United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiff's motions for
summary judgment and for leave to resubmit filing (Docs. 144;
156), and defendants' motions to strike or alternatively
for leave to respond (Docs. 147; 153).
is an inmate incarcerated at El Dorado Correctional Facility.
Defendants are a contract manager for the Kansas Department
of Corrections and a dietician formerly under contract with
the Department. Defendant Allen moved for summary judgment on
November 12, 2018. (Doc. 127.) Defendant Berry moved for
summary judgment on November 13, 2018. (Doc. 132.) Plaintiff
submitted his response to defendant Allen's motion to
prison staff on December 6, 2018, electronically filed on
December 7, 2018. (Doc. 146.) Plaintiff submitted his
response to defendant Berry's motion to prison staff on
December 27, 2018, electronically filed on December 28, 2018.
response to defendant Allen follows a one-page filing styled
as both a response to defendant Allen's motion and as a
motion for summary judgment against defendant Allen. (Doc.
144.) The next filing is plaintiff's memorandum in
support of his motion for summary judgment. (Doc. 145.)
Defendant Allen, in Doc. 147, moves to strike plaintiff's
motion for summary judgment (Doc. 144), memorandum in support
(Doc. 145), and response to defendant Allen's motion for
summary judgment (Doc. 146). Defendant Berry moves to strike
plaintiff's memorandum in opposition (Doc. 149) to
defendant Berry's motion for summary judgment. (Doc.
153.) Plaintiff moves for leave to resubmit his response to
defendant Berry's motion for summary judgment. (Doc.
core of this dispute is that plaintiff's filings appear
substantively similar to plaintiff's previously-filed
memorandum in support of summary judgment against defendant
Allen (Doc. 73.), and plaintiff's unconventional approach
to filing results in the same document being labeled as both
a memorandum supporting plaintiff's motion summary
judgment and as a memorandum opposing defendants' motions
for summary judgment. This treatment then creates two
different deadlines for defendants to respond in both
opposition and reply to the same document. See D.
Kan. Rule. 6.1(d).
submitted his first motion for summary judgment against
defendant Allen to prison staff on August 31, 2017,
electronically filed on September 2, 2017. (Doc. 72.)
Plaintiff filed his supporting memorandum on the same day.
(Doc. 73.) The court denied plaintiff's motion for
summary judgment on September 19, 2018. (Doc. 121.)
review of the filings in this case shows that while the
substantive analysis of plaintiff's responses and
supporting memoranda are nearly identical to plaintiff's
supporting memorandum for his previously-denied motion for
summary judgment, plaintiff has identified different
contested facts as to both defendants. (Compare Doc.
146, at 4-5 (discussing 7 fact paragraphs of defendant
Allen's motion), with Doc. 149 at 4-8
(discussing 97 fact paragraphs of defendant Berry's
motion).) Defendants, understandably confused by the deadline
conflicts created by the apparent filing of the same document
as both motion and memorandum in opposition, have asked this
court to strike plaintiff's filings or otherwise grant
leave to respond. Defendant Allen notes that the court
already denied plaintiff's first motion for summary
judgment and further argues that the court set a dispositive
motion deadline of November 13, 2018 in its order denying
plaintiff's motion for scheduling order. (Doc. 126.)
Defendant Berry notes that plaintiff's response
memorandum is also styled as supporting a motion for summary
judgment despite there being no corresponding motion for the
memorandum to support. Defendant Berry further argues that
plaintiff's response is untimely as not filed on or by
December 4, 2018.
responds to defendant Berry's motion to strike by stating
that he did not receive defendant Berry's motion for
summary judgment until December 6, 2018, and pursuant to the
Prison Mailbox Rule his response was not due until December
27, 2018, so his response was timely submitted. Plaintiff
further moves for leave to resubmit his motion for summary
judgment against defendant Berry, arguing that his motion was
not electronically filed with his memorandum when submitted
to staff, and attaches his one-page motion for summary
judgment. Plaintiff responds to defendant Allen's motion
by arguing that his second motion for summary judgment is not
identical, that only parts of the second motion are similar
to his first motion, and that the court denied his first
motion without prejudice.
plaintiff proceeds pro se, the court construes his or her
filings liberally, but does not assume the role of an
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Federal Rule of Civil Procedure 56, a party moving for
summary judgment must show that there is no genuine dispute
as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56. Factual
positions must be supported by citation to the record or
evidence, including documents and affidavits, or by showing
that cited materials do not establish the presence or absence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support a fact. Fed.R.Civ.P. 56(c)(1).
A party moving for summary judgment must support factual
statements by referring with particularity to portions of the
record on which the party relies, and properly-supported
facts will be deemed admitted unless specifically
controverted in opposition. D. Kan. Rule 56.1. Any opposition
must similarly support factual contentions by referring with
particularity to the record or risk the moving party's
statements being admitted as not properly opposed.
Id. A moving party's reply to a
properly-supported opposition must similarly respond to any
additional statement of material facts by the non-moving
court recognizes defendants' difficulty in handling pro
se plaintiff's unconventional approach to summary
judgment, as well as the difficulty of plaintiff's
circumstances, which place precise electronic filing largely