Epps v. Grannis et al

Filing 124

ORDER: (1) Denying Defendants' 112 First Ex Parte Application to Correct the Court's Clerical Error; and (2) Denying Defendants' 117 Second Ex Parte Application to Correct the Court's Clerical Error. Signed by Judge Roger T. Benitez on 7/23/2013. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OMAR ERNEST EPPS,

Case No. 10cv1949 BEN (KSC)
ORDER:

Plaintiff,

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(1) DENYING DEFENDANTS’
FIRST EX PARTE
APPLICATION TO
CORRECT THE COURT’S
CLERICAL ERROR; and

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vs.

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(2) DENYING DEFENDANTS’
SECOND EX PARTE
APPLICATION TO
CORRECT THE COURT’S
CLERICAL ERROR

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N. GRANNIS, et al.,
Defendants.

[Dkt. Nos. 112 & 117]

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I. INTRODUCTION

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Defendants have filed two ex parte applications to correct clerical errors.

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Plaintiff has yet to file a response to either. The requests are denied.
II. THE DISCOVERY ORDER

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On June 27, 2013, this Court resolved Plaintiff’s motion to compel discovery.

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Correctional Defendants Janda, Greenwood, and Pickett were ordered to respond to

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Plaintiff’s individual interrogatories. Defendants Janda, Greenwood, and Pickett are

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named in the Complaint and executed waivers of service of summons. Nevertheless,

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they assert that they are no longer parties. Since non-parties need not answer

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interrogatories propounded under FRCP 33, they argue that the Court erred in

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ordering Janda, Greenwood, and Pickett to answer Plaintiff’s interrogatories. The

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question, then, is whether Janda, Greenwood, or Pickett have been dismissed as

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defendants.

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Defendants argue that the only remaining RLUIPA claims are found in Counts

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2, 5, and 6. They correctly point out that Plaintiff has not alleged the personal

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involvement of Janda, Greenwood, or Pickett in the acts constituting the alleged

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RLUIPA violations in Counts 2, 5, or 6. But a plaintiff is not required to do so when

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seeking injunctive relief against official capacity1 defendants. The Ninth Circuit

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recently pointed out (in another prisoner RLUIPA action), “[a] plaintiff seeking

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injunctive relief against the State is not required to allege a named official’s personal

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involvement in the acts or omissions constituting the alleged constitutional

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violation.” Hartmann v. Calif. Dep’t of Corrections, 707 F.3d 1114, 1127 (9th Cir.

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2013). Instead, a plaintiff need only name an official who can appropriately respond

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if injunctive relief is granted. Id. (“Rather, a plaintiff need only identify the law or

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policy challenged as a constitutional violation and name the official within the entity

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who can appropriately respond to injunctive relief.”) (emphasis added).

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Janda, Greenwood, and Pickett are sued in their official capacities and are

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alleged to be in supervisory positions at the Calipatria State Prison. There has been

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no evidence at this point showing that they are not officials “within the entity who

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can appropriately respond to injunctive relief.” Perhaps that evidentiary showing

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“An official-capacity suit ‘represents only another way of pleading an action
against an entity of which an officer is an agent.’ ‘Suits against state officials in
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Hartmann v. Calif. Dep’t of Corrections, 707 F.3d 1114, 1127 (9th Cir. 2013)
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will be made in a motion for summary judgement or perhaps at trial. At present,

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however, neither Janda, Greenwood, nor Pickett (in their official capacities) have

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been dismissed from the case.

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Therefore, the first motion to correct the discovery order is denied.

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III. THE SUMMARY JUDGMENT FILING DATE

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In its Order dated June 27, 2013, this Court advanced the date for filing

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summary judgment motions to Friday, August 2, 2013.2 This is a change, as the

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cutoff date for all pretrial motions had been Monday, August 19, 2013. The

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deadline for other pretrial motions remains Monday, August 19, 2013.

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In their second ex parte request to correct, Defendants in essence seek more
time for filing summary judgment motions. The request is denied.

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IV. SERVICE OF FUTURE PLEADINGS

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Defendants have now filed three ex parte motions due to time constraints.

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While pursuing relief on shortened time frames is understandable, it may lead to

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Plaintiff not being heard. Counsel for Defendants explain that they have only

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Plaintiff’s mailing address and that as a result, they have only been able to give him

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notice via U.S. Mail.3 Plaintiff is a state prisoner. Counsel represents the warden

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and other supervisory officials at the prison where Plaintiff is incarcerated.

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To alleviate future delays in serving papers on Plaintiff, Counsel for

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Defendants are hereby directed to use a method to expedite service of pleadings and

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Defendants suggest that the Court must have meant September 2, 2013 for
summary judgment motions. It did not. Moreover, September 2, 2013 is a federal
23 holiday. The Court did mistakenly refer to the new filing date as Monday, August 5,
2013, instead of the correct date of Friday, August 2, 2013 in its recent Order of July
24 15th, denying Defendants’ ex parte application to continue time for completing
discovery or filing dispositive motions.
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“My firm cannot feasibly give plaintiff direct notice of this ex parte
application since he did not provide a telephone or facsimile number. We sent this
application to Plaintiff via mail on July 16, 2013.” See Declaration of Gabrielle De
27 Santis Nield, Esq., in support of Ex Parte Application (signed July 16, 2013).
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other papers to Plaintiff, whether by use of overnight delivery services or facsimile

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service or electronic delivery services or some other means through the Calipatria

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State Prison litigation coordinator.

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IT IS SO ORDERED.

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DATED: July 23, 2013

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Hon. Roger T. Benitez
United States District Judge

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