Gause #162805 v. Indy et al

Filing 105

ORDER - IT IS ORDERED striking Plaintiff's discovery motions filed at Docs. 36 , 44 , 56 , 70 , and 89 . IT IS FURTHER ORDERED striking Plaintiff's discovery requests filed at Docs. 26 , 45 , 66 , 69 , 90 , and 92 and discover y responses filed at Docs. 20 and 46 . IT IS FURTHER ORDERED granting Plaintiff's "Motion to have Defendants provide Marshalls [sic] [with] Home Address of Defendant Dentist Doe" (Doc. 35 ). IT IS FURTHER ORDERED that by Septembe r 14, 2016, counsel for Defendant Utterbeck shall file under seal the last known address for Defendant Dentist Doe, identified by Plaintiff as Laura Hale. Upon receipt of the address for Defendant Hale, the Clerk of Court shall complete and forwa rd to the USMS a service packet for Defendant Hale. Service shall be made within sixty days of the date of this order at Government expense by the United States Marshal or his authorized representative in accordance with the Court's January 21, 2016 Order (Doc. [9)]. Failure to accomplish service within this time period may result in dismissal of Plaintiff's claims against Defendant Hale for failure to serve pursuant to Rule 4(m). IT IS FURTHER ORDERED denying Plaintiff's & quot;Motion Substituting Defendant Laura Hale cause she can not be found to be served" (Doc. 101 ). IT IS FURTHER ORDERED denying Plaintiff's "Amended Motion to Substitute Deceased Defendant Aaron East" (Doc. 67 ). IT IS FURT HER ORDERED striking Plaintiff's duplicative "Amended Motion to Substitute Deceased Defendant Aaron East" (Doc. 68 ). IT IS FURTHER ORDERED striking Plaintiff's "Addendum to First Amended Complaint" (Doc. 64 ). IT IS FURTHER ORDERED that by September 6, 2016, Defendant Utterbeck shall respond to Plaintiff's "Motion Requesting leave to make 2nd Amendment to Complaint" (Doc. 88 ). Plaintiff may file a reply within seven days after service of th e response. Plaintiff may file a reply to Defendants Ende and Rojas' Response (Doc. 104 ) no later than September 12, 2016. IT IS FURTHER ORDERED striking Plaintiff's duplicative "Motion for Access to Typewriter (Doc. 50 ). The fu lly briefed Motion (Doc. 49 ) is deemed a request for injunctive relief and is referred to the District Judge. IT IS FURTHER ORDERED directing the Clerk of Court to amend the docket to reflect that Plaintiff's "Qualified Disability for M otion for a Typewriter" (Doc. 57 ) is a reply to Defendants' Response (Doc. 51 ) to Plaintiff's "Motion for Access to Typewriter" (Doc. 49 ). IT IS FURTHER ORDERED denying Plaintiff's "Reminder to Courts, askin g to rule on older motions yet to be ruled on" (Doc. 100 ). IT IS FURTHER ORDERED denying Plaintiff's "Request to Strike Defendants response to Substitute Deceased Defendant East and responses to Addendum" (Doc. 102 ). IT IS FURTHER ORDERED striking Plaintiff's "Notices" (Docs. 71 - 74 , 78 , 80 , 91 , 95 , and 99 .) IT IS FURTHER ORDERED that Plaintiff shall not file duplicative motions in this matter. IT IS FURTHER ORDERED referring Plaintiff's fully briefed "Emergency Injunction" (Doc. 58 ) to the District Judge. Signed by Magistrate Judge Eileen S Willett on 9/1/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard LeGrand Gause,

No. CV-15-02514-JJT-ESW

Plaintiff,

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v.

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ORDER

Unknown Indy, et al.,

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Defendants.

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The Court’s rulings on a number of pending motions filed by Plaintiff are set forth

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below.
I. DISCUSSION

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A. Plaintiff’s Discovery Motions

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On May 16, 2016, the Court issued a Scheduling Order setting forth a procedure

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for resolving discovery disputes. (Doc. 19 at 3). In bold letters, the Court advised the

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parties that the Court will not consider a motion regarding discovery matters unless (i) the

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parties have attempted to resolve the matter through personal consultation and sincere

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effort as required by Local Rule of Civil Procedure 7.2(j) and (ii) the parties have

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participated in a discovery conference with the Court. The Scheduling Order set forth the

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requirements for filing a request for a discovery conference, and informed the parties that

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a request that does not comply with those requirements may be stricken. (Id.). Finally,

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the Court advised the parties in bold letters that a discovery motion that is filed in

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noncompliance with the requirements set forth in the Scheduling Order may be stricken.

