Jolly v. Mohave, County of ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Clifford Jolly, No. CV-19-08088-PCT-JJT 10 Plaintiff, ORDER 11 v. 12 County of Mohave, et al., 13 Defendants. 14 15 At issue are the Summary Judgment Motion filed by Defendants Daniel and Jane 16 Doe Oehler (Doc. 186), accompanied by a Statement of Facts (Doc. 187), and the Summary 17 Judgment Motion filed by Defendant City of Kingman (Doc. 188), accompanied by a 18 Statement of Facts (Doc. 189). Plaintiff Clifford Jolly, appearing pro se, filed a Response 19 to Kingman’s Motion (Doc. 200) two days after the deadline to do so, with no controverting 20 statement of facts, and filed no timely response to the Oehlers’ Motion.1 Also at issue are 21 two Daubert Motions: the Oehlers’ Motion to Preclude Opinions and Expert Testimony of 22 Brian Barker (Doc. 185), and Kingman’s Motion in Limine Re: Exclusion of Plaintiff’s 23 Purported Police Practices Expert (Doc. 190). Because Plaintiff filed no response to either 24 Daubert Motion, Defendants filed two Motions for Summary Adjudication (Docs. 202, 25 203) of the Daubert Motions. In this Order, the Court also addresses the Oehlers’ Motion 26 27 1 Around the filing deadline of January 31, 2022, Plaintiff apparently had trouble filing his Response (Doc. 200), so the Court construes the two-day delay as a timely filing, even 28 though Plaintiff did not request an extension of time. Sixteen days later, Plaintiff impermissibly filed additional documents, which the Court will address below. 1 for Rule 37 Sanctions (Doc. 175). The Court resolves all of these Motions without oral 2 argument. LRCiv 7.2(f). 3 The Court laid out the procedural history of this three-year-old matter in its prior 4 Order (Doc. 199) and need not repeat it here. Four consecutive sets of counsel have sought 5 to be relieved of representing Plaintiff in this matter, and the fourth counsel withdrew with 6 Plaintiff’s consent on January 10, 2022. (Doc. 198.) For the reasons stated in detail in the 7 prior Order (Doc. 199), the Court did not further extend Plaintiff’s deadlines to respond to 8 Defendants’ present Motions (which the Court had already extended), and Plaintiff’s 9 responses were all due on January 31, 2022. Plaintiff timely filed only a partial Response 10 to one of Defendants’ Motions, that is, Kingman’s Motion for Summary Judgment; 11 Defendants’ other Motions were uncontested. 12 Local Rule 7.2(i) provides that a party’s failure to timely file a responsive brief “may 13 be deemed a consent to the denial or granting of the motion and the Court may dispose of 14 the motion summarily.” At the Rule 16 Scheduling Conference and in the Scheduling Order 15 (Doc. 44 ¶ 16), the Court warned the parties of their obligations to timely respond to 16 motions and comply with all applicable Rules and Court Orders and that the consequences 17 of failing to respond to a dispositive motion include the granting of the motion and 18 dismissal of the case. Moreover, the Court granted the repeated requests by Plaintiff to 19 extend the deadlines in this matter—as the Court summarized in its prior Order 20 (Doc. 199)—including extensions ranging from four to six weeks (Doc. 194) to respond to 21 the present Motions. 22 Plaintiff’s pro se status does not provide an excuse for his failure to comply with 23 the deadlines set by the Court and the applicable Rules of practice. See Am. Ass’n of 24 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (noting that 25 pro se litigants are not excused from following court rules); Carter v. Comm’r of Internal 26 Revenue, 784 F.2d 1006, 1008-09 (9th Cir. 1986) (same). Because the Court warned 27 Plaintiff of the consequences of failing to timely file responsive briefs in this matter, under 28 Local Rule 7.2(i), Defendants are entitled to summary disposition of the Oehlers’ Motion 1 for Summary Judgment (Doc. 187), the Oehlers’ Motion to Preclude Opinions and Expert 2 Testimony of Brian Barker (Doc. 185), and Kingman’s Motion in Limine Re: Exclusion of 3 Plaintiff’s Purported Police Practices Expert (Doc. 190). See Brydges v. Lewis, 18 F.3d 4 651, 652 (9th Cir. 1994) (per curiam) (concluding that the pro se plaintiff’s failure to timely 5 respond to the defendant’s motion for summary judgment when the court had warned 6 plaintiff of the consequence of a failure to respond warranted granting the motion for 7 summary judgment in the defendant’s favor under the applicable Local Rule). 