Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barber v. Cox

United States District Court, D. Idaho

June 26, 2019

ANTHONY BARBER, Plaintiff,
v.
CPL. COX, SGT. NICODEMUS, D.W. McKAY, LT. D. MARTINEZ, and WARDEN RANDY BLADES, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill U.S. District Court Judge

         INTRODUCTION

         Before the Court is Plaintiff Anthony Barber's Motion for An Extension of Time (Dkt. 23) and his Motion for Appointment of Counsel Circumstances (Dkt. 21). For the reasons explained below, the Court will deny both motions.

         BACKGROUND

         Anthony Barber is an inmate in the custody of the Idaho Department of Corrections (“IDOC”). In August 2017, Barber sued defendants, alleging that his cellmate, Greg Nelson, forced oral sex on him repeatedly during June and July 2017. Barber says when he asked IDOC staff for help, defendants not only failed to protect him, but punished him with a Disciplinary Offense Report for engaging in sexual activity.

         On October 11, 2018, defendants moved for summary judgment. Dkt. 16. Barber says he asked a fellow inmate, Jody Carr, to prepare his response. Carr prepared the response, along with a cross-motion for summary judgment, and “sent them all back to him via the ISCC paralegal for him to read, sign, date, and file.” Carr Aff., Dkt. 21-1 at 1. Barber says he received the papers Carr prepared and that on October 21, 2018, he “filed” these documents “via the ISCC Paralegal . . . .” May 2, 2019 Letter Motion, Dkt. 23, at 1.

         The Court, however, did not receive any response. Further, on December 3, 2018, defendants filed a reply brief in which they expressly stated Barber had not opposed their motion. See Dkt. 18. Defendants served this reply brief upon Barber, so he should have been alerted at that time that neither the defendants nor the Court had received any response to the motion for summary judgment. Barber, however, took no action. He did not file anything with the Court indicating that he had intended to file (and thought he had, in fact, filed) a response. Nor did he seek an extension of time in which to track down and file his response.

         In the face of this silence, in February 2019, roughly two months after defendants filed their reply brief, the Court granted defendants' motion and entered judgment. The Court's order and judgment were mailed to Barber. See Dkts. 19, 20. Once again, Barber remained silent.

         It was not until May 2019 - three months after the Court entered judgment - that Barber filed his pending motions. Barber says he did not become aware that his response had not been filed with the Court until late April 2019. He thus asks the Court for an extension of time to so that he can “find/locate and/or draft & File a New One.” Dkt. 23, at 1. He also asks the Court to appoint counsel.

         DISCUSSION

         1. Motion for An Extension (Dkt. 23)

         Because the Court has already entered judgment in defendants' favor, it will construe Barber's motion for an extension as a motion to vacate under Federal Rule of Civil Procedure 60(b).

         Rule 60(b) allows the Court to grant relief from a final judgment or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.