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(Id.). Plaintiff has filed the following motions pertaining to discovery:
1. “Motion to have Defendants Supply Complete Medical Records per Discovery
Request” (Doc. 36); 1

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2. “Order Defendants to Produce Discovery” (Doc. 44);

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3. “Motion Ordering Defendants to Produce [Discovery]” (Doc. 56);

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4. “Motion to Order Defendants to Produce” (Doc. 70); and

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5. “Motion to Order Defendant Utterbecks Counsel to Produce Discovery” (Doc.
89).

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Plaintiff’s discovery motions do not comply with the requirements set forth in the Court’s
Scheduling Order. Accordingly, they will be stricken.
B. Plaintiff’s Filed Discovery Requests and Responses
Federal Rule of Civil Procedure 5(d) states that “the following discovery requests
and responses must not be filed until they are used in the proceeding or the court
orders filing: depositions, interrogatories, requests for documents or tangible things or
to permit entry onto land, and requests for admission.” LRCiv 5.2 provides that “[a]
‘Notice of Service’ of the disclosures and discovery requests and responses listed in Rule
5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after
service of such papers.”
Plaintiff has filed the following discovery requests in this matter:
1. “Discovery Request” (Doc. 26);

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2. “2nd Discovery Request” (Doc. 45);

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3. “Amended Discovery Request to Defendant Utterbeck” (Doc. 66);

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4. “Discovery Request (3rd to Defendants Rojas and E[nde]) (Doc. 69); 2

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5. “Third Request to Defendants Ende and Roja’s Counsel” (Doc. 90);
and

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6. “Notice to J. Scott Conlon for Discovery Production” (Doc. 92).

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Defendants filed a Response (Doc. 42) indicating that Plaintiff’s Motion (Doc.
36) was filed before the response time had expired. Plaintiff did not file a Reply.
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Defendants have filed a Notice of Service of their responses to the discovery
request. (Doc. 103).

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Plaintiff has not “used” these discovery requests in the proceeding (e.g. by relying upon

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responses in support of a motion, supporting a motion to compel, etc.). Therefore,

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Plaintiff’s filing of the actual discovery requests instead of a “Notice of Service” is in

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violation of LRCiv 5.2 and Federal Rule of Civil Procedure 5(d). The Court will direct

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the Clerk of Court to strike the filings (Docs. 26, 45, 66, 69, 90, 92).

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Plaintiff’s filing of his discovery responses at Docs. 20 and 46 violates LRCiv 5.2 and

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Federal Rule of Civil Procedure 5(d) and the responses will be stricken. The Court will

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deem Plaintiff’s discovery requests and responses to have been served on Defendants as

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of the date of filing.

Similarly,

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C. Plaintiff’s “Motion to have Defendants provide Marshalls [sic] [with]
Home Address of Defendant Dentist Doe” (Doc. 35)
and “Motion Substituting Defendant Laura Hale cause she can not be
found to be served” (Doc. 101)

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On June 14, 2016, Plaintiff filed a Motion (Doc. 35) indicating that he has

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discovered that Defendant Dentist Doe’s name is Laura Hale. Plaintiff states that he has

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been informed by Defendants that Defendant Hale is no longer employed by the Arizona

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Department of Corrections (“ADOC”), but that ADOC has her contact information.

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Plaintiff requests the Court to provide Defendant Hale’s contact information to the United

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States Marshals Service (“USMS”) to effectuate service. Defendants have not responded

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to Plaintiff’s Motion (Doc. 35), and the time to do so has passed. See LRCiv 7.2(i)

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(failing to file a responsive brief may be deemed consent to the granting of the motion).

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The Court will grant Plaintiff’s Motion (Doc. 35) and will direct counsel for Defendant

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Utterbeck to file under seal Defendant Hale’s last known address. Plaintiff’s “Motion

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Substituting Defendant Laura Hale cause she can not be found to be served” (Doc. 101)

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will be denied. 3

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Fed. R. Civ. P. 25 provides that “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper party.” Plaintiff does not
allege that Defendant Hale is deceased. Plaintiff’s request to amend the First Amended
Complaint, filed on August 17, 2016 (Doc. 88), is not yet ripe for decision.

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D. Plaintiff’s Motions for an Order Granting Plaintiff Access to a Typewriter

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On June 28, 2016, Plaintiff filed two identical documents captioned “Motion for

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Access to Typewriter” (Docs. 49, 50). Plaintiff seeks an order requiring ADOC to give

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Plaintiff access to a typewriter for the purpose of preparing documents related to this

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action. Defendant Utterbeck has filed his Response (Doc. 51) to Plaintiff’s request. On

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July 14, 2016, Plaintiff filed a “Qualified Disability for Motion for a Typewriter” (Doc.

