Folta #153847 v. Van Winkle et al

Filing 84

ORDER granting Defendants' "Motion to Extend the Time to Respond to Plaintiff's Motion for Service by Publication (Doc. 61)" (Doc. 65 ). FURTHER ORDERED denying Plaintiff's "Motion for Service by Publication as to Defen dant Richard Basso" (Doc. 61 ). FURTHER ORDERED granting Defendants' "Motion for Leave to File Under Seal Defendant Basso's Home Address" (Doc. 67 ). Defendants shall file under seal the home address of Defendant Basso by J anuary 19, 2016. Upon receipt of the address, the Clerk of Court shall prepare and send to the U.S. Marshal a service packet for service of the Summons and Complaint upon Defendant Basso. The time for completing service is extended sixty days from th e date this Order is filed. FURTHER ORDERED granting Defendants' "Motion to Strike Plaintiff's Filings (DKTS. 8, 9, 14, and 17)" (Doc. 75 ). The Clerk of Court is directed to strike the documents docketed as Document Nos. 8 , [9 ], 14 , and 17 . IT IS FURTHER ORDERED denying Defendants' "Motion to Strike Plaintiff's First Amended Complaint (Doc. 60)" (Doc. 64 ). FURTHER ORDERED granting in part and denying in part Plaintiff's "Motion to Compe l Production of Documents" (Doc. 76 ) as set forth herein. By February 16, 2016, counsel for Defendants shall produce any and all disciplinary history pertaining to Defendant CO II Burke. IT IS FURTHER ORDERED that "Motion for Default Judgement [sic] Against Dustin Burke" (Doc. 62 ) is referred to the District Court Judge. Signed by Magistrate Judge Eileen S Willett on 1/13/2016.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shawn Michael Folta,

No. CV-14-01562-PHX-PGR (ESW)

Plaintiff,

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v.

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ORDER

Jeffrey Van Winkle, et al.,

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Defendants.

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Pending before the Court are a number of motions. The Court has reviewed the
motions and issues its orders as set forth below.
I. DISCUSSION

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A. Motions Pertaining to Service of Defendant Basso

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On October 26, 2015, Plaintiff filed a “Motion for Service by Publication as to

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Defendant Richard Basso” (Doc. 61).

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“Motion to Extend the Time to Respond to Plaintiff’s Motion for Service by Publication

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(Doc. 61)” (Doc. 65) and a “Response in Opposition to Plaintiff’s Motion for Service by

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Publication [Doc. 61]” (Doc. 66). For good cause shown, Defendants Motion to Extend

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the Time to Respond (Doc. 65) is granted.

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On November 13, 2015, Defendants filed a

In his Motion (Doc. 61), Plaintiff requests to serve Defendant Basso by

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publication.

Defendants oppose Plaintiff’s Motion because the Arizona Attorney

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General’s Office has obtained Defendant Basso’s home address. (Doc. 66).

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Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that service may be

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made in any manner provided for under state law. Service by publication is permitted

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under Rule 4.1(n) of the Arizona Rules of Civil Procedure. Arizona law requires that

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prior to seeking service by publication, a plaintiff must provide an affidavit or declaration

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evidencing that the plaintiff exercised due diligence to locate a defendant to effect

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personal service.

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Plaintiff has not provided such an affidavit or declaration.

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indicate that Defendant Basso’s home address is now known. Plaintiff’s “Motion for

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Service by Publication as to Defendant Richard Basso” (Doc. 61) is denied. Defendants’

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“Motion for Leave to File Under Seal Defendant Basso’s Home Address” (Doc. 67) is

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granted. Defendants shall file under seal the home address of Defendant Basso by

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January 19, 2016.

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send to the U.S. Marshal a service packet for service of the Summons and Complaint

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upon Defendant Basso. The time for completing service is extended sixty days from the

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date this Order is filed.

