United States District Court, D. Idaho
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE.
a prisoner in the custody of the Idaho Department of
Correction (“IDOC”), is proceeding pro se and in
forma pauperis in this civil rights action. The Court
screened the Complaint, pursuant to 28 U.S.C. §§
1915 and 1915A, and determined that it stated a plausible
claim that two defendant correctional officers retaliated
against Plaintiff-in violation of the First Amendment-for
Plaintiff's litigation activities and use of the prison
grievance system. (See Initial Review Order, Dkt.
pending before the Court is a Motion for Summary Judgment
(Dkt. 23) filed by Defendants Scott Walden and Jennifer
Pantner, the only Defendants against whom Plaintiff has been
allowed to proceed. Also pending is Defendants' Motion to
Strike Plaintiff's Supplemental Response Brief in
opposition to their Motion for Summary Judgment. (Dkt. 40.)
All parties have consented to the jurisdiction of a United
States Magistrate Judge to conduct all proceedings in this
case in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73. (Dkt. 13.)
fully reviewed the record, the Court finds that
Plaintiff's Supplemental Response will be accepted.
Further, the Court requires additional evidence to determine
whether Defendants are entitled to summary judgment.
Accordingly, the Court enters the following Order denying
Defendants' Motion to Strike, denying without prejudice
Defendants' Motion for Summary Judgment, allowing
Defendants to renew their motion at a later date, and
allowing the parties to submit additional evidence and
MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL RESPONSE
in this case closed on December 5, 2016. Defendants filed
their Motion for Summary Judgment on January 4, 2017. (Dkt.
23.) Plaintiff filed his response on February 7, 2017. (Dkt.
25.) In that response, Plaintiff asked that the Court defer
considering the Motion, or allow additional time for
Plaintiff to conduct discovery, under Federal Rule of Civil
Procedure 56(d). Plaintiff did not dispute any of the facts
that Defendants alleged were undisputed, but he did submit
some evidence-a memorandum purportedly written by Defendant
Walden and a declaration offered by another inmate- with
respect to Plaintiff's claim that he was terminated from
his prison employment in retaliation for his exercise of
protected activity. This evidence tends to show that there
were part-time positions available within the Correctional
Industries (“CI”) program and that various
inmates were allowed to participate in that program on a
part-time basis. (Id.; see Declaration of
David Johnson and May 2, 2014 Memorandum, Dkt. 25-12.)
Rule 56(d) response appears to have been based on his motion
to modify the Court's scheduling order, which he filed
just days before the close of discovery. (Id.; Dkt.
25-1 at 2 ¶ 2; see Dkt. 41 at 2.) Plaintiff
evidently assumed that the Court would grant the motion to
modify and, therefore, did not attempt to dispute any of
Defendants' factual contentions in their Motion for
Summary Judgment. The motion to modify the scheduling order
was later denied because Plaintiff had not established good
cause for filing such a motion so close to the end of the
discovery period. (Dkt. 37 at 2.)
two months after the close of discovery, and two weeks after
Plaintiff filed his response to the Motion for Summary
Judgment, Plaintiff filed a motion to compel, contending that
Defendants had not provided him with discovery. (Dkt. 29.)
This motion was later denied, because granting the
post-discovery motion to compel would “jeopardize the
orderly resolution of th[is] case and disrupt the
court's overall management of its busy docket.”
Monson v. Corizon, No. 1:11-cv-00468-MHW, 2013 WL
3756440, at *3 (D. Idaho July 11, 2013); see also
Dkt. 37 at 4.
Motion for Summary Judgment became ripe on February 21, 2017,
when Defendants filed their reply brief. (See Dkt.
the Court's denial of Plaintiff's motion to modify
the scheduling order and motion to compel, Plaintiff filed a
“Supplemental and Substantive Response to
Defendants' Motion for Summary Judgment, ” which
included further argument opposing the Motion for Summary
Judgment and additional evidence intended to dispute portions
of Defendants' statement of undisputed facts. (Dkt. 39.)
Plaintiff did not seek leave of Court to file this
supplemental response, even though the Court had previously
instructed that “[n]either party shall file
supplemental responses, replies, affidavits, or other filings
not authorized by the Local Rules without prior leave of
Court.” (Dkt. 15 at 5.)
now move to strike Plaintiff's supplemental response
because it was filed in violation of Local Rule 7.1 and the
Court's previous order prohibiting unauthorized
supplemental filings. (Dkt. 40.)
contends that his supplemental response is his “first,
substantive response” to the Motion for Summary
Judgment, because Plaintiff “first asked the Court to
modify the Scheduling Order . . . and to compel disclosure of
discovery.” (Dkt. 41 at 2.) Plaintiff also contends
that he asked permission “to delay his substantive
response . . . by way of his Rule 56(d) response.”
to accept a brief or affidavits filed in violation of a Court
order is within the Court's discretion. The Court will
exercise that discretion in this case to allow
Plaintiff's Supplemental Response. Although Plaintiff is
a frequent civil litigator in this Court and has been an
active class representative in an ongoing class action for
over thirteen years, he remains pro se. See Searcy v.
Audens, Case No. 1:04-cv-00488-LMB; Searcy v. Ada
County, Case No. 1:06-cv-00001-BLW; Searcy v.
Williamson, Case No. 1:06-cv-00110-BLW; Searcy v.
Idaho State Board of Corrections, Case No.
1:10-cv-00166-CWD; Searcy v. Thomas, Case No.
1:10-cv-00294-EJL; see also Balla v. IDOC, Case No.
1:81-cv-01165-BLW (D. Idaho). Pro se plaintiffs are
“bound by ...