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57). Because the filing addresses arguments made in Defendant Utterbeck’s Response

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(Doc. 51), it is deemed Plaintiff’s Reply. Plaintiff’s Motion (Doc. 49) is deemed a

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request for injunctive relief and will be referred to the District Judge for consideration. 4

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Because Doc. 50 duplicates Doc. 49, the Court will direct the Clerk of Court to

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strike Doc. 50. Plaintiff shall not file duplicative motions. The Court also will direct

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the Clerk of Court to amend the docket to reflect that Plaintiff’s “Qualified Disability for

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Motion for a Typewriter” (Doc. 57) is a reply.

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E. Plaintiff’s “Amended Motion to Substitute Deceased Defendant Aaron
East” (Docs. 67, 68)
On July 26, 2016, Defendant filed two identical documents captioned “Amended
Motion to Substitute Deceased Defendant Aaron East” (Docs. 67, 68). 5 Because Doc. 68
duplicates Doc. 67, Doc. 68 will be stricken. In his Amended Motion (Doc. 67), Plaintiff
requests that the Court “substitute Deceased Defendant Aaron East for Charles Ryan,
Director of the Arizona Dept. of Corrections.”
Federal Rule of Civil Procedure 25(a)(1), which governs the issue of substitution,
provides that:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the decedent's
successor or representative. If the motion is not made within
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A Magistrate Judge may not rule on a motion requesting injunctive relief unless
all parties have consented to the exercise of civil jurisdiction by the Magistrate Judge. 28
U.S.C. §§ 636(b)(1), (c)(1).
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The Amended Motion (Doc. 67) amends Plaintiff’s “Motion to Substitute
Deceased Defendant” (Doc. 52).

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90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.

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“It is plain

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representatives.”
1952).

. . . that Rule 25(a)(1) applies only to the substitution of legal
Mallonee

v.

Fahey, 200

F.2d

918,

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(9th

Cir.

If Rule 25(a)(1) is met, “[t]he substituted party steps into the same position as

[the] original party.” Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996).
In support of his Motion (Doc. 67), Plaintiff states that Mr. Ryan “is responsible
for establishing monitoring and enforcing overall operations, policies, and practices of
the Arizona State Prison system . . . .” (Id. at 1). Plaintiff states that Ms. Barnett is “in
charge of maintaining . . . and supervising all Medical Operations . . . .” (Id. at 2). There
is no evidence indicating that Charles Ryan and Julia Barnett are Defendant East’s
successors-in-interest or legal representatives. In addition, there is no evidence that
Plaintiff has served the Motion to Substitute on Mr. Ryan and Ms. Barnett. See Fed. R.
Civ. P. 25(a)(3) (requiring service of a motion to substitute on parties and non-parties).
The Court will deny Plaintiff’s Motion (Doc. 67) for failure to identify a proper person to
substitute and for failure to serve the Motion to Substitute on that person.
F. Plaintiff’s “Addendum to First Amended Complaint” (Doc. 64)
On July 26, 2016, Plaintiff filed an “Addendum to First Amended Complaint”
(Doc. 64) in which Plaintiff requests the Courts “to add” Charles Ryan and Julia Barnett
as defendants in this case.

Plaintiff also sets forth additional factual allegations

supporting his claims. The Court construes Plaintiff’s “Addendum” as a motion for leave
to amend the First Amended Complaint. However, because the filing is not properly
captioned as a motion, fails to comply with LRCiv 15.1, and Plaintiff has subsequently
filed a “Motion Requesting Leave to make 2nd Amendment to Complaint” (Doc. 88), the
“Addendum” (Doc. 64) will be stricken. The Court will direct Defendant Utterbeck to
respond to Plaintiff’s “Motion Requesting leave to make 2nd Amendment to complaint”

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(Doc. 88). 6
G. Plaintiff’s “Reminder to Courts, asking to rule on older motions yet to be
ruled on” (Doc. 100)
On August 24, 2016, Plaintiff filed a document requesting the court to “rule on at
least” Plaintiff’s motion for the appointment of counsel. The Court denied Plaintiff’s
“Request to be appointed counsel” (Doc. 21) on June 7, 2016. (Doc. 25). Plaintiff’s
request will therefore be denied as moot.

To the extent Plaintiff is seeking a

reconsideration of that order, the request is denied as untimely. See LRCiv 7.2(g)(2)
(“Absent good cause shown, any motion for reconsideration shall be filed no later
than fourteen (14) days after the date of the filing of the Order that is the subject of the
motion”). The Court will rule on all other motions filed in this matter in due course.