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Barlage v. Valentine, 210 Ariz. 270, 273 (Ariz. Ct. App. 2005).
Moreover, Defendants

Upon receipt of the address, the Clerk of Court shall prepare and

B. Defendants’ “Motion to Strike Plaintiff’s First Amended Complaint (Doc.
60)” (Doc. 64)

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In its October 2015 Order (Doc. 56), the Court granted Plaintiff’s “Motion for

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Leave to File Amended Complaint.” As Plaintiff submitted only a redline version of the

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proposed First Amended Complaint with his Motion for Leave, the Court ordered

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Plaintiff to file a “clean” version of the First Amended Complaint. (Id. at 4). On October

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26, 2015, Plaintiff filed a “clean” version of the First Amended Complaint (Doc. 60).

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On November 5, 2015, Defendants filed a “Motion to Strike Plaintiff’s First

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Amended Complaint (Doc. 60)” (Doc. 64). Defendants request that the Court strike

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Plaintiff’s First Amended Complaint on the ground that Plaintiff failed to comply with

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the Court’s Order (Doc. 56) by including language in the “clean” version of the First

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Amended Complaint that was not present in the redline version. In the alternative,

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Defendants request that the Court screen the First Amended Complaint pursuant to 28

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U.S.C. § 1915A(a).

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The Court has reviewed the additional language included in the “clean” version of

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the First Amended Complaint and does not find that it substantially alters the claims

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presented in the redline version. Accordingly, Defendants’ “Motion to Strike Plaintiff’s

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First Amended Complaint (Doc. 60)” (Doc. 64) is denied. The Court will screen the First

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Amended Complaint by separate order.

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C. Defendants’ “Motion to Strike Plaintiff’s Filings (DKTS. 8, 9, 14, and 17)”
(Doc. 75)
Defendants request that the Court strike the following four documents filed by
Plaintiff: (i) “Declaration by Plaintiff Shawn Folta . . .” (Doc. 8); (ii) “Prisoner Civil
Rights Complaint Amended by Plaintiff Shawn Folta Request to Supplement Facts in
Support of Original Claim” (Doc. 9); (iii) “Declarations of Garrot Jason Deetz and Mark
Sanchez in Support of Shawn Michael Folta” (Doc. 14); and (iv) “Declaration of Facts in
Support of Claim” (Doc. 17). In his Response (Doc. 78), Plaintiff states that “Doc. # 8, 9,
14, 17 can be striken [sic] in violation of the court’s rules.” It appears that Plaintiff filed
the documents in an attempt to disclose them to Defendants during discovery. The
documents filed as Document Nos. 8, 9, 14, and 17 are deemed disclosed on Defendants;
the disclosure date of each particular document is deemed to be date the document was
filed. Defendants’ “Motion to Strike Plaintiff’s Filings (DKTS. 8, 9, 14, and 17)” (Doc.
75) is granted.
D. Plaintiff’s “Motion to Compel Production of Documents” (Doc. 76)
On December 14, 2015, Plaintiff filed a “Motion to Compel Production of
Documents” (Doc. 76). Plaintiff states that on November 10, 2015, he hand-delivered to
Defendants a request for production of documents and an interrogatory. Defendants
oppose Plaintiff’s Motion (Doc. 76), asserting that Plaintiff did not confer in good-faith
with Defendants prior to filing the Motion. Defendants do not articulate an objection to
the substance of Plaintiff’s discovery requests. The Court’s April 20, 2015 Scheduling
Order (Doc. 34 at 3) states that “the Court will NOT consider a motion regarding
discovery matters” unless two conditions have been met. First, the parties must have
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attempted to resolve the matter through personal consultation and sincere effort as

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required by Rule 7.2(j) of the Local Rules of Civil Procedure. (Id.). Second, the parties

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must have participated in a discovery conference with the Court, unless the Court finds

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that a discovery conference is not appropriate. (Id.). The Court’s Scheduling Order

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warned the parties that the Court may strike a discovery motion that is filed in

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noncompliance with the Court’s Order. (Id.).

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On January 12, 2016, Plaintiff filed a “Suppliment [sic] to reply # 8” (Doc. 82).

