Dennis v. Kerman et al

Filing 202

ORDER signed by Magistrate Judge Allison Claire on 04/14/22 GRANTING 190 , 191 , [ 194 Motions in Limine and to strike to the extent the court will disregard Paragraph 9 of defense counsel's amended declaration. Themotions are OTHERWISE DENIE D; GRANTING 191 , 196 Motions to seal. The Clerk of the Court is directed to seal pages 10-26 of ECF No. 186 -2; DENYING 191 , 193 Motions for sanctions ; DENYING 198 motion to vacate; GRANTING 198 , 200 requests for clarification to the extent that clarification has been provided above; and DENYING 199 motion for extension of time. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW DENNIS,

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Plaintiff,

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No. 2:16-cv-0542 JAM AC P

v.

ORDER

SCOTT KERNAN, et al.,

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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. Currently before the court are plaintiff’s various motions and objections

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regarding the amended declaration filed in support of defendants’ motion for summary judgment

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(ECF Nos. 190-97), his motion to vacate the March 8, 2022 order to correct clerical mistakes, a

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motion for an extension of time (ECF No. 199), and a motion for clarification (ECF No. 200).

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I.

Procedural Background
By order filed March 8, 2022, the undersigned denied defendants’ motions to seal

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plaintiff’s medical records, granted plaintiff’s motion for an extension of time to file an

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opposition to defendants Mays and Allison’s motion for summary judgment, and construed

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plaintiff’s cross-motion for summary judgment and opposition to the motion for summary

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judgment as an opposition only. ECF No. 177. In denying defendants’ motions to seal, the court

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gave defendants the opportunity to resubmit the documents by “publicly re-fil[ing] any
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documents for which plaintiff has waived his right to privacy through his own filing” and, if

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necessary, filing either (1) a renewed motion to seal that complied with Local Rule 141 and the

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March 8, 2022 order, and addressed only documents not previously filed in the public record; or

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(2) a stipulation from plaintiff that such documents could be publicly filed. Id. at 8-9.

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II.

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Defense Counsel’s Amended Declaration
In response to the court’s order, defendants’ counsel filed an amended declaration in

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which he stated that he had asked plaintiff to stipulate to a request to file the records under seal,

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but that plaintiff had refused and the records were being filed publicly because plaintiff was

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deemed to have waived his right to privacy in the records by pursuing this lawsuit. ECF No. 186

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at 2, ¶¶ 3-4. The declaration further stated that the attached records “relate to the treatment and

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care provide by Nurse Mays in 2015, as well as relevant prior medical records” and that the

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medical records from the Substance Abuse Treatment Facility were not being resubmitted

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because they related to the claims against defendant Phui, who has been dismissed. Id., ¶¶ 6-7.

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Counsel also added a paragraph addressing specific pages of the record and plaintiff’s alleged

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statements to his medical providers. Id. at 3, ¶ 9.

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Shortly before the amended declaration was filed, the Clerk of the Court docketed

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plaintiff’s notice that he was waiving his right to privacy in order to block any motion to seal by

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defendants Mays and Allison; this appears to have been prompted by counsel’s request that

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plaintiff stipulate to a request to seal his medical records. ECF No. 185.1 However, plaintiff has

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since filed multiple motions and objections to the amended declaration, asserting that counsel’s

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declaration misrepresents the documents attached and includes medical records irrelevant to the

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issues before the court. Plaintiff specifically objects to Paragraph 9 of the declaration and the

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records it references and requests that the court sanction defense counsel, strike the declaration,

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and seal any records from after August 2018. ECF Nos. 190-97.

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With respect to the resubmitted medical records, the March 8, 2022 order clearly specified

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defendants’ options for refiling. It is therefore baffling why, instead of requesting a stipulation to

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The court’s records indicate that the notice was docketed about two and a half hours before the
amended declaration was filed.
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file the records publicly, which it appears plaintiff would have agreed to with reasonable

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limitations, counsel instead attempted to obtain a stipulated request to file the records under seal.

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The original motion to seal was denied because a significant portion of the records defendants

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were seeking to seal had already been publicly filed, making filing under seal inappropriate. See

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ECF No. 177 at 6-7. Plaintiff’s stipulation to filing under seal would not have changed that fact

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or made sealing appropriate. It appears that counsel’s inexplicable decision to seek a stipulated

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request to seal, and subsequent public filing of plaintiff’s medical records, led to plaintiff’s recent

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flurry of filings.

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Despite defendants’ failure to follow the court’s instructions for re-submitting plaintiff’s

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medical records, the amended declaration and exhibits will be permitted in light of plaintiff’s

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representation that he would like “[a]ll records from the year 2004 through August 30th, 2018” to

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remain publicly filed. However, the court will disregard Paragraph 9 of the declaration, which

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was not included in counsel’s original declaration and appears to be a backdoor attempt to bring

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additional facts to the court’s attention outside the briefing on the motion for summary judgment.

