Johnson v. Sandy et al

Filing 136

ORDER signed by Magistrate Judge Allison Claire on 04/23/15 ORDERING that plaintiff's 135 Motion for Summary Judgment is DENIED as untimely and construed as a supplemental opposition to the defendants' motions for summary judgment. Cle rk to update the docket accordingly; defendants have 14 days to file and serve their replies in support of their motions for summary judgment; plaintiff and defendants Austin, Cobian, DeStefano, Hutcheson, Lavagnino, Lavergne, Shadday, and Cruzen have 14 days to file amended declarations signed as true under penalty of perjury. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH JOHNSON,

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No. 2:12-cv-02922 JAM AC P

Plaintiff,

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v.

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E. SANDY, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. On September 15, 2014, the court re-set the dispositive motion deadline to

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January 23, 2015. ECF No. 61 at 23. Three sets of separately represented defendants filed

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motions for summary judgment1 on January 23, 2015. ECF Nos. 105, 106, 124. Plaintiff did not

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file a summary judgment motion by the deadline. However, on April 13, 2015,2 the same day he

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filed his opposition to the defendants’ motions for summary judgment, plaintiff filed his own

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motion for summary judgment. ECF No. 135. Plaintiff’s motion comes nearly three months after

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the deadline set by the court and is not accompanied by a motion for leave to file an untimely

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motion or any explanation for the excessive delay. Plaintiff’s motion for summary judgment will

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Defendants Hutcheson, DeStefano, and Lahey also moved to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). ECF No. 106.
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The prison mailbox rule was used in determining the filing date. See Houston v. Lack, 487 U.S.
266, 276 (1988).
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therefore be denied as untimely. However, the court will construe plaintiff’s motion as a

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supplemental opposition to the defendants’ summary judgment motions and the court will permit

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the defendants additional time to file their replies so that they can address both the opposition

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(ECF No. 134) and supplemental opposition (ECF No. 135).

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It has also come to the court’s attention that the declarations of defendants Austin (ECF

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No. 111), Cobian (ECF No. 114), DeStefano (ECF No. 115), Hutcheson (ECF No. 117),

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Lavagnino (ECF No. 119), Lavergne (ECF No. 120), Shadday (ECF No. 122), and Cruzen (ECF

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No. 129) are neither sworn nor signed under penalty of perjury. Plaintiff’s declaration in support

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of his motion for summary for summary judgment, now identified as a supplemental opposition,

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is also unsworn and not signed under penalty of perjury. ECF No. 135 at 13-33. Unsworn

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declarations not signed under penalty of perjury do not constitute admissible evidence properly

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considered in ruling on a motion for summary judgment. See 28 U.S.C. § 1746 (unsworn

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declarations must state that the matters asserted by the declarant are “true under penalty of

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perjury”). The court will give defendants and plaintiff an opportunity to remedy their defective

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declarations. The parties may re-submit their declarations, amended to reflect that they are signed

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under penalty of perjury. It will not be necessary for the parties to resubmit attachments to any of

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the declarations. Failure to submit an amended declaration signed under penalty of perjury will

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result in the original declaration being disregarded.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 135) is denied as untimely and

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construed as a supplemental opposition to the defendants’ motions for summary judgment. The

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Clerk of the Court is directed to update the docket accordingly.

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2. Defendants shall have fourteen days from the date this order is filed to file and serve
their replies in support of their motions for summary-judgment.

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3. Plaintiff and defendants Austin, Cobian, DeStefano, Hutcheson, Lavagnino, Lavergne,

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Shadday, and Cruzen shall have fourteen days from the filing of this order to file amended

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declarations signed as true under penalty of perjury. It is not necessary to resubmit any

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attachments to the declarations. Failure to comply with this order will result in the original

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declaration being disregarded.

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DATED: April 23, 2015

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