Machlan v. Neven et al

Filing 73

MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Valerie P. Cooke, on 2/12/2015, denying Defendants' 71 Motion to Strike. (Copies have been distributed pursuant to the NEF - KR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

ROBERT MACHLAN,

3:13-cv-00337-MMD-VPC

Plaintiff,
MINUTES OF THE COURT
v.
DWIGHT NEVEN, et al.,
Defendants.

PRESENT:

February 12, 2015

THE HONORABLE VALERIE P. COOKE, U.S. MAGISTRATE JUDGE

DEPUTY CLERK:

LISA MANN

REPORTER: NONE APPEARING

COUNSEL FOR PLAINTIFF(S): NONE APPEARING
COUNSEL FOR DEFENDANT(S): NONE APPEARING
MINUTE ORDER IN CHAMBERS:
Before the court is defendants’ motion to strike (#71) plaintiff’s opposition (#70) to
defendants’ motion for summary judgment (#45).
On January 16, 2015, the court held an emergency hearing to resolve chronic delay and
dilatory motion practice in this case. To varying extents, the delay owed to defendants’ failure to
ensure that plaintiff had access to their summary judgment exhibits, and plaintiff’s failure to act
diligently and respect filing deadlines. Compounding the issue was the NDOC’s repeated
transfer of plaintiff from one prison to another during the briefing process.
At the hearing, the court ordered that plaintiff be provided one last opportunity to oppose
defendants’ motion on the merits. The court set a deadline of January 28, 2015. (#69.) The
court also allocated to defendants two weeks in which to reply. The court contemplated that
defendants would utilize this time to prepare and submit substantive arguments on the merits. In
the alternative, the court asked counsel to file notice if and when defendants decided not to reply.
Despite the court’s extraordinary leniency, the Clerk’s Office did not receive and file
plaintiff’s opposition until sometime on January 30, one day and several hours beyond the
deadline. As such, the court appreciates defendants’ frustration and the basis for the instant

motion. However, in light of the circumstances in this case, the court will not strike or disregard
the opposition simply because it was late.
In addition, defendants likely err in concluding that plaintiff dishonored the January 28
deadline. As counsel is aware, the NDOC has not yet provided inmates at WSCC with the
ability to e-file; therefore, plaintiff files his papers by providing them to prison staff. They,
rather than he, must take necessary steps to deliver legal papers to the court. Plaintiff’s
opposition is dated January 25, 2015. The date suggests that plaintiff delivered his opposition to
the proper prison authorities well in advance of the deadline. Within the Ninth Circuit, nothing
more is required for his filing to be timely. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th
Cir. 2011) (adopting the “prison mailbox rule” in inmate § 1983 actions, and thereby requiring
only that the inmate deliver his papers to prison authorities by the filing deadline to timely
comply with the same).
Finally, as counsel opted to use the twelve intervening days to prepare a three-page
procedural motion, rather than a substantive reply to plaintiff’s opposition, it cannot be said that
the short delay prejudiced defendants in any way.
The motion is DENIED.
IT IS SO ORDERED.
LANCE S. WILSON, CLERK
By:

/s/
Deputy Clerk