Thompson v. Arizona Department of Corrections et al

Filing 37

ORDER accepting and adopting 29 the Magistrate Judge's REPORT AND RECOMMENDATION. Plaintiff's motion to file a second amended complaint (Doc. 26 ) is granted as follows: the plaintiff's Second Amended Complaint (already filed a s Doc. 26 ) shall remain filed; the last name of defendant R.N. Angel Neibles is corrected to be Nieblas; the Second Amended Complaint (Doc. 26 ) is dismissed in its entirety as to defendant Charles Ryan for failure to state a claim. The Clerk of Court must send the plaintiff this Order, and a copy of the Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for Waiver of Service of Summons form for defendants Whiting, Perry, Serna, Diaz and Taylor. See document for details. Signed by Senior Judge Paul G Rosenblatt on 12/14/15. (Attachments: # 1 service packet letter, # 2 service packet 1, # 3 service packet 2, # 4 service packet 3, # 5 service packet 4)(EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth C. Thompson,
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Plaintiff,
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vs.
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Arizona Department of Corrections, et.
al.,
Defendants.

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No. CV-14-00539-PHX-PGR (DMF)
ORDER

No party having objected to the Report and Recommendation of Magistrate Judge
Fine regarding the filing of the plaintiff’s second amended complaint,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc 29)
is accepted and adopted by the Court.
IT IS FURTHER ORDERED that the plaintiff’s motion to file a second amended
complaint (Doc. 26) is granted as follows:
(1) The plaintiff’s Second Amended Complaint (already filed as Doc. 26) shall
remain filed;

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(2) The last name of defendant R.N. Angel Neibles is corrected to be Nieblas.

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(3) The Second Amended Complaint (Doc. 26) is dismissed in its entirety as to

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defendant Charles Ryan for failure to state a claim.

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(4) Defendants Angel Nieblas, Security Staff Sgt. Whiting, COII Perry, COII Serna

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COII Diaz, and Nurse Practitioner Tammy Taylor remain as defendants in Count I of the

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Second Amended Complaint. Defendant Nieblas has already filed an answer (Doc. 27) to

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the Second Amended Complaint and no additional answer is necessary. Defendants

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Whiting, Perry, Serna, Diaz, and Taylor must answer or otherwise respond to Count I of the

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Second Amended Complaint (Doc. 26) by appropriate motion within the time provided by

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the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.

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(5) Count II of the Second Amended Complaint (Doc. 26) is dismissed as to

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defendants Security Staff Sgt. Whiting, COII Perry, COII Serna and COII Serna for failure

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to state a claim. Defendant Angel Nieblas remains a defendant in Count II.

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(6)

The Clerk of Court must send the plaintiff this Order, and a copy of the

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Marshal's Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request for

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Waiver of Service of Summons form for defendants Whiting, Perry, Serna, Diaz and Taylor.

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(7)

The plaintiff must complete and return the service packet to the Clerk of Court

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within 21 days of the date of filing of this Order. The United States Marshal will not provide

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service of process if the plaintiff fails to comply with this Order.

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(8)

If the plaintiff does not either obtain a waiver of service of the summons or

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complete service of the Summons and Second Amended Complaint on the defendants

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within 60 days of the filing of this Order, whichever is later, the action may be dismissed.

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Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i).

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(9)

The United States Marshal must retain the Summons, a copy of the Second

Amended Complaint, and a copy of this Order for future use.
(10)

The United States Marshal must request waiver of service of the summons

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pursuant to Rule 4(d) of the Federal Rules of Civil Procedure as to defendants Whiting,

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Perry, Serna, Diaz and Taylor. The notice to these defendants must include a copy of this

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Order. The Marshal must immediately file signed waivers of service of the summons. If

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a waiver of service of summons is returned as undeliverable or is not returned by a

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defendant within 30 days from the date the request for waiver was sent by the Marshal, the

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Marshal must:

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(a) personally serve copies of the Summons, Second Amended Complaint, and this

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Order upon Defendants pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure;

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and

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(b) within 10 days after personal service is effected, file the return of service for the

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defendants, along with evidence of the attempt to secure a waiver of service of the

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summons and of the costs subsequently incurred in effecting service upon the defendants.

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The costs of service must be enumerated on the return of service form (USM-285) and

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must include the costs incurred by the Marshal for photocopying additional copies of the

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Summons, Second Amended Complaint, or this Order and for preparing new process

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receipt and return forms (USM-285), if required. Costs of service will be taxed against the

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personally served defendants pursuant to Rule 4(d)(2) of the Federal Rules of Civil

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Procedure, unless otherwise ordered by the Court.

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(11)

If a defendant agrees to waive service of the Summons and Second

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Amended Complaint, he or she must return the signed waiver forms to the United States

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Marshal, not to the plaintiff.

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Dated this 14th day of December, 2015.

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