Toney v. Berkebile et al

Filing 158

ORDER denying 151 Motion for Partial Summary Judgment. Granting in part and denying in part 154 Motion for Extension of Time, by Judge Raymond P. Moore on 4/30/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-00111-RM-BNB
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A.W. HALL,
A.W. KUTA,
S.I.S. REDDEN,
R. MARTINEZ,
MS. RANGEL,
MS. SUDLOW, and
MR. MADISON,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
THIS MATTER is before the Court on Plaintiff’s Motion for a 14-Days Extension of
Time (ECF No. 154) and Motion for Partial Summary Judgment (ECF No. 151). The Court has
reviewed the two motions, Defendants’ responses, the Court file, and the applicable rules and
law, and finds that replies are not necessarily to assist in the determination of the motions. See
D.C.COLO.LCivR 7.1(d) (judicial official not precluded from ruling on motion any time after it
is filed). Upon consideration of the papers and applicable rules and law, the Motion for
Extension of Time is granted in part and denied in part, and the Motion for Partial Summary
Judgment is denied as stated herein.
On April 2, 2013, Magistrate Judge Boyd N. Boland issued an Order addressing various
motions filed by Plaintiff. (ECF No. 146.)

On April 3, 2014, Magistrate Judge Boyd N. Boland issued a Recommendation that
Defendants’ Motion for Judgment on the Pleadings be granted and Plaintiffs’ Amended
Complaint be dismissed in its entirety. (ECF No. 150.) The parties were advised they had 14
days to serve and file specific, written objections to the Recommendation.
On April 11, 2014, Plaintiff filed the Motion for Partial Summary Judgment, stating that
a statement of facts and other documents (collectively, “Brief”) will be filed within 14 days. No
reason or legal authority was cited to support the filing of a motion and separate brief 14 days
later.
On April 24, 2014, Plaintiff filed the Motion for Extension of Time, requesting a 14-day
extension in which to file: (1) an objection to the Order; (2) an objection to the
Recommendation; and (3) a Brief. Defendants did not oppose an extension of time for Plaintiff
to file an objection to the Recommendation but did oppose an extension of time to file his Brief.
Concomitantly, Defendants opposed the Motion for Partial Summary Judgment on the grounds
that it is untimely. Defendants did not address Plaintiff’s request for an extension to file an
objection to the Order.
Rule 6(b), Fed.R.Civ.P., provides the Court may, for good cause, extend time for a party
to act if the request is made before the original time, or its extension, expires. Where a request is
made after the time for acting has expired, the party must show excusable neglect. Id. Here,
Plaintiff cites to events which occurred on or after February 28, 2014 to support his requests,
including the notification of family deaths which occurred five months previously, this and
another pending matter, and problems with his out and incoming mail. Although the stated
reasons for the belated requested extensions are thin, the Court finds them sufficient under these
circumstances as to the filing of objections to the Recommendation and Order.

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The cited reasons, however, are insufficient to support allowing the Motion for Summary
Judgment and granting the related extension of time to file a Brief. The Scheduling Order (ECF
No. 55) set the dispositive motions deadline as February 24, 2014. The Motion for Partial
Summary Judgment, however, was filed April 11, 2014, without any factual or legal basis and
without requesting an extension of time. As such, it is untimely. Plaintiff’s Motion for
Extension of Time to file a Brief does not address the belated Motion for Partial Summary
Judgment. Further, even if the motion for extension could be liberally construed to cover not
only the Brief but also the Motion for Partial Summary Judgment, the reasons cited therein are
insufficient as dispositive motions were due before the events cited as the bases for the requested
extension. Plaintiff relies on Fed.R.Civ.P. 56, but that rule states that a party may file a motion
for summary judgment at any time until 30 days after the close of all discovery, “unless a
different time is set by local rule or the court orders otherwise.” (Emphasis supplied.)1
Accordingly, it is therefore
ORDERED that Plaintiff’s Motion for A 14-Days Extension of Time (ECF No. 154) is
GRANTED in part and DENIED in part as follows:
1. Plaintiff’s request is granted as to the time to file objections to the Order (ECF No.
146) and Recommendation (ECF No. 150) and those objections are due on or before
May 8, 2014; and
2. Plaintiff’s request is denied as to the time to file any brief, statement of facts,
affidavits or otherwise in support of his Motion for Partial Summary Judgment and, to
the extent also requested, to file his Motion for Partial Summary Judgment; and

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Plaintiff also did not show the Motion for Partial Summary Judgment was, or the Brief would be, filed within 30
days of the close of discovery.

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FURTHER ORDERED that Plaintiff’s Motion for Partial Summary Judgment (ECF No.
151) is DENIED as untimely.
DATED this 30th day of April, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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