Kirk v. Felker et al
Filing
58
ORDER signed by Circuit Judge Sidney Thomas on 06/17/11 ORDERING that the Pltf shall file an opposition to the 56 MOTION for SUMMARY JUDGMENT within 21 days. (Michel, G)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JOHN MICHAEL KIRK
Plaintiff,
11
12
vs.
13
No. 2:08-cv-02249-SRT
T. FELKER, et al.,
Defendants.
14
ORDER
/
15
Plaintiff, prisoner at High Desert State Prison proceeding in forma pauperis, filed
16
17
his complaint pursuant to 42 U.S.C. § 1983 alleging an Eighth Amendment violation by
18
defendants Warden Felker, Chief of Inmate Appeals Grannis, Doctor David, and Doctor James.1
19
Defendant David was dismissed for lack of jurisdiction. On May 18, 2010, the Court dismissed
20
plaintiff’s claims against Felker and Grannis and granted plaintiff leave to amend to cure the
21
pleading deficiencies as to Felker and Grannis. The Court did not grant plaintiff general leave to
22
amend his complaint. On June 14, 2010, defendant James answered plaintiff’s complaint. The
23
Court then ordered that discovery be completed by November 15, 2010 and all pretrial motions
24
25
26
1
In the complaint, plaintiff sued defendants Warden Felker and Chief of Inmate Grannis
in their official capacities. The Clerk of the Court will be directed to update the caption in this
case to reflect that the Warden of High Desert State Prison is now Mike McDonald.
1
1
be filed on or before January 18, 2011. On January 18, 2011, defendant James filed a motion for
2
summary judgment, pursuant to Federal Rule of Civil Procedure 56. Plaintiff did not respond to
3
the motion. On February 25, 2011, James filed a declaration of counsel in lieu of reply to
4
opposition.
5
Plaintiff’s Motion to Proceed In Forma Pauperis
6
The Court need not address plaintiff’s December 13, 2010 motion to proceed in
7
forma pauperis, because the Court granted plaintiff leave to proceed in forma pauperis in an
8
order filed April 10, 2009.
9
Plaintiff’s December 13, 2010 “Complaint”
10
On December 13, 2010, plaintiff filed another “complaint,” naming defendant
11
Warden McDonald in place of Felker, defendant Chief of Inmate of Appeals Walker in place of
12
Grannis, as well as new defendants Story, Miranda, Langford, Nepomuceno, and Swingle. The
13
complaint form does not contain a statement of plaintiff’s claim or requested relief, but refers to
14
attached exhibits of plaintiff’s habeas filings in state superior court, which appear to concern
15
events arising out of plaintiff’s inmate appeals in 2009 and 2010.
16
The Court is required to screen complaints brought by prisoners seeking relief
17
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §
18
1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised
19
claims that are legally “frivolous or malicious,” that “fail[] to state a claim on which relief may
20
be granted,” or that “seek[] monetary relief against a defendant who is immune from such relief.”
21
28 U.S.C § 1915(e)(2)(B).
22
Plaintiff’s December 13, 2010 “complaint” fails to adequately amend his original
23
complaint as to Felker and Grannis. In the Court’s May 18, 2010 order dismissing plaintiff’s
24
claims against Felker and Grannis, the Court identified the following pleading deficiencies in
25
Plaintiff’s original complaint: (1) Plaintiff failed to allege any facts indicating defendant Felker’s
26
liability as a supervisor, and (2) plaintiff has no due process claim under § 1983 for defendant
2
1
Grannis’ actions solely in the inmate appeals process. Plaintiff’s December 13, 2010 filing does
2
not cure either deficiency–it contains no new factual allegations concerning Felker or Grannis
3
(indeed, it does not even name Felker or Grannis, but instead refers to attached habeas filings
4
concerning the conduct of other individuals).
5
Nor did plaintiff seek permission to amend his original complaint beyond curing
6
the pleading deficiencies as to Felker and Grannis. The Court’s May 18, 2010 order did not
7
grant Plaintiff general leave to amend the complaint. At the time of his December 13, 2010
8
filing, therefore, plaintiff was no longer permitted to amend his complaint “as a matter of
9
course.” Fed. R. Civ. Proc. 15(a)(1) (“A party may amend its pleading once as a matter of
10
course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive
11
pleading is required, 21 days after service of a responsive pleading or 21 days after service of a
12
motion under Rule 12(b), (e), or (f), whichever is earlier.”). Instead, plaintiff was required to
13
seek “the opposing party’s written consent or the court’s leave” to amend his complaint. Fed. R.
14
Civ. Proc. 15(a)(2). He did neither.2 Accordingly, IT IS HEREBY ORDERED that plaintiff’s
15
December 13, 2010 “complaint” will be stricken.
