Espinoza v. Irby et al

Filing 127

ORDER the Motion to Set Aside (Doc. 121 ) is DENIED. The Motion to Set Aside (Doc. 122 ) is DENIED. The Motion to Set Aside (Doc. 125 ) is DENIED. The Motion for Extension of Time (Doc. 126 ) is DENIED. Signed by Senior Judge David C Bury on 9/27/2019. (See attached Order for complete details) (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adrien Joshua Espinoza,
Plaintiff,

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ORDER

v.

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No. CV-17-00236-TUC-DCB

Phillip Irby, et al.,

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Defendants.

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On July 25, 2019, the Court granted summary judgment for Defendants and gave

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Plaintiff notice that it would dismiss unknown and unserved Defendants unless he could

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show cause why they should not be dismissed. The Court noted that these Defendants had

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been dismissed in its original screening Order, and Plaintiff was allowed to include them

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in a First Amended Complaint upon his assertion that he would provide the identities of

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the unknown Defendants through discovery. In other words, from the inception of the case,

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Plaintiff understood the need to discover the identities of the unknown Defendants during

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discovery. He did not do this.

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The Plaintiff was given 10 days to show good cause as to why he failed to discover

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the identities of the unknown Defendants. Instead of showing cause, Plaintiff filed a

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Motion for Extension of Time, wherein he argued he didn’t have access to his legal files

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and was busy working on other cases. The Court noted that it considered the original

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screening Order as notice to Plaintiff that he had to discover and name the Defendants or

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they would be subject to dismissal. The Court also ordered that in the event his access to

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his legal records was restricted, he could reference any document contained in his legal

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files that would support his claim of good cause for not dismissing the unknown

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Defendants. The Court granted the Plaintiff a 14-day extension of time to show good cause.

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The Court ordered that “NO FURTHER EXTENSIONS OF TIME WOULD BE

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GRANTED.” (Order (Doc. 116).)

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On August 22, 2019, the Plaintiff filed another Motion for Extension of Time to File

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Notice of Good Cause. On August 27, 2019, the Court denied the motion and ordered the

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Clerk of the Court to enter Judgment for Defendants. (Order (Doc. 118).)

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On August 30, 2019, Plaintiff filed a Motion to Set Aside the Order and Judgment.

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He also filed a Notice of Compliance with the Order to Show Cause. The Court notes that

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this compliance comes approximately eight days after his assertion that he needed a further

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extension of time. He submits that he submitted inmate letters to Trinity Central Office

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and Legal Services in attempts to obtain the names of the unidentified/unserved defendants.

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He also specifically wrote an inmate letter to Division Director Carson McWilliams asking

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for the names and sent at least one inmate letter to Director Charles Ryan. “He even asked

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defense counsel for assistance obtaining the names.” (Notice (Doc. 123) at 2.) He does not

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attach copies of any of the alleged inmate letters. He concludes, “[t]he only way Espinoza

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could have, or can, obtain the identities of the unserved Defendants is if the Court either

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appointed him counsel for that purpose or compelled the ADC and Trinity to give them

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up.” Id.

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Defendants have responded that they have made a comprehensive search of their

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records of all correspondence from the Plaintiff, all inmate letters and responses obtained

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by the ADC, all discovery, and even all potentially relevant pleadings, and have not found

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any request from the Plaintiff regarding the identities of the unnamed defendants.

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(Response (Doc. 124) at 2 n.1.) This is not, however, why the Court finds the Plaintiff’s

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Notice of Compliance is too little too late. His Notice makes it clear that he knew he could

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file a Motion to Compel. The record in the case makes it equally clear that he did not

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hesitate to file Motions to Compel, quite effectively, in the case. For example, he obtained

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an order from this Court compelling the Defendants to facilitate his legal box exchanges,

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(Order (Doc. 41), and to file proof of access by Plaintiff to his requested legal materials,

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(Order (Doc. 55). The Court even ordered “the Warden in charge of Eyman-Browning [to]

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ensure that for a minimum of three hours per week while on mental health watch, the

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Plaintiff ha[d] access to pen and paper, and his legal materials for the purpose of Plaintiff’s

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preparation of his Response to the Motion for Summary Judgment pending in this case.”

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(Order (Doc. 66).) On this record, the Court finds that the Plaintiff has failed to show good

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cause for identifying the unknown Defendants during discovery.

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Accordingly,

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IT IS ORDERED that the Motion to Set Aside (Doc. 121) is DENIED.

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IT IS FURTHER ORDERED that the Motion to Set Aside (Doc. 122) is DENIED.

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IT IS FURTHER ORDERED that the Motion to Set Aside (Doc. 125) is DENIED.

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IT IS FURTHER ORDERED that the Motion for Extension of Time (Doc. 126)

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is DENIED.
Dated this 27th day of September, 2019.

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