Brown v. Voorhies et al

Filing 290

ORDER denying 286 Plaintiff's Motion to Defer Consideration of Defendant's Motion for Summary Judgment; granting 288 Plaintiff's Motion for Extension of Time to File Response re 275 MOTION for Summary Judgment ; Response now due by 2/13/2012; Reply now due by 3/1/2012; Non-oral hearing on said motion rescheduled for 3/2/2012. Signed by Judge Gregory L Frost on 1/19/12. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN S. BROWN,
Plaintiff,
Case No. 07-cv-13
Judge Gregory L. Frost

v.
WARDEN VOORHIES, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on two motions filed by Plaintiff Steven S. Brown
regarding his opposition to the Motion For Summary Judgment (ECF No. 275) filed by
Defendants. On January 17, 2012, Plaintiff moved this Court for an order deferring
consideration of the Defendants’ Motion pursuant to Fed. R. Civ. P. 56(d). (ECF No. 286.) The
following day, Plaintiff also filed a Motion to Expand Time to Respond to Summary Judgment.
(ECF No. 288.)
For the reasons that follow, this Court DENIES the motion to defer consideration of
Defendants’ Motion for Summary Judgment under Rule 56(d), but GRANTS the Plaintiff’s
motion for an extension of time in which to respond to the Motion.
I. Background Relevant to Plaintiff’s Motions
Defendants filed their Motion for Summary Judgment on November 30, 2011. (ECF No.
275.)

On Plaintiff’s Motion, this Court extended the time for Plaintiff’s response to the

summary judgment motion, setting a deadline of January 16, 2012 for Plaintiff’s opposition.
(ECF No. 279.) Expressing concern that prison regulations may have prohibited the Court (and

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Plaintiff) from having access to relevant evidence in this case, this Court also ordered
Defendants and non-party Ohio Department of Rehabilitation and Correction (ODRC) to file
with the Court certain DVDs that were returned to the prison from Plaintiff’s previous legal
counsel and further prohibited the destruction of Plaintiff’s legal documents pending disposition
of this action (ECF No. 283.)
In accordance with the Court’s Order, the ODRC provided the Court with 43 DVD/CD
disks and five VHS videotapes. The Court distributed copies of these DVDs/CDs and videotapes
to Plaintiff on January 18, 2012. (ECF No. 289.) In addition, in his motion for an extension of
time, Plaintiff acknowledges receipt of “2 tubs of his legal papers” from the Warden on January
12, 2012 (albeit in disarray). (ECF No. 288, at 1-2.)
II. Discussion
Fed. R. Civ. P. 56(d) allows the Court to defer considering a motion for summary
judgment when the nonmoving party has shown by affidavit that he “cannot present facts
essential to justify [his] opposition.” Plaintiff has invoked Rule 56(d), citing the Defendants’
purported failure to comply with this Court’s Order to return his “legal papers” to him. (ECF
No. 286, at 4.) Plaintiff’s affidavit to support his Rule 56(d) motion states that the prison had not
returned “legal papers” that were necessary for him to provide evidence in opposition to the
Defendants’ Motion for Summary Judgment. (Id. at 7.)
The Court declines to defer consideration of the Defendants’ Motion for Summary
Judgment. Since Plaintiff executed his affidavit in support of his Rule 56(d) motion,
circumstances surrounding Plaintiff’s “legal papers” appear to have changed. This Court notes
that Defendants did, in fact, comply with this Court’s Order (ECF No. 283) to file with the Court

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certain DVDs that were among Plaintiff’s legal documents returned to the prison by Plaintiff’s
prior legal counsel. ODRC provided 43 DVDs/CDs and five VHS videotapes in response to the
Court’s Order. The Court sent copies of these materials to Plaintiff on January 18, 2012 and
retained the originals it received from the ODRC. (ECF No. 289.) This Court has no facts
before it to suggest that Defendants and OCRC have failed to fully comply with its Order.
In addition, Plaintiff says in his Motion To Expand Time that the Warden has returned to
him two tubs of legal papers. (ECF No. 288 at 1, 3.) This Court infers that Plaintiff received
these materials after Plaintiff executed his Rule 56(d) affidavit in support of his motion to defer
consideration of Defendants’ summary-judgment motion.1 With these materials in his
possession, as well as the DVDs/CDs and videotapes the Court has transmitted to Plaintiff, this
Court cannot say that Plaintiff is unable to present facts to rebut the Defendants’ Motion for
Summary Judgment. Accordingly, this Court DENIES Plaintiff’s Rule 56(d) motion for the
Court to defer consideration of the Defendants’ Motion.
The Plaintiff’s Motion to Expand Time (ECF No. 288), however, is well-taken. Because
the DVDs/CDs and VHS videotapes requested by Plaintiff were not transmitted to him until
January 18, 2012, coupled with Plaintiff’s contention that he received additional relevant “legal
papers” from the Warden on January 12, 2012, this Court finds sufficient cause to justify
granting Plaintiff an extension of time in which to respond to the Defendants’ Motion for
Summary Judgment. Accordingly, Plaintiff’s Motion to Expand Time is GRANTED. The

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Plaintiff’s Rule 56(d) affidavit states that Plaintiff executed it on the “12th day of
January, 2011 [sic].” (The Court recognizes that “2011” is likely a typographical error.) In the
Motion to Expand Time, Plaintiff notes that he received the “two tubs” of legal documents on
January 12, 2012. (ECF No. 288, at 1.) In his “Sworn Statement” appended to the motion,
Plaintiff says he received the tubs on January 13, 2012. (Id. at 3.)
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deadline for filing Plaintiff’s memorandum in opposition to the Defendants’ Motion for
Summary Judgment is extended to February 13, 2012.
III. Conclusion
For the reasons set forth above, Plaintiff’s Motion to Defer Consideration of Defendant’s
Motion for Summary Judgment (ECF No. 286) is DENIED. Plaintiff’s Motion To Expand Time
to Respond to Summary Judgment (ECF No. 288), however, is GRANTED. The Court
establishes the following briefing schedule:
1. Plaintiff’s memorandum in opposition to Defendants’ Motion for Summary Judgment
shall be filed on or before February 13, 2012.
2. Defendants’ reply brief in support of summary judgment shall be filed on or before
March 1, 2012.
3. The non-oral hearing on Defendants’ Motion for Summary Judgment is rescheduled to
March 2, 2012.
IT IS SO ORDERED.

/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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