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York v. Stewart

United States District Court, E.D. California

February 20, 2018

REGINALD RAY YORK, Plaintiff,
v.
M. STEWART, et al., Defendants.

         FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, (ECF No. 24), DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S OPPOSITION, (ECF No. 29), AND PLAINTIFF'S MOTION FOR SANCTIONS, (ECF No. 30)

         I. Introduction and Procedural History

         Plaintiff Reginald Ray York is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiffs claims against Defendant Garcia for excessive force, Defendant Neighbors for failure to protect Plaintiff from the use of force, and Defendants Garcia, Neighbors, and Stewart for failure to decontaminate plaintiffs cell. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On June 15, 2017, Defendant Stewart filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing Plaintiff has failed to exhaust his administrative remedies. Fed.R.Civ.P. 56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert, denied, 135 S.Ct. 403 (2014). (ECF No. 51.) Plaintiff failed to file a response with the time permitted, and on July 19, 2017, the Court ordered Plaintiff to file an opposition or statement of non-opposition to the motion within thirty days. (ECF No. 25.)

         On July 19, 2017, the same day the Court issued its order, defense counsel received an opposition to Defendant Stewart's motion for summary judgment from Plaintiff. (ECF No. 30, at 17.) Defense counsel contacted the Court and discovered that it had not received Plaintiffs filing, and so defense counsel forwarded a copy to the Court. (Id.) Defense counsel copied Plaintiff on its letter to the Court explaining these facts.

         On July 24, 2017, the Court received and filed Plaintiffs opposition to Defendant Stewart's motion for summary judgment. (ECF No. 26.) On July 28, 2017, Defendant Stewart filed a reply to Plaintiffs opposition. (ECF No. 27.)

         On August 4, 2017, Plaintiff filed a second opposition to Defendant Stewart's motion for summary judgment. (ECF No. 28.) On August 14, 2017, Defendant Stewart filed a motion strike Plaintiffs August 4, 2017 filing, arguing that it is tantamount to an unauthorized sur-reply. (ECF No. 29.)

         On September 8, 2017, Plaintiff filed a motion for sanctions against Defendant Stewart and defense counsel under Federal Rule of Civil Procedure 11(b). (ECF No. 30.) Plaintiff asserts in the motion that his August 4, 2017 filing was an attempt to comply with the Court's July 19, 2017 order. (Id.) Further, Plaintiff states in the motion that he opposes Defendant Stewart's motion to strike, and that Defendant Stewart and defense counsel should be sanctioned for using improper methods to delay his court proceeding and deny him access to the Courts. (Id)

         On September 25, 2017, Defendants filed an opposition to Plaintiffs motion for sanctions, with a supporting declaration. (ECF No. 32.) Defense counsel filed an amended supporting declaration later the same day. (ECF No. 33.)

         On September 27, 2017, defense counsel filed a declaration in lieu of a reply by Defendant Stewart to Plaintiffs opposition to the motion to strike. (ECF No. 34.)

         These motions are now deemed submitted without oral argument. Local Rule 230(1).

         II. Defendant's Motion to Strike and Plaintiffs Motion for Sanctions

         A. Motion to Strike

         Before addressing Defendant Stewart's motion for summary judgment, the Court will evaluate Defendant Stewart's motion to strike Plaintiffs second opposition to the motion for summary judgment. Defendant Stewart argues that Plaintiffs second opposition, filed on August 4, 2017, amounts to a sur-reply. Because no sur-reply was invited by the Court, and a sur-reply is not authorized by the Federal Rules of Civil Procedure or the Local Rules, Defendant argues that the second opposition should be stricken pursuant to Federal Rule of Civil Procedure 12(f).

         In opposition to the motion to strike, Plaintiff asserts that he provided his initial opposition to Defendant Stewart's motion for summary judgment to prison officials for mailing on July 13, 2017, and it was "logged as being mailed to this Court and the Defendant's attorney on July 14, 2017." (ECF No. 30 ¶ 29.) In support, Plaintiff provides an outgoing legal mail log showing that on July 14, 2017, legal mail was sent for Plaintiff to both the Clerk of the Court and to defense counsel. (Id. at p. 21.) Plaintiff asserts that his mail was held or not properly delivered.

