Castonguay v. Newton et al

Filing 93

MEMORANDUM AND ORDER - Defendants' Motion for Leave to File an Amended Motion for Summary Judgment (Filing No. 90 ) is granted. Defendants shall have until May 17, 2011, to file their amended motion for summary judgment and brief in support. Th ereafter, briefing will continue as required by the Federal Rules of Civil Procedure and the court's local rules. Defendants' original Motion for Summary Judgment (Filing No. 64 ) and Plaintiff's Motion to Deny Summary Judgment (Fili ng No. 73 ) are denied as moot. Plaintiff's Motion In Production of Documents (Filing No. 83 ), construed as a Motion for Copies, is denied. Defendants' Motion to Strike (Filing No. 88 ) is denied. Defendants may respond to filings 80 through 85 in a brief in support of an amended motion for summary judgment. Ordered by Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL CASTONGUAY,
Plaintiff,
v.
JEFFREY NEWTON, Director,
EARNEST BLACK, Sgt., MARK
FOXALL, Associate Director, and
UNKNOWN DEFENDANTS,
Defendants.

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CASE NO. 8:09CV413

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion for Leave to File an Amended
Motion for Summary Judgment. (Filing No. 90.) Also pending is Plaintiff’s Motion In
Production of Documents (Filing No. 83) and Defendants’ Motion to Strike (Filing No. 88).
The court will address each motion in turn.
I. Motion for Leave to File an Amended Motion for Summary Judgment
On April 12, 2011, Defendants filed a Motion for Leave to File an Amended Motion
for Summary Judgment. (Filing No. 88.) In this Motion, Defendants state that counsel for
Defendants discovered new documents showing that Plaintiff may have exhausted his
administrative remedies. (Id. at CM/ECF p. 2.) Defendants ask the court to permit them
to withdraw their arguments relating to exhaustion of administrative remedies and provide
them with leave to file an Amended Motion for Summary Judgment and Brief in Support.
(Id. at CM/ECF p. 3.) Plaintiff does not object to Defendants’ Motion. (Filing No. 92.)
The court has carefully reviewed Defendants’ Motion for Leave to File an Amended
Motion for Summary Judgment and finds that it is not submitted in bad faith or for delay.
In addition, Plaintiff does not object to the Motion. Accordingly, the court will grant
Defendants’ Motion for Leave to File an Amended Motion for Summary Judgment.
Defendants shall file their amended motion for summary judgment and brief in support by
May 17, 2011. Thereafter, briefing will continue as required by the Federal Rules of Civil

Procedure and the court’s local rules. In considering any amended motion for summary
judgment, or response thereto, the court will disregard Defendants’ Motion for Summary
Judgment (Filing No. 64), Defendants’ Brief in Support (Filing No. 65), Plaintiff’s Motion
to Deny Summary Judgment (Filing No. 73), Plaintiff’s Briefs in Support (Filing Nos 70, 71
and 72), Defendants’ Reply Brief (Filing No. 78), and Plaintiff’s Reply Brief (Filing No. 80).
However, to the extent that the parities wish to cite to previously-filed indices of evidence,
they may do so.
II. Motion In Production of Documents
On March 16, 2011, Plaintiff filed a Motion In Production of Documents. (Filing No.
83.) In his Motion, Plaintiff asks for copies of “all evidence” in this case because he was
unable to make copies during his incarceration at “DCC.” (Id.)
Accordingly, the court liberally construes Plaintiff’s Motion In Production of
Documents as a Motion for Copies. Plaintiff does not have the right to receive copies of
documents without payment, even if the court granted him leave to proceed in forma
pauperis. 28 U.S.C. § 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y.
1976) (“The generally recognized rule is that a court may not authorize the commitment of
federal funds to underwrite the necessary expenditures of an indigent civil litigant’s action.”)
(citing Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973), other citations omitted). If Plaintiff
requires copies of court documents, he should contact the Clerk of the court to determine
the proper method of requesting and paying for copies. Plaintiff’s Motion In Production of
Documents, construed as a Motion for Copies, is denied.
III. Motion to Strike
On March 21, 2011, Defendants filed a Motion to Strike. (Filing No. 88.) In this
Motion, Defendants ask the court to strike filings 80 through 85, or in the alternative, to
provide leave to respond pursuant to NECivR 7.0.1(c). (Id. at CM/ECF p. 1.) As discussed

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above, the court has granted Defendants leave to file an Amended Motion for Summary
Judgment, and denied Plaintiff’s Motion In Production of Documents. To the extent that
Defendants need to respond to filings 80 through 85, they may do so in a brief in support
of an amended motion for summary judgment.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion for Leave to File an Amended Motion for Summary
Judgment (Filing No. 90) is granted;

2.

Defendants shall have until May 17, 2011, to file their amended motion for
summary judgment and brief in support. Thereafter, briefing will continue as
required by the Federal Rules of Civil Procedure and the court’s local rules.
In considering any amended motion for summary judgment, or response
thereto, the court will disregard Defendants’ Motion for Summary Judgment
(Filing No. 64), Defendants’ Brief in Support (Filing No. 65), Plaintiff’s Motion
to Deny Summary Judgment (Filing No. 73), Plaintiff’s Briefs in Support
(Filing Nos 70, 71 and 72), Defendants’ Reply Brief (Filing No. 78), and
Plaintiff’s Reply Brief (Filing No. 80). However, to the extent that the parities
wish to cite to previously-filed indices of evidence, they may do so;

3.

Defendants’ original Motion for Summary Judgment (Filing No. 64) and
Plaintiff’s Motion to Deny Summary Judgment (Filing No. 73) are denied as
moot;

4.

Plaintiff’s Motion In Production of Documents (Filing No. 83), construed as
a Motion for Copies, is denied; and

5.

Defendants’ Motion to Strike (Filing No. 88) is denied. Defendants may
respond to filings 80 through 85 in a brief in support of an amended motion
for summary judgment.

DATED this 2nd day of May, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

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