Rood v. Swarthout, et al.

Filing 85

ORDER signed by Magistrate Judge Dennis M. Cota on 8/13/2021 CONSTRUING 84 Declaration as a Motion for Extension of Time; GRANTING 84 Motion for Extension of Time; and ORDERING Plaintiff to file an opposition to 77 Motion for Summary Judgment within 60 days of the date of this order.(Henshaw, R)

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Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 1 of 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD V. ROOD, 12 13 14 15 No. 2:13-CV-0478-JAM-DMC-P Plaintiff, v. ORDER KHIN WIN, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. 18 § 1983. Before the Court is Defendants’ motion for summary judgment. ECF No. 77. Defendants 19 contend that Plaintiff has failed to file an opposition to the motion. ECF No. 88. Plaintiff has filed 20 a declaration indicating that he did file an opposition. ECF No. 84. It appears to the Court that 21 Plaintiff did file an improperly served opposition. See ECF No. 82. The Court construes the 22 declaration as a motion for additional time to oppose Defendants’ motion. The Court will grant the 23 motion as construed. 24 The procedural history regarding Defendants’ motion and Plaintiff’s opposition is 25 somewhat confusing. Defendants filed their motion on December 9, 2020. ECF No. 77. Plaintiff 26 requested an extension of time to file an opposition on December 15, 2020. ECF No. 79 at 2. 27 Plaintiff stated that, Kern Valley State Prison (KVSP), where Plaintiff is incarcerated, was on 28 quarantine due to COVID-19. Id. at 1. Plaintiff thus did not have access to a law library for research 1 Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 2 of 4 1 and could not attend to his case or make copies. Id. The Court granted Plaintiff a ninety-day 2 extension of time on January 22, 2021. ECF No. 81. Plaintiff did not file an opposition thereafter. 3 On April 30, 2021, Defendants submitted a notice that Plaintiff had failed to oppose 4 their motion for summary judgment. ECF No. 83. They asked the Court to grant the motion. Id. A 5 few days later, on May 4, 2021, Plaintiff filed a declaration explaining his supposed failure to file 6 an opposition. ECF No. 84. Plaintiff received Defendants’ motion on December 14, 2020. Id. at 1. 7 He filed the motion for an extension in the light of COVID-19-related lockdowns. Id. When the 8 Court did not grant the extension right away, Plaintiff contends that he panicked and, in December 9 2020, filed an opposition. See id. at 1–2. Due to the inaccessibility of KVSP’s law library, however, 10 he was unable to make copies. Id. at 2. Plaintiff apparently requested that the Court make and send 11 copies of the opposition when he filed it. See id. 12 Plaintiff asks that the Court deny Defendants’ request to rule on and grant the motion 13 for summary judgment. Id. He also asks that the Court give him time to request copies of the 14 prison’s mail log so that he can prove that he mailed an opposition to the Court. Id. at 2–3. In the 15 alternative, Plaintiff requests a polygraph examination. Id. at 3. 16 No obvious opposition is before the Court. Plaintiff, however, did make two 17 submissions that are marked as declarations. ECF Nos. 80, 82. The first submission is declaration 18 in support of the motion for enlargement of time. ECF No. 80. The second submission, mailed on 19 January 14, 2021, and docketed on January 19, 2021, contains Plaintiff’s opposition. ECF No. 82. 20 The first page of the opposition is indeed labeled with “declaration.” Id. at 1. Given the 21 “declaration” label, the Clerk’s office appears to have inadvertently marked the opposition as a 22 declaration in support of the extension motion. See id. The opposition was thus not separately and 23 distinctly docketed. 24 The declaration attached to Plaintiff’s oppositions confirms several points from 25 Plaintiff’s most recent declaration. Plaintiff declared that he had yet to hear back on the status of 26 his motion for an extension of time and was unable to make copies due to restricted law library 27 access. Id. at 1–2. Plaintiff requested that the Court make copies on his behalf and serve the 28 opposition on each of the Defendants. Id. at 2. 2 Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 3 of 4 1 Plaintiff, as his copy request implies, never served the opposition on Defendants. 2 See id. at 2, 165. Plaintiff’s request that the Court serve his opposition on Defendants was not an 3 option available to Plaintiff. Under the Eastern District of California’s Local Rules, litigants who 4 are not registered for the CM/ECF system—for example, prisoners—must serve documents 5 conventionally in paper. L.R. 135(b). “Conventional Service" is service as permitted under Federal 6 Rule of Civil Procedure 5(b)(2); for example, service by handing a paper to someone. Id.; Fed. R. 7 Civ. P. 5(b)(2)(A)–(D). Unless a party explicitly waives services, copies of every document 8 submitted to the Court must be served on all parties. Fed. R. Civ. P. 5(a); L.R. 135(d). 9 Plaintiff’s submission of his opposition to the Court with a prayer that the Court 10 serve it on his behalf did not comply with the rules governing service. Defendants were never 11 served. Considering both the mistaken docketing of the opposition and Defendants’ notice stating 12 they never received an opposition, the Court accepts that Defendants were (and are) unaware of 13 any opposition. 14 The Plaintiff’s status as a pro se prisoner, the liberality with which the Court must 15 construe prisoners’ submissions, and the enormous burden that COVID-19 has imposed both 16 generally and upon inmates particularly, all counsel in favor of leniency. The Court is inclined to 17 facilitate full and fair consideration of each case before it. Short-circuiting this case by precluding 18 Plaintiff from filing a properly served opposition inhibits that goal. If Plaintiff has valid grounds to 19 oppose the motion and there is indeed a genuine dispute of material fact requiring resolution at trial, 20 then the Court believes a further opportunity to oppose the motion is appropriate. The Court 21 concludes that Plaintiff shall have a final opportunity to oppose the summary judgment. 22 23 Accordingly, IT IS HEREBEY ORDERED that: 24 1. The Court construes Plaintiff’s declaration (ECF No. 84) as a motion for 25 extension of time to oppose Defendants’ motion for summary judgment. So construed, Plaintiff’s 26 motion is GRANTED. 27 28 2. Plaintiff shall file an opposition to Defendants’ motion for summary judgment within sixty (60) days of the date of this order. 3 Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 4 of 4 1 2 3. all Defendants. 3 4 Plaintiff shall comply with the rules for service and serve the opposition on 4. No further extensions shall be granted absent a compelling showing of good cause. 5 6 Dated: August 13, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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