In addition, because plaintiff’s December 13, 2010 filing does not cure pleading
16
17
deficiencies as to claims against Felker and Grannis and was unaccompanied by a motion for
18
leave to amend the original complaint, IT IS HEREBY ORDERED that, within 21 days of the
19
date of this order, plaintiff will show cause why his claims against Felker and Grannis should not
20
be dismissed. Failure to comply with this order will result in dismissal of plaintiff’s claims
21
against defendants Felker and Grannis, pursuant Federal Rule of Civil Procedure 41(b).
22
23
2
24
25
26
The Court notes that on December 22, 2010, Felker and Grannis filed an opposition to
plaintiff’s December 13, 2010 “complaint”, seeking dismissal on grounds that (1) plaintiff was
only given leave to amend as to his claims against Felker and Grannis and has failed to allege
any facts to cure his pleading deficiencies, and (2) filing an amended complaint seven months
after being given leave to amend demonstrates a lack of prosecution and diligence by plaintiff,
under Federal Rule of Procedure 41(b). Plaintiff has not responded to the opposition.
3
1
Defendant James’s Motion for Summary Judgment
2
3
As noted above, plaintiff has not opposed James’s January 18, 2010 motion for
summary judgment.
4
Local Rule 230(l) provides in part: “Failure of the responding party to file an
5
opposition or to file a statement of no opposition may be deemed a waiver of any opposition to
6
the granting of the motion . . . .” In the Court’s order filed April 12, 2010, plaintiff was advised
7
of the requirements for filing an opposition to a motion and that failure to oppose such a motion
8
may be deemed a waiver of opposition to the motion.3
9
Local Rule 110 provides that failure to comply with the Local Rules “or with any
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
The Court’s order stated, inter alia, that: (1) “Unless otherwise ordered, all motions to
dismiss, motions for summary judgment, motions concerning discovery, motions pursuant to
Rules 7, 11, 12, 15, 41, 55, 56, 59 and 60 of the Federal Rules of Civil Procedure, and motions
pursuant to Local Rule 11-110 shall be briefed pursuant to Local Rule 78-230(m). Failure to
oppose such a motion timely may be deemed a waiver of opposition to the motion. Opposition to
all other motions need be filed only as directed by the court.” (¶ 7); and (2) “Pursuant to Rand v.
Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), plaintiff is advised of the following
requirements for opposing a motion for summary judgment made by defendants pursuant to Rule
56 of the Federal Rules of Civil Procedure. Such a motion is a request for an order for judgment
in favor of defendants without trial. A defendant’s motion for summary judgment will set forth
the facts that the defendants contend are not reasonably subject to dispute and that entitle the
defendants to judgment. To oppose a motion for summary judgment, plaintiff must show proof
of his or her claims. Plaintiff may do this in one or more of the following ways. Plaintiff may
rely upon statements made under the penalty of perjury in the complaint if the complaint shows
that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court’s
attention those parts of the complaint upon which plaintiff relies. Plaintiff may serve and file one
or more affidavits or declarations setting forth the facts that plaintiff believes prove plaintiff’s
claims; the person who signs an affidavit or declaration must have personal knowledge of the
facts stated. Plaintiff may rely upon written records, but plaintiff must prove that the records are
what plaintiff claims they are. Plaintiff may rely upon all or any part of the transcript of one or
more depositions, answers to interrogatories, or admissions obtained in this proceeding. If
plaintiff fails to contradict the defendants’ evidence with counteraffidavits or other admissible
evidence, the defendants’ evidence may be taken as the truth and the defendants’ motion for
summary judgment granted. If there is some good reason why such facts are not available to
plaintiff when required to oppose a motion for summary judgment, the court will consider a
request to postpone considering the defendants’ motion. If plaintiff does not serve and file a
written opposition to the motion or a request to postpone consideration of the motion, the court
may consider the failure to act as a waiver of opposition to the defendants’ motion. If the
defendants’ motion for summary judgment, whether opposed or unopposed, is granted, judgment
will be entered for the defendants without a trial and the case will be closed.” (¶ 10).
4
1
order of the Court may be grounds for imposition by the Court of any and all sanctions
2
authorized by statute or Rule or within the inherent power of the Court.” In the Court’s April 12,
3
2010 order, plaintiff was also advised that failure to comply with the Local Rules may result in a
4
recommendation that the action be dismissed.
5
Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:
6
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.
7
8
9
10
Id.
11
Good cause appearing, IT IS HEREBY ORDERED that, within 21 days of the
12
date of this order, plaintiff shall file an opposition, if any he has, to the motion for summary
13
judgment or a statement of non-opposition. Failure to comply with this order will result in
14
dismissal of plaintiff’s claims against defendant James, pursuant Federal Rule of Civil Procedure
15
41(b).
16
DATED: June 17, 2011
17
18
/s/ Sidney R. Thomas
Sidney R. Thomas, United States Circuit Judge
Sitting by Designation
19
20
21
22
23
24
25
26
5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
