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Dennis E. Abbott v. Shell Fisher

December 21, 2012

DENNIS E. ABBOTT,
PLAINTIFF,
v.
SHELL FISHER, BRENT REINKE, JOHANNA SMITH, KAREN BARRETT, JAY NIELSEN, ROBIN SANDY, AND J.R. VANTASSEL JR., DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court in this prisoner civil rights case are the following motions: (1) Plaintiff's Motion for Preliminary Injunction (TRO) (Dkt. 18); (2) Defendants' Motion for Extension of Time to File Motion to Dismiss (Dkt. 21); (3) Defendants' Motion to Dismiss (Dkt. 23); (4) Plaintiff's Objection to Defendants' Motion to Dismiss and Motion to Strike Thereof (Dkt. 28); (5) Plaintiff's Motion to Strike Defendants' Reply Memorandum in Support of Motion to Dismiss (Dkt. 30); (6) Defendants' Motion to Strike Plaintiff's Motion to Strike Defendants' Reply Memorandum in Support of Motion to Dismiss and the Supporting Affidavit of Dennis E. Abbott (Dkt. 31); (7) Plaintiff's Motion to Commence Pleadings (Dkt. 32); and (8) Plaintiff's Motion to Compel Discovery (Dkt. 33). Having reviewed the written arguments of the parties, as well as the record in this case, the Court has determined that oral argument is unnecessary, and therefore enters the following Order.

BACKGROUND

Plaintiff is an inmate in the custody of the Idaho Department of Correction (IDOC) and is currently incarcerated at the Idaho State Correctional Institution (ISCI). On November 17, 2011, Plaintiff filed a Complaint alleging that defendants IDOC, Corizon Medical Services, Idaho Department of Health & Welfare, the Board of Corrections and several prison officials have failed to provide him with adequate mental health treatment since his re-incarceration in May 2011. (Dkt. 3.)

In the Complaint, Plaintiff alleges that he has suffered from schizophrenia and schizoaffective disorder for most of his life, and as a result, has taken psychotropic medications since age 12. (Id. at p.3.) Plaintiff further alleges that he has been in the custody of IDOC for over 25 years and although he was recently paroled, he was arrested in May 2011 for a parole violation and taken back into custody. (Id. at pp.3-4.) Plaintiff contends that since his re-incarceration in May 2011, he has been denied proper psychological and psychiatric care for his mental health conditions. (Id. at pp.4-8.)

On April 23, 2012, the Court entered its Initial Review Order and found that Plaintiff could proceed against only Defendants Shell Fisher and Johanna Smith on an Eighth Amendment claim for failure to provide any mental health treatment since May 2011. (Dkt. 9, p. 7.) The Court also permitted Plaintiff to submit a motion to amend the Complaint if he had further allegations of participation or policy-based claims against the private entities. (Id. at 4.) Thereafter, Plaintiff filed a Motion to Amend Complaint on May 31, 2012 (Dkt. 15), which the Court granted and thereby permitted Plaintiff to also proceed against Defendant Karen Barrett (in addition to Defendants Fisher and Smith), but not against any of the remaining Defendants. (Dkt. 19.)*fn1

Plaintiff then filed a Motion for Preliminary Injunction (TRO) on June 28, 2012, "to ensure that he receives proper medical care" and requested that he be moved out of the general population at ISCI and assigned to the prison's behavioral health unit "or other mental health facility comparable to Plaintiff's mental health care and needs." (Dkt. 18-1.) Defendants filed a response arguing that Plaintiff fails to meet the standards for injunctive relief. (Dkt. 20.)

By the terms of this Court's Order dated July 3, 2012 (Dkt. 19), Defendants had until August 3, 2012, to file an answer or motion to dismiss. On August 3, 2012, Defendants filed a Motion for Extension of Time to File Motion to Dismiss and requested a one week extension in which to file their Motion to Dismiss. (Dkt. 21.) On August 7, 2012, Defendants filed their Motion to Dismiss on the basis that Plaintiff has failed to exhaust his administrative remedies. (Dkt. 23.) Plaintiff filed an Objection to Defendants' Motion to Dismiss and Motion to Strike Thereof (Dkts. 27, 28) and argues that the Motion to Dismiss should be stricken because it is without merit and in bad faith.*fn2

On September 20, 2012, Plaintiff filed another Motion to Strike (along with a supporting Affidavit and exhibits), this time seeking to strike Defendants' Reply Memorandum in Support of Motion to Dismiss. (Dkt. 30.) Plaintiff asserts that Defendants should have sought leave of the Court to file the Reply Memorandum (which they did not do), and that the Reply Memorandum contains misleading facts and information. In response, Defendants filed a Motion to Strike Plaintiff's Motion to Strike Defendants' Reply Memorandum in Support of Motion to Dismiss and the Supporting Affidavit of Dennis E. Abbott, contending that Plaintiff's Motion and the Supporting Affidavit is an attempt to file a pleading not allowed by the Federal and Local Rules. (Dkt. 31.)

Finally, on November 29, 2012, Plaintiff filed a Motion to Commence Pleadings (Dkt. 32), and a Motion to Compel Discovery. (Dkt. 33.) Defendants filed a response to the Motion to Compel Discovery, and argue that discovery in this case is stayed pending the Court's ruling on Defendants' Motion to Dismiss. (Dkt. 34.)

Because Defendants' Motion to Dismiss asserts an affirmative defense that could result in this action being dismissed in its entirety, the Court will first address the Motions that must be determined preliminary to the Motion to Dismiss, then the Motion to Dismiss, and then the remaining pending Motions.

REVIEW OF PENDING MOTIONS

1. Defendants' Motion for Extension of Time to File Motion to Dismiss (Dkt.

21); Plaintiff's Objection to Defendants' Motion to Dismiss and Motion to Strike Thereof (Dkt. 28); Plaintiff's Motion to Strike Defendants' Reply Memorandum in Support of Motion to Dismiss (Dkt. 30); Defendants' Motion to Strike Plaintiff's Motion to Strike Defendants' Reply Memorandum in Support of Motion to Dismiss and the Supporting Affidavit of Dennis E. Abbott (Dkt. 31)

Prior to addressing Defendants' Motion to Dismiss, the Court must first resolve several procedural Motions related to the Motion to Dismiss.

A. Defendants' Motion for Extension of Time to File Motion to Dismiss

On August 3, 2012, Defendants timely filed a Motion for Extension of Time to File Motion to Dismiss. (Dkt. 21.) Good cause appearing, the Court will grant ...


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