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H. Plaintiff’s “Request to Strike Defendants response to Substitute Deceased
Defendant East and responses to Addendum” (Doc. 102).

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On August 12, 2016, Defendants Ende, Rojas, and Utterbeck responded to

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Plaintiff’s “Amended Motion to Substitute Deceased Defendant Aaron East” (Doc. 67)

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and “Addendum to First Amended Complaint” (Doc. 64).

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Plaintiff requests that the Court strike those responses (Doc. 102). As parties to this

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action, Defendants are entitled to respond to the requests Plaintiff has filed in this case.

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Plaintiff’s “Request to Strike Defendants response to Substitute Deceased Defendant East

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and responses to Addendum” (Doc. 102) will be denied. See LRCiv 7.2(m) (“a motion to

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strike may be filed only if it is authorized by statute or rule . . . or if it seeks to strike any

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part of a filing or submission on the ground that it is prohibited (or not authorized) by a

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statute, rule, or court order”).

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I. Plaintiff’s Notices

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Plaintiff has filed a number of “Notices” in this matter:
1. “Notice of Telephone Conversation with Mark Brachtl” (Doc. 71),
which contains Plaintiff’s notes from a telephone conversation between

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(Docs. 83, 84, 86, 87).

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Defendants Ende and Rojas filed their Response (Doc. 104) on August 31, 2016.
Plaintiff may file a reply to the Response (Doc. 104) no later than September 12, 2016.

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Plaintiff and defense counsel.
2. “Notice to Counsel J. Scott Conlon” (Doc. 72) that “notifies” defense
counsel that Plaintiff intends to file a bar complaint against defense
counsel.
3. “Notice to Defendants Counsel J. Scott Conlon and Mark Brachtl”
(Doc. 73). This Notice is actually a letter to defense counsel regarding
Plaintiff’s “Addendum to First Amended Complaint” (Doc. 64).
4. “Notice to Defendants of Providing Wrong Discovery” (Doc. 74). This
filing provides a copy of a letter contemporaneously sent to defense
counsel.
5. “Notice to Courts of Defendants Counsel Notifying Plaintiff he is not
obligated to respond to any Correspondance [sic] Period” (Doc. 78), to
which Plaintiff attached a letter from defense counsel responding to
Plaintiff’s demand that counsel respond to Plaintiff’s letters.
6. “Notice of Formal Complaints against Defendant Ende and counsel J.
Scott Conlon” (Doc. 80). Plaintiff’s Notice states his intention to file a
complaint against Defendant Ende with the Arizona State Board of
Nurses and an Arizona Bar complaint against defense counsel.
7. “Notice of Defendant Ende retaliating due to this suit against him”
(Doc. 91). Plaintiff alleges that Defendant Ende did not submit
Plaintiff’s signed medical records release and that Defendant Ende did
not properly evaluate Plaintiff’s gait during an examination. Plaintiff
also disputes statements made in a declaration completed by Defendant
Ende.
8. “Notice to Courts and Parties of Official Complaint against Counsel for
Defendants” (Doc. 95), to which Plaintiff attached a copy of a
completed “State Bar of Arizona Charge Against a Lawyer,” dated
August 17, 2016.
9. “Notice of Grievance and Action taken by Defendant Ende by Corizon”
(Doc. 99). Attached to the Notice is a July 12, 2016 grievance filed by
Plaintiff against Defendant Ende in which Plaintiff alleges that
Defendant Ende did not adjust Plaintiff’s Tramadol and Prilosec
prescriptions or order a neurological consultation, orthopedic insoles, a
cane, and wrist splints as Defendant Ende stated he would do. (Id. at 4).
The above Notices do not contain requests for Court action. In the interest of
controlling the Court’s docket, the Court will not allow the parties to file notices that are
not required to be filed pursuant to the Federal and Local Rules of Civil Procedure (e.g. a
“Notice of Service” filed pursuant to LRCiv 5.2 of the disclosures and discovery requests
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and responses listed in Fed. R. Civ. P. 5(d)). As explained in the Court’s August 12, 2016

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Order (Doc. 82), disputes between the parties that pertain to this action are resolved by

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the Court only through the filing of a proper motion in accordance with the Federal and

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Local Rules of Civil Procedure. 7 See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d

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402, 404 (9th Cir. 2010) (“It is well established that ‘[d]istrict courts have inherent power

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to control their docket.’”) (citations omitted). The Notices listed above will be stricken.