8 Two days after the response deadline, Plaintiff filed a partial Response (Doc. 200) 9 to Kingman’s Motion for Summary Judgment (Doc. 188). Although the Response 10 obliquely refers to evidence that may or may not exist, the Response contains no actual 11 citation to evidence as required by Federal Rule of Civil Procedure 56(c)(1)(A) and was 12 accompanied by no controverting statement of facts.2 13 In opposing a motion for summary judgment, a nonmoving party has the burden of 14 showing a genuine issue of triable fact exists to overcome entry of summary judgment. See 15 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the nonmoving 16 party to identify with reasonable particularity the evidence that precludes summary 17 judgment.” Id. The Court need not assume this burden and “scour the record in search of a 18 genuine issue of triable fact.” Id.; see also Carmen v. S.F. Unified Sch. Dist., 237 F.3d 19 1026, 1031 (9th Cir. 2001) (holding that it would be more than “unfair” to require the 20 district court “to search the entire record” if a party fails to “disclose where in the record 21 the evidence for [the factual claims] can be found”). 22 Hence, Local Rule 56.1(b), in pertinent part, provides: 23 Any party opposing a motion for summary judgment must file a statement, 24 separate from that party’s memorandum of law, setting forth: (1) for each paragraph of the moving party’s separate statement of facts, a 25 correspondingly numbered paragraph indicating whether the party disputes 26 the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party’s position if that fact is 27 disputed . . . . 28 2 The Response refers to “Exhibits,” but no exhibits are attached. 1 (emphasis added). Moreover, Local Rule 56.1(e) provides: 2 Memoranda of law filed . . . in opposition to a motion for summary judgment . . . must include citations to the specific paragraph in the statement of facts 3 that supports assertions made in the memoranda regarding any material fact 4 on which the party relies . . . in opposition to the motion. 5 (emphasis added). Where a nonmoving party fails to specifically identify and cite evidence 6 raising a genuine issue of triable fact in its response to the motion, the Court may properly 7 enter summary judgment against it. See Carmen, 237 F.3d at 1031. Here, the Court declines 8 to search the record in an effort to try to find evidence supporting Plaintiff’s positions and 9 accordingly will also grant Kingman’s Motion for Summary Judgment (Doc. 188). 10 Sixteen days after the response deadline, and without leave of Court, Plaintiff filed 11 additional documents in response to Defendants’ Motions for Summary Judgment, styled 12 a Response to the Oehlers’ Motion for Summary Judgment (Doc. 206), a Response to the 13 Oehlers’ Statement of Facts (Doc. 207), another Response to Kingman’s Motion for 14 Summary Judgment (Doc. 208), and a Response to Kingman’s Statement of Facts 15 (Doc. 209). Because Plaintiff’s filings were untimely, and indeed filed after Defendants 16 filed their Replies, the Court disregards them.3 Even if the Court considered them, they 17 suffer the same defects as Plaintiff’s prior filings, including that they fail to point to specific 18 admissible evidence in support of Plaintiff’s positions as required by the applicable Rules. 19 Earlier, the Oehlers filed a Motion for Rule 37 Sanctions (Doc. 175) asking the 20 Court to dismiss Plaintiff’s Complaint because his damages claim was entirely devoid of 21 evidentiary support. Because the Court now grants Defendants’ Motions for Summary 22 Judgment, the Court will deny the Motion for Rule 37 Sanctions as moot. 23 IT IS THEREFORE ORDERED granting Defendants Daniel and Jane Doe 24 Oehler’s Motion to Preclude Opinions and Expert Testimony of Brian Barker (Doc. 185). 25 IT IS FURTHER ORDERED granting Defendant City of Kingman’s Motion in 26 Limine Re: Exclusion of Plaintiff’s Purported Police Practices Expert (Doc. 190). 27 28 3 Plaintiff also impermissibly filed a second Response to Kingman’s Motion for Summary Judgment. (Docs. 200, 208.) 1 IT IS FURTHER ORDERED granting Defendants Daniel and Jane Doe Oehler’s 2|| Motion for Summary Adjudication (Doc. 202). 3 IT IS FURTHER ORDERED granting Defendant City of Kingman’s Motion for Summary Disposition of City’s Daubert Motion to Exclude Plaintiff's Expert, Mel || McDonald (Doc. 203). 6 IT IS FURTHER ORDERED granting Defendants Daniel and Jane Doe Oehler’s 7\| Motion for Summary Judgment (Doc. 186). 8 IT IS FURTHER ORDERED granting Defendant City of Kingman’s Motion for Summary Judgment (Doc. 188). 10 IT IS FURTHER ORDERED denying as moot Defendants Daniel and Jane Doe 11 || Oehler’s Motion for Rule 37 Sanctions (Doc. 175). 12 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in favor of Defendants and close this case. 14 Dated this 17th day of February, 2022. CN Unifga StatesDistrict Judge 17 18 19 20 21 22 23 24 25 26 27 28 _5-