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If defendants wanted the contents of Paragraph 9 and the documents it references considered by

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the court in deciding the motion for summary judgment, they should have been specifically cited

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in the moving papers so that plaintiff had a proper opportunity to respond.2 Furthermore, the

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undersigned will grant plaintiff’s request that any records after August 30, 2018, be sealed.

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Based on plaintiff’s description of the records he would like sealed and the court’s brief review,

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the records to be sealed appear to be located at pages 10-26 of ECF No. 186-2 (Bates stamp

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CCHCS-U000140-56).3 If plaintiff believes that there are additional records that should be

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sealed, he may notify the court and should identify the documents by either their ECF number and

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page number or Bates stamp number.4

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It does not appear that the records referenced in Paragraph 9 were cited in either defendants’
statement of facts or the motion for summary judgment. See ECF Nos. 151, 152.
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These records include the records referenced in Paragraph 9 of the amended declaration.
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Plaintiff is advised that sealing the documents does not mean that they have been removed from
the record. Sealing the documents merely removes them from public view.
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Although the court finds counsel’s conduct in resubmitting plaintiff’s medical records

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questionable, sanctions do not appear warranted at this time and plaintiff’s request for sanctions

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will be denied. However, counsel is cautioned that further failure to follow this court’s orders

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may result in sanctions.5

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III.

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Motions to Vacate, for Extension of Time, and For Clarification
Plaintiff has filed a motion to vacate the March 8, 2022 order due to a clerical error,

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oversight, or omission. ECF No. 198. This motion, along with a separately filed motion for

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clarification, also seeks clarification regarding plaintiff’s cross-motion for summary judgment and

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whether plaintiff is expected to file a separate motion for summary judgment. Id.; ECF No. 200.

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In the event he needs to file another motion for summary judgment, plaintiff requests thirty days

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to do so. ECF No. 199.

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Plaintiff’s motion to vacate the March 8, 2022 order argues that the court misunderstood

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the circumstances as a result of the delay in ruling on various motions. It is construed as a request

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for reconsideration. Local Rule 230(j) requires that a motion for reconsideration state “what new

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or different facts or circumstances are claimed to exist which did not exist or were not shown

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upon such prior motion, or what other grounds exist for the motion; and . . . why the facts or

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circumstances were not shown at the time of the prior motion.” L.R. 230(j)(3)-(4). The motion

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does not present any new or different facts or circumstances and will therefore be denied, except

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to the extent that clarification will be provided as requested.

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Plaintiff’s motion for summary judgment was not stricken simply because it exceeded the

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page limit and was not accompanied by a motion for leave to exceed the page limit. The motion

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was excessively long, addressed a number of issues beyond summary judgment, and did not

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comply with Federal Rule Civil Procedure 56(c) or Local Rule 260(a). See ECF No. 141 at 7-9

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(addressing grounds for striking plaintiff’s motion). With respect to plaintiff’s cross-motion for

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The court notes that in support of his motion in limine plaintiff has provided a copy of a letter
he received from defense counsel in which counsel states that he is representing plaintiff and
requests that plaintiff sign a medical records release. ECF No. 190 at 24. Though it appears that
this was merely a typographical error not warranting sanctions, and that plaintiff clearly
recognized that defense counsel was not representing him, the error is troubling as other, less
sophisticated prisoner-plaintiffs may not have had the same level of awareness as plaintiff.
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summary judgment and opposition to defendants’ motion for summary judgment, it is being

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considered as an opposition to defendants’ motion only. The arguments plaintiff made in support

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of his cross-motion for summary judgment will be considered as part of the opposition to

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defendants’ motion, but they will not be considered as a separate motion for summary judgment.

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Furthermore, the court did not grant plaintiff an extension of time to file a motion for summary

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judgment, as the motion he filed sought only an extension of time to file a response to defendants’

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motion for summary judgment. ECF No. 167 (motion for extension); ECF No. 177 at 5, 8 (order

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granting extension). Plaintiff has not been granted leave to file an untimely motion for summary

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judgment and should not file one absent leave of the court. To the extent the motion for an

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extension of time is intended as a motion for leave to file an untimely motion for summary

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judgment, plaintiff has not established excusable neglect and the motion will be denied. See Fed.

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R. Civ. P. 6(b)(1)(B) (deadline may be excused on motion filed after expiration of deadline up on

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showing of excusable neglect).

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions in limine and to strike (ECF No. 190, 191, 194) are GRANTED to

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the extent the court will disregard Paragraph 9 of defense counsel’s amended declaration. The

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motions are OTHERWISE DENIED.

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2. Plaintiff’s motions to seal (ECF Nos. 191, 196) are GRANTED. The Clerk of the
Court is directed to seal pages 10-26 of ECF No. 186-2.

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3. Plaintiff’s motions for sanctions (ECF No. 191, 193) are DENIED.

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4. Plaintiff’s motion to vacate (ECF No. 198) is DENIED.

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5. Plaintiff’s requests for clarification (ECF Nos. 198, 200) are GRANTED to the extent

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that clarification has been provided above.
6. Plaintiff’s motion for an extension of time (ECF No. 199) is DENIED.
DATED: April 14, 2022

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