United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge.
Clark and Kohls filed a Motion for Summary Judgment (Doc. 16)
and Statement of Facts in Support of Motion for Summary
Judgment (Doc. 17) on May 31, 2019. In a filing docketed June
4, 2019, incarcerated pro se Plaintiff Gill provided notice
of an updated address. (Doc. 18.) The Court ordered Plaintiff
to respond to the Defendants' Motion for Summary Judgment
on or before July 15, 2019. (Doc. 19.) After no response was
timely filed, Defendants moved for entry of summary judgment.
filing docketed August 12, 2019, Plaintiff provided notice
that he again had an updated address: Lewis-Stiner Unit Blue
2-B-8L, P.O. Box 3100, Buckeye, Arizona 85326. (Doc. 22.) The
Plaintiff also informed the Court that he intends to
“re-file a motion to plea for counsel” and also
to “ask for a continuance on all proceedings concerning
this case, once I have access to the resources necessary to
do such.” (Id.) Plaintiff also avers that he
has “been denied access to such resources as: law
library, copie[sic] machines, mailing envelopes, postal
service for legal mail, paralegal assistance, and even pens
or pencils until now.” (Id.) The Plaintiff
also indicates that “this denied access has been for
approx. 2 months” and that he “plan[s] to show
evidence of this as soon as [he is] able.”
(Id.) The Plaintiff's filing (Doc. 22) did not
acknowledge or address the pending Motion for Summary
Judgment (Doc. 18).
outset, the Court notes that Defendants' Motion for Entry
of Summary Judgment (Doc. 21) appears to assume that summary
judgment can be entered by default. This is not the case.
Even if no response to a motion for summary judgment is
filed, the Court must nonetheless reach the merits of the
motion. See Heineman v. Satterberg, 731 F.3d 914,
917 (9th Cir. 2013) (notwithstanding local rules, a court may
not “deem a non-movant's failure to respond a
complete abandonment of its opposition to summary
judgment”); see also Fed. R. Civ. P. 56
Advisory Committee Notes (2010) (“[S]ummary judgment
cannot be granted by default even if there is a complete
failure to respond to the motion[.]”)
the Court declines to review the merits of Defendants'
Motion for Summary Judgment at this time. In the interests of
justice, the Court will construe Plaintiff's most recent
filing (Doc. 22) as a motion requesting permission for
late-filing of the Plaintiff's response to
Defendants' Motion for Summary Judgment (Doc. 18).
See Balistreri v. Pacifica Police Dept., 901 F.2d
696 (9th Cir. 1988) (“[P]ro se pleadings are liberally
construed, particularly where civil rights claims are
involved”), overruled on other grounds,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
Federal Rules of Civil Procedure provide that “[w]hen
an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.” Fed.R.Civ.P. 6(b). In
determining whether neglect is excusable, the Court considers
four factors: “(1) the danger of prejudice to the
opposing party; (2) the length of the delay and its potential
impact on the proceedings; (3) the reason for the delay; and
(4) whether the movant acted in good faith.”
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24
(9th Cir.2000) (citing Pioneer Inv. Serv. Co. v.
Brunswick Assocs., 507 U.S. 380, 395 (1993)). Although
these factors are not exclusive, they “provide a
framework with which to determine whether missing a filing
deadline constitutes ‘excusable' neglect.”
Briones v. Riviera Hotel & Casino, 116 F.3d 379,
181 (9th Cir. 1997).
the above-recited factors weigh in favor of a finding of
excusable neglect. There is no indication that the Defendants
would face any undue prejudice in having their Motion for
Summary Judgment (Doc. 16) considered alongside responsive
briefing. Although a finding of excusable neglect will delay
resolution of Defendant's Motion for Summary Judgment,
the delay is not substantial and there is no indication the
delay will unduly prejudice Defendants. Furthermore,
Plaintiff's reasons for the delay, namely that he has
“been denied access to such resources as: law library,
copie[sic] machines, mailing envelopes, postal service for
legal mail, paralegal assistance, and even pens or pencils
until now” (Doc. 22), weigh strongly in favor of a
finding of excusable neglect. Finally, there is no indication
that Plaintiff has acted in anything other than good faith.
addition to the above factors, the Court also notes that
Plaintiff has been twice moved between prisons during the
pendency of Defendants' Motion for Summary Judgment (Doc.
16). In a filing docketed on June 4, 2019, Plaintiff gave
notice that he had been moved to Arizona State Prison
Yuma-Cheyenne (Doc. 18), and in a filing docketed August 12,
2019, Plaintiff gave notice that he has been moved to Arizona
State Prison Complex Lewis, in Buckeye Arizona (Doc. 22.)
Plaintiff's transfers weigh in favor of excusing his
failure to timely file.
on these considerations, the Court finds good cause and
excusable neglect for Plaintiff's failure to respond to
Defendant's Motion for Summary Judgment (Doc. 16).
IT IS ORDERED that Plaintiff's time to
respond to Defendants' Motion for Summary Judgment (Doc.
16) is extended. Plaintiff shall respond to the Motion for
Summary Judgment within sixty (60) days of
the date this Order is filed.
IS FURTHER ORDERED that Defendants' Motion for
Entry of Summary Judgment (Doc. 21) is
IS FURTHER ORDERED that the Clerk of Court shall
mail to Plaintiff, at the address provided at Doc. 22, a copy
of this Order, the Court's June 17, 2019 Order (Doc. 19),
Defendant's Motion for Summary Judgment (Doc. 16), and