(PC) Brummett v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:22-cv-00407-ADA-BAM (PC) 12 Plaintiff, ORDER GRANTING LEAVE FOR PLAINTIFF TO FILE SUPPLEMENTAL 13 v. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT IN COMPLIANCE WITH FED. 14 ALLISON, et al., R. CIV. P. 56 AND LOCAL RULE 260(b) 15 Defendants. THIRTY (30) DAY DEADLINE 16 17 Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a state prisoner proceeding pro se in 18 this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first 19 amended complaint against Defendants V. Diaz and D. Escalera for excessive force in violation 20 of the Eighth Amendment. 21 On September 25, 2023, Defendants filed a motion for summary judgment based on 22 Plaintiff’s failure to exhaust his administrative remedies before the filing of this action. (ECF No. 23 28.) The motion was accompanied by a Rand warning, pursuant to Woods v. Carey, 684 F.3d 934 24 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 25 F.2d 409 (9th Cir. 1988), as well as the requirements for filing an opposition pursuant to Local 26 Rule 260(b). (ECF No. 28-4.) 27 /// 28 /// 1 I. Leave to File Supplemental Opposition 2 Plaintiff timely filed his opposition to Defendants’ motion for summary judgment on 3 October 18, 2023. (ECF No. 29.) Defendants filed a reply on October 30, 2023. (ECF No. 30.) 4 Upon review of Plaintiff’s opposition, it appears Plaintiff has failed to file a separate 5 document disputing Defendants’ statement of undisputed facts, as required by Local Rule 260(b). 6 The crux of the opposition contends that Defendants’ motion for summary judgment was 7 untimely filed, because the deadline for filing motions for summary judgment for failure to 8 exhaust was September 23, 2023, and the motion was not filed until September 25, 2023. (ECF 9 No. 29, pp. 1–2.) The Court further notes that although Plaintiff’s first amended complaint is 10 signed under penalty of perjury, (ECF No. 10, p. 15), his opposition to the motion for summary 11 judgment is not, (ECF No. 29, p. 4). 12 It is well-established that the pleadings of pro se litigants are held to “less stringent 13 standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) 14 (per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of procedure that 15 govern other litigants.” King v. Atjyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted), 16 overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). 17 However, the unrepresented prisoners’ choice to proceed without counsel “is less than voluntary” 18 and they are subject to “the handicaps . . . detention necessarily imposes upon a litigant,” such as 19 “limited access to legal materials” as well as “sources of proof.” Jacobsen v. Filler, 790 F.2d 20 1362, 1364–65 & n.4 (9th Cir. 1986) (citations and internal quotation marks omitted). Inmate 21 litigants, therefore, should not be held to a standard of “strict literalness” with respect to the 22 requirements of the summary judgment rule. Id. at 1364 n.4 (citation omitted). 23 As Defendants note in their reply brief, the motion for summary judgment was timely 24 filed. Although Plaintiff is correct that the Court set the deadline for filing motions for summary 25 judgment for failure to exhaust administrative remedies for September 23, 2023, (ECF No. 25), 26 this date fell on a Saturday. Pursuant to Federal Rule of Civil Procedure 6(a)(1)(C), if the last day 27 of a deadline falls on a Saturday, Sunday, or legal holiday, “the period continues to run until the 28 end of the next day that is not a Saturday, Sunday, or legal holiday.” Accordingly, Defendants’ 1 motion for summary judgment was timely filed on Monday, September 25, 2023. 2 In light of Plaintiff’s pro se status, the timely filing of his opposition brief, and the 3 apparent confusion caused by the Saturday deadline, the Court is inclined to grant Plaintiff an 4 opportunity to submit a supplemental opposition. 5 Plaintiff is warned that any submission should comply with the applicable requirements of 6 Federal Rule of Civil Procedure 56, which sets forth what he must do in order to oppose a motion 7 for summary judgment. Plaintiff may not simply rely on the allegations in his first amended 8 complaint, but must set out specific facts in declarations, depositions, answers to interrogatories, 9 or authenticated documents, as provided in Rule 56(c), that contradict the facts shown in the 10 Defendants’ declarations and documents and show that there is a genuine issue of material fact 11 for trial. 12 Further, Plaintiff must comply with Local Rule 260(b), which requires him to “reproduce 13 the itemized facts in Defendants’ Statement of Undisputed Facts and admit those facts that are 14 undisputed and deny those that are disputed, including with each denial a citation to the particular 15 portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 16 document relied upon in support of that denial.” Plaintiff may also “file a concise Statement of 17 Disputed Facts, and the source thereof in the record, of all additional material facts as to which 18 there is a genuine issue precluding summary judgment or adjudication.” Id. If additional 19 discovery is needed to oppose summary judgment, Local Rule 260(b) further requires Plaintiff to 20 “provide a specification of the particular facts on which discovery is to be had or the issues on 21 which discovery is necessary.” 22 II. Conclusion and Order 23 Based on the foregoing, IT IS HEREBY ORDERED as follows: 24 1. Within thirty (30) days from the date of service of this order, Plaintiff may file either: 25 a. A supplemental opposition to Defendants’ motion for summary judgment, in 26 compliance with Federal Rule of Civil Procedure 56 and Local Rule 260; or 27 b. Written notice indicating that he does not wish to file a supplemental opposition 28 and that he chooses to stand on the opposition brief filed on October 18, 2023; 1 2. If Plaintiff chooses to file a supplemental opposition, Defendants may file a supplemental 2 reply within fourteen (14) days from the date of CM/ECF filing of Plaintiff’s 3 supplemental opposition; and 4 3. If no supplemental opposition is filed, the Court will decide Defendants’ motion for 5 summary judgment on the basis of the pleadings and the existing briefing only. 6 IT IS SO ORDERED. 7 8 Dated: November 1, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28