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Searcy v. Walden

United States District Court, D. Idaho

August 29, 2017

BARRY SEARCY, Plaintiff,
SCOTT WALDEN, Idaho Correctional Industries Production Manager; JENNIFER PANTNER, ISCI Correctional Officer; DOES 1 THROUGH 10, fictitiously named persons, in their individual and official capacities; and IDAHO CORRECTIONAL INDUSTRIES, in its official capacity as an entity of the State of Idaho, Defendants.



         Plaintiff, 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. 8.)

         Now 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.)

         Having 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 supplemental briefs.


         Discovery 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.)

         Plaintiff's 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.)

         Over 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.

         The Motion for Summary Judgment became ripe on February 21, 2017, when Defendants filed their reply brief. (See Dkt. 27.)

         Following 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.)

         Defendants 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.)

         Plaintiff 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.” (Id.)

         Whether 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 ...

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