McCoy v. Aramark Correctional Services

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         This 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).

         I. BACKGROUND

         Plaintiff 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. (Doc. 149.)

         Plaintiff's 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. 156.)

         The 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).

         Plaintiff 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.)

         A 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.

         Plaintiff 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.

         II. LEGAL STANDARDS

         When a 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 Cir. 1991).

         Under 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 party. Id.

         III. DISCUSSION

         The 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 ...