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Hunter v. White

United States District Court, E.D. California

May 7, 2018

DEMONDZA HUNTER, Plaintiff,
v.
W. WHITE, et al., Defendants.

          ORDER ADDRESSING DEFENDANT OGBUEHI'S OBJECTIONS TO PLAINTIFF'S STATE MENT OF NON-OPPOSITION (ECF NO. 48.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Demondza Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's Third Amended Complaint filed on July 18, 2016, against sole defendant Physician's Assistant Clement Ogbuehi (“Defendant”), on Plaintiff's claims for inadequate medical care under the Eighth Amendment. (ECF No. 23.)

         On September 5, 2017, defendant Ogbuehi filed a motion for summary judgment, or in the alternative, for partial summary judgment. (ECF No. 40.) On November 15, 2017, Plaintiff filed a notice of non-opposition to Defendant's motion. (ECF No. 47.) On November 17, 2017, Defendant filed objections to Plaintiff's notice of non-opposition. (ECF No. 48.)

         11. DEFENDANT'S OBJECTIONS

         Defendant objects to Plaintiff's statement of non-opposition as untimely, as in violation of Local Rule 260(b), and for its failure to defeat Defendant's motion for summary judgment.

         Timeliness

         Defendant first objects to Plaintiff's statement of non-opposition as untimely because it was not filed within twenty-one days after Defendant's motion was filed, as required by Local Rule 230(l).[1] Defendant also contends that Plaintiff's statement of non-opposition is untimely because it was filed on November 15, 2017, more than thirty days after the court's October 12, 2017, order allowing Plaintiff thirty days in which to file it.

         Defendant's arguments are unpersuasive. At this stage of the proceedings it is of no consequence that Plaintiff missed Rule 230(l)'s twenty-one day deadline because on October 12, 2017, after the twenty-one day deadline had expired, the court allowed Plaintiff thirty more days to file the statement of non-opposition. (ECF No. 45.) Further, under the Federal Rules of Civil Procedure, Plaintiff timely filed his statement of non-opposition within the thirty-day deadline.[2] Therefore, Plaintiff's statement of non-opposition was timely filed

         Local Rule 260(b)

         Defendant next objects to Plaintiff's statement of non-opposition as in violation of Local Rule 260(b), because it does not include a statement of undisputed facts “that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, disposition, interrogatory, answer, admission, or other document relied upon in support of that denial.” Local Rule 260(b). (ECF No. 48 at 2:19-23.)

         Defendant is correct that Plaintiff failed to include a statement of undisputed facts in his statement of non-opposition. However, Plaintiff has included a statement of undisputed facts in his motion for partial summary judgment. (ECF No. 41 at 19-26.) The court affords pro se litigants, such as Plaintiff, some leniency to compensate for their lack of legal training. “In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). The Ninth Circuit has repeatedly reaffirmed the principal that pro se litigants are entitled to leniency, particularly in civil rights cases. See e.g., Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (“Courts in this circuit have an obligation to give a liberal construction to the filings of pro se litigants, especially when they are civil rights claims filed by inmates.”); Pouncil v. Tilton, 704 F.3d 568, 574-75 (9th Cir. 2012) (construing pro se complaints liberally protects the rights of pro se litigants to self-representation and meaningful access to the courts, which is particularly important in civil rights cases), cert. denied, 571 U.S. 820, 134 S.Ct. 76, 187 L.Ed.2d 30 (2013); Woods v. Carey, 684 F.3d 934, 938-40 (9th Cir. 2012) (recognizing hardships faced by prisoners proceeding pro se); see Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir. 1984) (holding that a pro se prisoner litigant's pleadings must be construed liberally on a motion for summary judgment). When a plaintiff proceeds pro se and technically violates a rule, the court should act with leniency toward the pro se litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986); Pembrook v. Wilson, 370 F.2d 37, 39-40 (9th Cir. 1966).

         In light of Ninth Circuit law addressing pro se litigants, Defendant's objections based on Plaintiff's violation of Local Rule 260(b) holds little weight. To the extent possible the court shall endeavor to resolve the parties' motions on the merits.

         Failure to Defeat Motion ...


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