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J. Plaintiff’s “Emergency Injunction” (Doc. 58)

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In his July 15, 2016 filing (Doc. 58), Plaintiff requests that the Court
order that Nurse Practioner [sic] Ende if he treats me, that
there is another Medical person present who will write down
and submit separately into my Medical file the Treatment
Plans Ende tells me he is going to order. Failing that, that he
be not allowed to treat me if he can’t stay proffessional [sic]
and not use his medical powers to retaliate against me for
suing him.

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Defendants Ende and Rojas have responded (Doc. 77) to Plaintiff’s filing, to
which Plaintiff has replied (Doc. 81). Plaintiff’s request for injunctive relief contained in
his July 15, 2016 filing (Doc. 58) will be referred to the District Judge.

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II. CONCLUSION
Based on the foregoing,
IT IS ORDERED striking Plaintiff’s discovery motions filed at Docs. 36, 44, 56,
70, and 89.
IT IS FURTHER ORDERED striking Plaintiff’s discovery requests filed at
Docs. 26, 45, 66, 69, 90, and 92 and discovery responses filed at Docs. 20 and 46.
IT IS FURTHER ORDERED granting Plaintiff’s “Motion to have Defendants
provide Marshalls [sic] [with] Home Address of Defendant Dentist Doe” (Doc. 35).
IT IS FURTHER ORDERED that by September 14, 2016, counsel for
Defendant Utterbeck shall file under seal the last known address for Defendant Dentist

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To reiterate, however, the Court will only entertain discovery motions if the
movant has complied with the requirements set forth in the Court’s Scheduling Order
(Doc. 19).

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Doe, identified by Plaintiff as Laura Hale.

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IT IS FURTHER ORDERED that:

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1. Upon receipt of the address for Defendant Hale, the Clerk of Court shall

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complete and forward to the USMS a service packet for Defendant Hale; and

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2. Service shall be made within sixty days of the date of this order at

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Government expense by the United States Marshal or his authorized representative

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pursuant to Federal Rule of Civil Procedure 4(d) and (e)(2) in accordance with the

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Court’s January 21, 2016 Order (Doc. 9). Failure to accomplish service within this time

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period may result in dismissal of Plaintiff’s claims against Defendant Hale for failure to

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serve pursuant to Rule 4(m).
IT IS FURTHER ORDERED denying Plaintiff’s “Motion Substituting
Defendant Laura Hale cause she can not be found to be served” (Doc. 101) .
IT IS FURTHER ORDERED denying Plaintiff’s “Amended Motion to
Substitute Deceased Defendant Aaron East” (Doc. 67).
IT IS FURTHER ORDERED striking Plaintiff’s duplicative “Amended Motion
to Substitute Deceased Defendant Aaron East” (Doc. 68).
IT IS FURTHER ORDERED striking Plaintiff’s “Addendum to First Amended
Complaint” (Doc. 64).

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IT IS FURTHER ORDERED that by September 6, 2016, Defendant Utterbeck

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shall respond to Plaintiff’s “Motion Requesting leave to make 2nd Amendment to

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Complaint” (Doc. 88). Plaintiff may file a reply within seven days after service of the

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response. Plaintiff may file a reply to Defendants Ende and Rojas’ Response (Doc. 104)

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no later than September 12, 2016.

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IT IS FURTHER ORDERED striking Plaintiff’s duplicative “Motion for Access

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to Typewriter (Doc. 50). The fully briefed Motion (Doc. 49) is deemed a request for

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injunctive relief and is referred to the District Judge.

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IT IS FURTHER ORDERED directing the Clerk of Court to amend the docket

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to reflect that Plaintiff’s “Qualified Disability for Motion for a Typewriter” (Doc. 57) is a

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reply to Defendants’ Response (Doc. 51) to Plaintiff’s “Motion for Access to Typewriter”

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(Doc. 49).

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IT IS FURTHER ORDERED denying Plaintiff’s “Reminder to Courts, asking to
rule on older motions yet to be ruled on” (Doc. 100).

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IT IS FURTHER ORDERED denying Plaintiff’s “Request to Strike Defendants

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response to Substitute Deceased Defendant East and responses to Addendum” (Doc.

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102).

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IT IS FURTHER ORDERED striking Plaintiff’s “Notices” (Docs. 71-74, 78, 80,
91, 95, and 99.)
IT IS FURTHER ORDERED that Plaintiff shall not file duplicative motions in
this matter.
IT IS FURTHER ORDERED referring Plaintiff’s fully briefed “Emergency
Injunction” (Doc. 58) to the District Judge.
Dated this 1st day of September, 2016.

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