Espinoza v. Irby et al

Filing 58

ORDER that the Emergency Motion for Extension of Time (Doc. 57 ) is GRANTED for 30 days to: February 4, 2019. Signed by Senior Judge David C Bury on 1/3/2019. (see Order for additional details) (SIB)

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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 December 18, 2018, this Court was persuaded that an extension of time was

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necessary to allow Plaintiff access to his legal materials to prepare a Response to

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Defendants’ Motion for Summary Judgment.

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requests for exchanges of legal materials dating from November 14, 2018, which he alleged

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had failed to secure the materials requested: (1) box labeled 5 and 6; (2) boxes labeled 1;

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box 10, and boxes 3 and 4. The Court ordered Defendants to file a Notice of proof that

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Plaintiff had been given access to these boxes and proof that the Plaintiff had received a

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copy of the Defendants’ Motion for Summary Judgment. The Court granted a 30 day

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extension of time for filing the Response from the filing date for the Notice of Access, and

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the Court ordered that no further extensions of time would be granted.

Plaintiff presented documentation of

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On December 21, 2018, the Defendant filed a Notice of Access reflecting that the

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Plaintiff had not received access to his legal boxes nor had he received the copy of the

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Motion for Summary Judgment that Defendants allegedly mailed to him on December 7,

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2018. Pursuant to the Notice of Access, on December 20, 2018, Plaintiff was given access

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to box 10, the two boxes labeled 1, and the one box labeled 5 and 6. On December 21,

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2018, the Plaintiff gave back box 5 (renumbered box 5 and 6), and box 10. He checked

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out boxes 3 and 4. The Defendants electronically transmitted another copy of the Motion

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for Summary Judgment and related documents electronically via a secure file share service

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to ADWarden Renault which were hand-delivered and signed for by the Plaintiff on

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December 21, 2018.

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On December 26, 2018, an Emergency Motion, drafted on December 23, 2018, was

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filed by the Plaintiff asking to extend the time to file the Response because he had been

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severely assaulted on December 21 and 23, 2018, leaving him in extreme pain with his

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writing arm injured. The proximity in the timing of these assaults is highly suggestive of

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retaliatory animus. The Court orders the Defendants to secure any camera footage of the

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cell pod recording the alleged assaults. Likewise, Defendants shall inquire into whether

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any medical records exist for the Plaintiff from December 21 to date, and if so, make the

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necessary arrangements for Plaintiff to obtain them to be filed with the Court. In the event

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there are no such medical records, Plaintiff shall be afforded an immediate medical

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examination to document the injuries he alleges resulted from the alleged December 21

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and 23 assaults so that he may file it with the Court. The Court shall afford another 30 day

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extension of time for this record to be prepared and filed with the Court and for the Plaintiff

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to prepare and file the Response to the Motion for Summary Judgment.

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Accordingly,

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IT IS ORDERED that the Emergency Motion for Extension of Time (Doc. 57) is

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GRANTED for 30 days to: February 4, 2019.

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IT IS FURTHER ORDERED that immediately the Defendants shall secure any

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camera footage recordings of Plaintiff’s assaults on December 21, and 23, and shall initiate

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the processes necessary for the Plaintiff to obtain any existing medical records or to obtain

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a medical examination, as described above. The Defendants shall file a Notice with the

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Court when the Plaintiff has in his possession his medical records.

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IT IS FURTHER ORDERED that within 7 days of the filing date of the Notice,

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the Plaintiff shall file his medical records to support his allegations made here that he was

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assaulted on December 21 and 23, and the extent of his injuries due to the alleged assault.

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IT IS FURTHER ORDERED that NO FURTHER EXTENSIONS OF TIME

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SHALL BE GRANTED unless medically necessary. The reaffirms its warning to both

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parties in this case that failure to comply with directives from this Court may result in

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sanctions.

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Dated this 3rd day of January, 2019.

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