United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill U.S. District Court Judge
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.
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.
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.
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.
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.
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.
Motion for An Extension (Dkt. 23)
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) allows the Court to grant relief from a final judgment