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)

Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 1 of 4
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD V. ROOD,

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No. 2:13-CV-0478-JAM-DMC-P

Plaintiff,
v.

ORDER

KHIN WIN, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C.

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§ 1983. Before the Court is Defendants’ motion for summary judgment. ECF No. 77. Defendants

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contend that Plaintiff has failed to file an opposition to the motion. ECF No. 88. Plaintiff has filed

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a declaration indicating that he did file an opposition. ECF No. 84. It appears to the Court that

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Plaintiff did file an improperly served opposition. See ECF No. 82. The Court construes the

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declaration as a motion for additional time to oppose Defendants’ motion. The Court will grant the

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motion as construed.

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The procedural history regarding Defendants’ motion and Plaintiff’s opposition is

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somewhat confusing. Defendants filed their motion on December 9, 2020. ECF No. 77. Plaintiff

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requested an extension of time to file an opposition on December 15, 2020. ECF No. 79 at 2.

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Plaintiff stated that, Kern Valley State Prison (KVSP), where Plaintiff is incarcerated, was on

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quarantine due to COVID-19. Id. at 1. Plaintiff thus did not have access to a law library for research
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Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 2 of 4
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and could not attend to his case or make copies. Id. The Court granted Plaintiff a ninety-day

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extension of time on January 22, 2021. ECF No. 81. Plaintiff did not file an opposition thereafter.

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On April 30, 2021, Defendants submitted a notice that Plaintiff had failed to oppose

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their motion for summary judgment. ECF No. 83. They asked the Court to grant the motion. Id. A

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few days later, on May 4, 2021, Plaintiff filed a declaration explaining his supposed failure to file

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an opposition. ECF No. 84. Plaintiff received Defendants’ motion on December 14, 2020. Id. at 1.

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He filed the motion for an extension in the light of COVID-19-related lockdowns. Id. When the

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Court did not grant the extension right away, Plaintiff contends that he panicked and, in December

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2020, filed an opposition. See id. at 1–2. Due to the inaccessibility of KVSP’s law library, however,

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he was unable to make copies. Id. at 2. Plaintiff apparently requested that the Court make and send

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copies of the opposition when he filed it. See id.

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Plaintiff asks that the Court deny Defendants’ request to rule on and grant the motion

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for summary judgment. Id. He also asks that the Court give him time to request copies of the

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prison’s mail log so that he can prove that he mailed an opposition to the Court. Id. at 2–3. In the

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alternative, Plaintiff requests a polygraph examination. Id. at 3.

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No obvious opposition is before the Court. Plaintiff, however, did make two

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submissions that are marked as declarations. ECF Nos. 80, 82. The first submission is declaration

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in support of the motion for enlargement of time. ECF No. 80. The second submission, mailed on

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January 14, 2021, and docketed on January 19, 2021, contains Plaintiff’s opposition. ECF No. 82.

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The first page of the opposition is indeed labeled with “declaration.” Id. at 1. Given the

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“declaration” label, the Clerk’s office appears to have inadvertently marked the opposition as a

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declaration in support of the extension motion. See id. The opposition was thus not separately and

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distinctly docketed.

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The declaration attached to Plaintiff’s oppositions confirms several points from

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Plaintiff’s most recent declaration. Plaintiff declared that he had yet to hear back on the status of

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his motion for an extension of time and was unable to make copies due to restricted law library

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access. Id. at 1–2. Plaintiff requested that the Court make copies on his behalf and serve the

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opposition on each of the Defendants. Id. at 2.
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Case 2:13-cv-00478-JAM-DMC Document 85 Filed 08/13/21 Page 3 of 4
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Plaintiff, as his copy request implies, never served the opposition on Defendants.

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See id. at 2, 165. Plaintiff’s request that the Court serve his opposition on Defendants was not an

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option available to Plaintiff. Under the Eastern District of California’s Local Rules, litigants who

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are not registered for the CM/ECF system—for example, prisoners—must serve documents

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conventionally in paper. L.R. 135(b). “Conventional Service" is service as permitted under Federal

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Rule of Civil Procedure 5(b)(2); for example, service by handing a paper to someone. Id.; Fed. R.

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Civ. P. 5(b)(2)(A)–(D). Unless a party explicitly waives services, copies of every document

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submitted to the Court must be served on all parties. Fed. R. Civ. P. 5(a); L.R. 135(d).

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Plaintiff’s submission of his opposition to the Court with a prayer that the Court

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serve it on his behalf did not comply with the rules governing service. Defendants were never

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served. Considering both the mistaken docketing of the opposition and Defendants’ notice stating

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they never received an opposition, the Court accepts that Defendants were (and are) unaware of

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any opposition.

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The Plaintiff’s status as a pro se prisoner, the liberality with which the Court must

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construe prisoners’ submissions, and the enormous burden that COVID-19 has imposed both

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generally and upon inmates particularly, all counsel in favor of leniency. The Court is inclined to

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facilitate full and fair consideration of each case before it. Short-circuiting this case by precluding

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Plaintiff from filing a properly served opposition inhibits that goal. If Plaintiff has valid grounds to

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oppose the motion and there is indeed a genuine dispute of material fact requiring resolution at trial,

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then the Court believes a further opportunity to oppose the motion is appropriate. The Court

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concludes that Plaintiff shall have a final opportunity to oppose the summary judgment.

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Accordingly, IT IS HEREBEY ORDERED that:

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1.

The Court construes Plaintiff’s declaration (ECF No. 84) as a motion for

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extension of time to oppose Defendants’ motion for summary judgment. So construed, Plaintiff’s

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motion is GRANTED.

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2.

Plaintiff shall file an opposition to Defendants’ motion for summary

judgment within sixty (60) days of the date of this order.
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3.
all Defendants.

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Plaintiff shall comply with the rules for service and serve the opposition on

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No further extensions shall be granted absent a compelling showing of good

cause.

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Dated: August 13, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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