Judge Anderson issued a 3 briefing order directing Plaintiff to file a response by March 21, 2012, advising him of his 4 obligation to respond, and notifying him of the significance of the motion to dismiss. (Doc. 5 32.) Plaintiff responded to the motion to dismiss on February 29, 2012, and Defendants 6 7 8 9 replied on March 14, 2012. (Docs. 36, 48.) Plaintiff thereafter filed a number of motions, which the magistrate judge denied. Discussion Rule 72(a) of the Federal Rules of Civil Procedure provides the standard for this 10 11 12 13 14 Court’s review of a magistrate judge’s order in a nondispositive matter. The Court must consider objections and modify or set aside any part of the order “that is clearly erroneous or contrary to law.” Magistrate Judge Anderson denied as moot Plaintiff’s Motion to Compel, finding that 15 Plaintiff had been provided with the documents he was seeking. (Doc. 62.) This finding was 16 nor clearly erroneous, as the exhibits at issue are already a part of the record. For the same 17 reason, Plaintiff’s Motion to Stay was also properly denied as moot. (Doc. 63.) 18 Magistrate Judge Anderson did not err in denying Plaintiff’s Motion Court Ordered 19 Pre Service Discovery, as the identity of Defendant Becky “Pellsner” is not relevant to the 20 exhaustion issue. (Doc. 64) 21 Magistrate Judge Anderson did not err in denying Plaintiff’s Motion for Leave to File 22 Supplemental Declaration. He accurately characterized the declaration as a surreply which 23 was not permitted under the local rules or by court order. (Doc. 66.) 24 In his Motion for Leave to Conduct Limited Discovery, Plaintiff sought discovery on 25 the exhaustion issue. Specifically, he requested leave to obtain the names and photographs 26 of the correctional officers assigned to APSC–Florence Central Unit between August 20, 27 28 -2- 1 2010, and April 7, 2011, who signed and dated his grievances and grievance appeals. (Doc. 2 56.) He also sought discovery relating to Defendant Ryan’s informal policies which, 3 according to Plaintiff, prevent inmates from obtaining copies of their grievances and require 4 ADC staff to destroy inmate grievances. (Id.) Defendants opposed the motion as overly 5 burdensome, untimely, and moot. (Doc. 60.) 6 7 8 9 In denying the motion, Magistrate Judge Anderson agreed with Defendants that Plaintiff’s request was overbroad and burdensome. The proposed discovery would require Defendants to provide the names and photographs of every officer who worked at the Central Unit during the relevant eight-month period, so that Plaintiff could review the photos and 10 11 12 13 14 pick out the officers to whom he allegedly submitted grievances. (Doc. 65 at 2.) Magistrate Judge Anderson further determined that providing Plaintiff with the photographs “would jeopardize the safety of those officers especially in view of Plaintiff’s recent threats to harm ADC staff in a similar case filed in this Court.” (Id. at 3.) Finally, the magistrate judge found 15 Plaintiff’s motion untimely, as it was filed more than a month after briefing was completed 16 on Defendants’ Motion to Dismiss. 17 The denial of Plaintiff’s Motion for Limited Discovery was not clearly erroneous or 18 contrary to law under Rule 72(a). As argued by Defendants and found by Magistrate Judge 19 Anderson, Plaintiff’s discovery request for is overly burdensome. It would require 20 Defendants to identify and produce current photographs of every corrections officer to whom 21 Plaintiff may have submitted a grievance during the relevant period, information which is not 22 readily available from the computerized roster logs. (See Doc. 60 at 2; Doc. 81 at 2.) 23 Moreover, Plaintiff has not justified his failure to seek discovery prior to the 24 completion of briefing on the motion to dismiss, or to seek an extension of the deadline for 25 responding to the motion. This is especially true given the fact that Magistrate Judge 26 Anderson specifically advised Plaintiff that his complaint would be dismissed “unless your 27 28 -3- 1 response to Defendants’ Motion [to Dismiss] includes admissible evidence sufficient to show 2 that you exhausted all available administrative remedies or that no administrative remedies 3 were available to you.” (Doc. 32 at 3.) 4 5 6 7 8 9 Magistrate Judge Anderson’s orders dismissing Plaintiff’s motions were not clearly erroneous or contrary to law. Accordingly, IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motions for Review. (Docs. 73, 74, 75, 76, and 78.) IT IS FURTHER ORDERED denying Plaintiff’s Motions for Review. (Docs. 73, 10 11 12 74, 75, 76, and 78.) DATED this 21st day of August, 2012. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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