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Plaintiff avers that he made three good faith efforts to acquire the disciplinary histories of

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correctional officers II (“CO II”) Burke, Basso, and Schiavo.

Plaintiff asserts that

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counsel for Defendants stated that she would provide any disciplinary history for those

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individuals that pertained to violations similar to the violations alleged by Plaintiff. The

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Court finds that the information sought by Plaintiff as to CO II Burke is relevant, not

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privileged, and within the scope of discovery as set forth in Rule 26(b) of the Federal

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Rules of Civil Procedure.

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Though Plaintiff’s “Motion to Compel Production of Documents” (Doc. 76)

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technically does not comply with the requirements set forth in the Court’s Scheduling

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Order (Doc. 34), the Court finds that a discovery conference is not needed. In light of

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Plaintiff’s “Suppliment [sic] to reply #8” and Defendants’ Response, it is ordered

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granting Plaintiff’s Motion to Compel (Doc. 76) in part. By February 16, 2016, counsel

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for Defendants shall produce any and all disciplinary history pertaining to Defendant CO

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II Burke. Plaintiff’s discovery request is premature as to Defendant CO II Basso, who

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has not yet been served or appeared in this action. Plaintiff’s discovery request is also

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premature as to CO II Schiavo, who is not a party in this case. Although CO II Schiavo

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is named as an additional defendant in Plaintiff’s proposed First Amended Complaint, the

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Court has not yet screened Plaintiff’s First Amended Complaint.

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Motion to Compel (Doc. 76) is denied as to CO II Schiavo and Defendant CO II Basso.

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Accordingly, the

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E. Plaintiff’s “Motion for Default Judgement [sic] Against Dustin Burke”
(Doc. 62)

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In his Motion (Doc. 62), Plaintiff seeks default judgment against Defendant Burke.

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The “Motion for Default Judgement [sic] Against Dustin Burke” (Doc. 62) is arguably a

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dispositive motion. Accordingly, the Motion (Doc. 62) is referred to the District Court

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Judge for consideration. 1

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II. CONCLUSION

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Based on the foregoing,

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IT IS ORDERED granting Defendants’ “Motion to Extend the Time to Respond

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to Plaintiff’s Motion for Service by Publication (Doc. 61)” (Doc. 65).
IT IS FURTHER ORDERED denying Plaintiff’s “Motion for Service by
Publication as to Defendant Richard Basso” (Doc. 61).

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IT IS FURTHER ORDERED granting Defendants’ “Motion for Leave to File

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Under Seal Defendant Basso’s Home Address” (Doc. 67). Defendants shall file under

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seal the home address of Defendant Basso by January 19, 2016.

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address, the Clerk of Court shall prepare and send to the U.S. Marshal a service packet

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for service of the Summons and Complaint upon Defendant Basso.

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completing service is extended sixty days from the date this Order is filed.

Upon receipt of the

The time for

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IT IS FURTHER ORDERED granting Defendants’ “Motion to Strike Plaintiff’s

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Filings (DKTS. 8, 9, 14, and 17)” (Doc. 75). The Clerk of Court is directed to strike the

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documents docketed as Document Nos. 8, 9, 14, and 17.

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IT IS FURTHER ORDERED denying Defendants’ “Motion to Strike Plaintiff’s
First Amended Complaint (Doc. 60)” (Doc. 64).
IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s

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“Motion to Compel Production of Documents” (Doc. 76) as set forth herein.

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February 16, 2016, counsel for Defendants shall produce any and all disciplinary history

By

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Pursuant to 28 U.S.C. § 636(b)(1)(A), a magistrate judge only has the authority
to hear and determine certain “non-dispositive” pretrial motions in cases where the
parties have not consented to a magistrate judge’s exercise of jurisdiction.
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pertaining to Defendant CO II Burke.
IT IS FURTHER ORDERED that “Motion for Default Judgement [sic] Against
Dustin Burke” (Doc. 62) is referred to the District Court Judge.
Dated this 13th day of January, 2016.

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