Vartanpour v. Neven et al

Filing 69

ORDER that 61 Motion for Summary Judgment is DENIED. Signed by Judge Jennifer A. Dorsey on 6/13/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Rafik Vartanpour,

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Plaintiff

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D.W. Neven, et al.,

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Order Denying Plaintiff’s Motion for
Summary Judgment

v.

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2:15-cv-00951-JAD-CWH

Defendants

[ECF No. 61]

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Nevada state-prison inmate Rafik Vartanpour sues multiple prison officials and unnamed

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prison mailroom staff members under 42 U.S.C. § 1983 for illegally opening and mishandling his

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legal mail outside of his presence.1 Vartanpour now moves for summary judgment.2 I deny his

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motion because it was submitted more than 60 days after the dispositive-motion deadline and

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because Vartanpour acknowledges that there are genuine issues of material fact regarding

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whether his mail was—and was properly identified as—legal mail.

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Background

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Vartanpour sues defendants Warden D.W. Neven, Associate Warden Hawell, Caseworker

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Calderwood, Sgt. Joseph (mailroom), and three John Doe mailroom staff members3 under a First

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Amendment theory for repeatedly mishandling mail from the Consulate General Netherlands, an

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embassy he claims is acting as his legal representative.4 He alleges that this mail is legal mail

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ECF No. 1.

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ECF No. 61.

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Neven, Hawell, and Calderwood have been served. Plaintiff’s deadline to serve Sgt. Joseph
and the John Doe mailroom staff members has been extended. See ECF No. 67.
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ECF No. 1-1 at 3–4.

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that prison staff illegally opened, scanned, copied, and read.5

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The scheduling order in this case set January 10, 2017, as the deadline to file motions for

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summary judgment.6 Defendants filed their motion for summary judgment on January 10, 2017,7

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Vartanpour responded,8 defendants replied,9 and Vartanpour filed an unauthorized surreply10 that

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I struck before denying defendants’ summary-judgment motion.11 Vartanpour filed the instant

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motion for summary judgment on March 23, 2017.12

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Discussion
A.

Vartanpour’s summary-judgment motion is untimely.

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Vartanpour’s motion for summary judgment was filed on March 23, 2017, more than 60

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days after the January 10, 2017, deadline for dispositive motions. Vartanpour claims that his

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summary-judgment motion was timely filed, however, because it was originally dispatched on

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January 7, 2017,13 and because he has “no control or say as [a] pro se [prisoner] . . . for securing

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Id.

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ECF No. 33 at 3.

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ECF No. 52.

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ECF No. 55.

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ECF No. 56.

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ECF No. 57.

ECF No. 60. The stricken document is entitled “Plaintiff’s reply in support of his motion for
summary judgment,” but I determined that it was a surreply because no motion for summary
judgment by Vartanpour was received by that time. Because Vartanpour did not move for leave
of court to file his surreply, I granted defendants’ motion to strike it.
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ECF No. 61.

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ECF No. 61-2 at 1. Vartanpour states that his “first [summary-judgment motion] was send
[sic] at [sic] 7th [of] January 2017.” However, he also states that he filed his motion “before
10/1/2017.” Considering that: (1) ECF No. 61-2 is dated March 23, 2017, a date well before
October 1, 2017; (2) the due date for dispositive motions was January 10, 2017; (3) most
countries follow the date format of day/month/year; and (4) I am required to liberally construe
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[that] his ‘legal mail’” is sent out after it is delivered to prison administration.14 Vartanpour

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asserts that his only proof that he timely dispatched his motion is a “brass slip,” which is “no

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where [sic] to be found.”15

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While some courts have held that a motion is “filed” when it is given to a prison authority

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to be placed in the outgoing mail, “a large body of lower court authority has rejected the general

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argument [known as the mailbox rule] that a [pro se prisoner’s outgoing mail] is filed at the

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moment it is placed in the mail addressed to the clerk of the court—this on the ground that

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receipt by the district court is required.”16 Though I am sympathetic that pro se prisoners lack

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some control over their outgoing mail, in this instance, I am not persuaded to depart from the

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general rule and apply the mailbox rule. Vartanpour offers no prison mail-log entry or any other

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evidence to corroborate that he gave his summary-judgment motion to prison authorities on

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January 7, 2017, as alleged. So, I decline to apply the mailbox rule in this case.

