Alarcon v. Davey et al

Filing 41

ORDER DENYING 36 Plaintiff's Motion to Resubmit Dated Opposition to Defendants' Motion for Summary Judgment and Verification of Exhibits signed by Magistrate Judge Jennifer L. Thurston on 12/4/2018. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LOUIS A. ALARCON,
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
TO RESUBMIT DATED OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND VERIFICATION OF
EXHIBITS

Defendants.

12

(Doc. 36)

v.

13
14

1:16-cv-01461-JLT-(PC)

D. DAVEY, et al.,

15
16
17

On November 30, 2018, Plaintiff filed a motion seeking leave to resubmit his opposition

18

to Defendants’ motion for summary judgment with a dated signature page and verified exhibits.

19

(Doc. 36.) Though Plaintiff did not date and sign the portion of his opposition titled as his

20

“notice of motion and motion opposing defendants’ motion for summary judgment,” (see Doc.

21

34, pp. 1-2), Plaintiff signed both his memorandum of points and authorities in opposition, (id., at

22

pp. 3-25), and his opposition to Defendants’ statement of undisputed facts, (id., at pp. 26-32).

23

Further, Plaintiff’s proof of service of his opposition is dated and contains a verification. (Id., p.

24

484.)

25

The Court cannot consider unsigned documents, but Plaintiff signed the documents

26

necessary and material to his opposition to Defendants’ motion for summary judgment.

27

Plaintiff’s “notice of motion and motion” in opposition is not required and is superfluous to his

28
1

1

opposition. Finally, the date Plaintiff signed his opposing documents is of no consequence; rather

2

the date that he gave his opposition to prison staff for mailing, as reflected on his proof or service,

3
4
5
6
7
8
9

which will dictate whether his opposition was timely filed. See Douglas v. Noelle, 567 F.3d
1103, 1107 (9th Cir. 2009) quoting Houston v. Lack , 487 U.S. 266, 270 (1988) (“notice is
deemed filed on the date the prisoner ‘delivered the notice to prison authorities for forwarding to
the [d]istrict [c]ourt’”).
Accordingly, Plaintiff’s “Motion For Leave to Resubmit Dated Summary Judgment
Motion and Verification of Exhibits,” filed on November 30, 2018 (Doc. 36), is DENIED.
IT IS SO ORDERED.

10
Dated:
11

December 4, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2