         As noted above, on July 19, 2017, having not yet received any response or communication from Plaintiff, the Court ordered Plaintiff to file a response to the pending summary judgment motion. Plaintiff asserts that on July 31, 2017, after he received that order, he provided the second opposition to prison officials for mailing, in an attempt to comply with the Court's order. (Id. at ¶¶ 3-6; ECF No. 28, at p. 81.) Plaintiff also mailed defense counsel a copy of his second opposition. (ECF No. 30 ¶ 7.) Based on these facts, Plaintiff argues that the motion to strike was made to harass Plaintiff and interfere with his access to the courts, as defense counsel should have understood he was attempting to comply with the Court's order. Therefore, he opposes the motion to strike.[1]

         This Court's Local Rules provide for a motion, an opposition, and a reply. Local Rule 230(1). As Defendant correctly points out, neither the Local Rules nor the Federal Rules of Civil Procedure provide the right to file a response to a reply. See, e.g., Wyatt v. Zanchi, No. 1:09-cv-01242 BAM PC, 2011 WL 5838438, at *5 (E.D. Cal. Nov. 21, 2011).

         In this Circuit, courts are required to afford pro se litigants additional leniency. E.g., Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). This leniency does not extend to permitting sur-replies as a matter of course, and the Court is not generally inclined to permit sur-replies absent an articulation of good cause why such leave should be granted.

         The Court has reviewed Plaintiffs first and second oppositions to the motion for summary judgment. The second opposition is similar to the first opposition, but Plaintiff has re-written and added content to the second opposition. Further, the second opposition was served on Defendant Stewart after Defendant Stewart's reply was filed, and therefore Defendant Stewart did not have any opportunity to respond to any new arguments made in the second opposition. The rules permit Plaintiff only one opposition to Defendant Stewart's summary judgment motion, and Plaintiff has not explained why he should be permitted to provide any additional response to the motion. Thus, under the circumstances, the Court finds it appropriate to recommend striking and disregarding Plaintiffs second opposition.

         The Court next turns to Plaintiffs motion for sanctions.

         B. Motion for Sanctions

         Plaintiff seeks sanctions against Defendant Stewart and defense counsel under Rule 11, arguing that the motion to strike discussed above was brought in bad faith, because counsel should have known the second opposition was mailed in an attempt to comply with the Court's July 19, 2017 order and to prevent any adverse ruling.

         Rule 11 provides that, when an attorney signs, files, or advocates a legal memorandum, that attorney certifies that the arguments contained therein are not presented for any improper purpose, that those legal arguments are non-frivolous, and that factual contentions contained therein are supported by available evidence. See Fed. R. Civ. P. 11(b). Rule 11(c) requires that a party moving for sanctions under Rule 11 serve the motion on the party against whom sanctions are sought, and then provide that party twenty-one days following service of the motion within which to correct the putatively sanctionable filing before filing the motion with the court. See Fed.R.Civ.P. 11(c)(2).

         In this case, Plaintiff dated his motion on September 1, 2017, and provided it to prison officials for mailing on September 4, 2017, showing that he did not serve his motion on Defendant Stewart or defense counsel at least twenty-one days prior to filing the motion. (ECF No. 30, at 13, 26.) Thus, to the extent that Plaintiff seeks Rule 11 sanctions due to Defendant Stewart's motion to strike being made in bad faith or for a harassing purpose, at a minimum the motion should be denied as procedurally noncompliant with this safe harbor requirement. Further, the Court does not find evidence that the motion to strike was filed for a harassing purpose or in bad faith. Rather, the motion reasonably raised the argument that Plaintiffs first and second oppositions were different, and the second opposition appeared to be a supplement, which is not allowed by the Federal Rules of Civil Procedure and was not authorized by the Court. The Court finds that an objection and motion to strike the second opposition was reasonable and not done in bad faith.

         Plaintiff further asserts that prison officials and defense counsel have schemed to deny him access to the courts by delaying or withholding his mail. He argues this causes him to miss court deadlines and interfere with his litigation, which he argues happened in this case regarding his first opposition to the summary judgment motion. Plaintiff asserts that the scheme involves defense counsel from the Office of the Attorney General advising prison officials of their filing of dispositive motions, which then prompts prison officials to hold an inmate's legal mail until a court deadline was missed and a ruling was made against the inmate. Plaintiff seeks for the Court to order that Plaintiff and all inmates in the custody of the California Department of Corrections and Rehabilitation ("CDCR") be provided with tablets and email service with the Court to protect inmate access to the courts and deter the conduct. Liberally construed, this portion of Plaintiff s request is a motion for injunctive relief.

         "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20 (citations omitted). An injunction may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation omitted).

         "[A] court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant." Zenith Radio Corp. v. Hazeltine Research, Inc.,395 U.S. 100, 110 (1969); SEC v. Ross,504 F.3d 1130, 1138-39 (9th Cir. 2007). Similarly, the pendency of this action does not give the Court jurisdiction over prison officials in general or over Plaintiffs litigation issues. Summers v. Earth Island Institute,555 U.S. 488, 492-93 (2009); Mayfieldv. United States,599 F.3d 964, 969 (9th Cir. 2010). The Court's jurisdiction is limited to the parties in ...


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