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Vartanpour did not file a motion to extend the dispositive-motion deadline so that I can

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consider his belated motion.17 Instead, he argues in his reply in support of his motion for

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summary judgment that he was not aware of the need to file a motion to extend the dispositive-

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motion deadline because he did not know that his motion was not received by the court.18 I find

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this argument unpersuasive. Ten days before Vartanpour filed his instant summary-judgment

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pro se motions (see Bernhardt v. L.A. Cnty., 339 F.3d 920, 925 (9th Cir. 2003)), I base my
analysis on Vartanpour’s statement that he dispatched his summary-judgment motion on January
7, 2017.
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ECF No. 64 at 1.

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Id.

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Houston v. Lack, 487 U.S. 266, 274 (1988).

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See Fed. R. Civ. P. 6(b)(1)(B) (allowing the court to extend the time for filing a motion
beyond the deadline “on motion made after the time has expired if the party failed to act because
of excusable neglect”). See also LR IA 6-1 (detailing the requirements for “a motion or
stipulation to extend time . . .”).
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ECF No. 64 at 1–2.
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motion, I stated in my order denying defendants’ motion for summary judgment and striking

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plaintiff’s surreply that “Vartanpour did not file a motion for summary judgment, and the

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deadline for doing so has expired.”19 Vartanpour was thus on notice that his motion had not been

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received and that the deadline for filing it had passed. While the court must construe pro se

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motions and pleadings liberally in the pro se litigant’s favor, “pro se litigants are bound by the

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rules of procedure.”20 Because Vartanpour did not comply with the rules to extend the deadline,

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his motion for summary judgment is untimely, and I could deny it on that basis alone.

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B.

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Genuine issues of material fact preclude summary judgment.
Even if I overlook the untimeliness of Vartanpour’s motion, I would deny it on its merits

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because genuine issues of material fact remain. Perhaps misunderstanding the role of and

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requirements for the summary-judgment procedure, Vartanpour offers a “Statement of Disputed

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Facts” with a “list of genuine . . . material fact[s] that require the denial of defendant’s [sic]

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[already-denied summary-judgment] motion.”21 In it, he oppugns as “false” sworn statements by

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defendants about the mail labeling, and he offers a version of events that contradicts the one

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proffered by the defendants.22 He further argues that his motion should be granted because “there

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is a genuine issue of material facts [sic] against defendant [sic] that they violated” his First

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Amendment rights.23

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Because the plaintiff bears the burden of proof at trial, before the court can grant
Vartanpour’s motion for summary judgment, he “must establish ‘beyond controversy every

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See ECF No. 60 at 3 n.10.

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Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

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See ECF No. 61 at 6.

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Id. at 10–11.

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ECF No. 64 at 2 (emphasis added); see also ECF No. 61 at 16 (“there is a genuine issue of
material facts to each point. . .”).
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element of’” his claim.24 The existence of genuine, disputed facts on any element requires the

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court to deny the motion and let the jury decide which version of the facts to believe.25 I already

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denied summary judgment in defendants’ favor because I found that “whether communications

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from the consulate constitute legal mail and . . . were properly marked to notify prison staff that

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the communications were protected is at least genuinely disputed.”26 Vartanpour’s filings and

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repeated representations that this case is rife with genuine and disputed issues only bolster that

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conclusion. Accordingly, I deny Vartanpour’s motion for summary judgment because it is late

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and because genuine issues of material fact preclude the entry of summary judgment at this time.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Rafik Vartanpour’s motion for
summary judgment [ECF No. 61] is DENIED.

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DATED: July 13, 2017.
_______________________________
__________________
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Jennifer A. Dorsey
r Dorsey
or
United St t Di t i t J d
States District Judge

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S. California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (quoting
William W. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial §
14:124–127 (2001)).

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Id.

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ECF No. 60 at 4.
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