Rodriguez # 140309 v. Ryan et al

Filing 45

ORDER - IT IS ORDERED that the Amended Report and Recommendation of th eMagistrate Judge, (Doc. 27 ), is ACCEPTED, the Report and Recommendation lodged at (Doc. 22 ) is denied as moot, and Plaintiff's motion to supplement is GRANTED. In addi tion, Plaintiff's motions for court intervention, (Docs. 29 , 30 ), are DENIED. Defendants must answer Plaintiff's claims in the FAC as set forth in this Order. Counts III, VI, VII, and VIII of the FAC are dismissed. (See document for further details). Signed by Judge Douglas L Rayes on 3/21/16. (LAD)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Frankie Lee Rodriguez,
Plaintiff,

10
11

ORDER

v.

12

No. CV-15-01766-PHX-DLR

Charles L. Ryan, et al.,

13

Defendants.

14
15
16

Pending before the Court is the Report and Recommendation (“R&R”), (Doc. 22)

17

and Amended Report and Recommendation of Magistrate Judge Deborah Fine, (Doc. 2),

18

regarding statutory screening of Plaintiff’s First Amended Complaint (“FAC”), (Doc.

19

14), and Motion to Supplement, (Doc. 15). Plaintiff has also filed two motions for court

20

intervention, (Docs. 29, 30), requesting supplies and documents from Defendants.

21

Plaintiff is proceeding in forma pauperis and is currently incarcerated.

22

recommends that the Court order Defendant Ryan to answer Counts I and II of the FAC;

23

Defendants Ryan and Barrios answer Count IV of the FAC; Defendants Ryan, Fizer, and

24

Miser answer Count V of the FAC; and that Defendants Moody and Barrios answer

25

Count IX of the FAC. (Doc. 27 at 9-10.) It is recommended that the remaining counts of

26

the FAC, Counts III, VI, VII, and VIII, be dismissed for failure to state a claim. (Id. at 6,

27

8.) It is further recommended that the court grant Plaintiff’s motion to supplement. (Id.

28

at 10.) The Magistrate Judge advised the parties that they had fourteen days to file

The R&R

1

objections to the R&R. (Id. at 10 (citing Fed. R. Civ. P. 72(b).) Plaintiff timely filed

2

objections on February 16, 2016. (Doc. 34.)

3

The Court has considered the objections and has reviewed the R&R de novo. See

4

Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

5

determination of those portions of the Report and Recommendation to which specific

6

objections are made). The Court agrees with the Magistrate Judge’s determinations,

7

accepts the recommended decision within the meaning of Rule 72(b), and overrules

8

Plaintiff’s objections.

9

accept, reject, or modify, in whole or in part, the findings or recommendations made by

10

See 28 U.S.C. § 636(b)(1) (stating that the district court “may

the magistrate”).

11

In addition, the Court denies Plaintiff’s motions for court intervention. Plaintiff

12

requests that the Court order Defendants to provide him with a full copy of two notice of

13

electronic filings (NEFs) for two documents on the Court’s docket, Docs. 23 and 24.

14

Plaintiff claims he has only received the first page. Plaintiff also requests that the Court

15

order Defendants to provide him with paper, pencils, envelopes, and stamps. Both

16

motions are denied.

17

Defendants submitted an affidavit from the warden of Plaintiff’s facility attesting

18

to the fact that the ADOC follows a policy written and distributed by the Court, which

19

does not require providing prisoners with a full printout of the NEFs if they are filed by

20

the prisoner. (Doc. 40-1, ¶ 7.) Full printouts are required for documents filed by defense

21

counsel. (Id., ¶ 8.) The NEFs requested by Plaintiff are documents he prepared and filed,

22

and thus need not be provided by Defendants. In addition, Defendants provided an

23

affidavit from the prison librarian attesting that Plaintiff’s supply needs have been met.

24

(Doc. 37-1.) Plaintiff does not dispute the affidavit, and thus the motion is denied as

25

moot.

26

IT IS ORDERED that the Amended Report and Recommendation of the

27

Magistrate Judge, (Doc. 27), is ACCEPTED, the Report and Recommendation lodged at

28

(Doc. 22) is denied as moot, and Plaintiff’s motion to supplement is GRANTED. In

-2-

1

addition, Plaintiff’s motions for court intervention, (Docs. 29, 30), are DENIED.

2

Defendants must answer Plaintiff’s claims in the FAC as set forth in this Order. Counts

3

III, VI, VII, and VIII of the FAC are dismissed.

4

Dated this 21st day of March, 2016.

5
6
7
8
9

Douglas L. Rayes
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-