Solvey v. Zepp

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT (ECF NO. 55) BE GRANTED AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 53) BE DENIED

OBJECTIONS DUE ON OR BEFORE OCTOBER 4, 2023

GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE.

I. BACKGROUND

Stanley H. Solvey (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on January 14, 2020, against defendant Dr. Andrew Zepp (“Defendant”) for refusing to provide Plaintiff with sufficient pain medication for Plaintiff's testicular cyst as he awaited surgery from February 5, 2019 to March 25, 2019, in violation of the Eighth Amendment. (ECF Nos. 14 & 39.)

Currently before the court are the parties' cross motions for summary judgment. For the reasons set forth below, the court recommends that Plaintiff's motion for summary judgment be denied, and Defendant's cross motion for summary judgment be granted.

II. PROCEDURAL BACKGROUND

The parties' cross motions for summary judgment are fully briefed and submitted on the record, pursuant to Local Rule 230(l), which provides as follows:

Motions in Prisoner Actions. All motions, except motions to dismiss for lack of prosecution, filed in actions wherein one party is incarcerated and proceeding in propria persona shall be submitted upon the record without oral argument unless otherwise ordered by the Court. Such motions need not be noticed on the motion calendar. Opposition, if any, to the granting of the motion shall be served and filed by the responding party not more than twenty-one (21) days after the date of service of the motion. A responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question. Failure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions. The moving party may, not more than fourteen (14) days after the opposition has been filed in CM/ECF, serve and file a reply to the opposition. All such motions will be deemed submitted when the time to reply has expired

Local Rule 230(l).

A. Plaintiff's Motion for Summary Judgment (ECF No. 53.)

On June 9, 2022, Plaintiff filed a motion for summary judgment. (ECF No. 53.) On June 27, 2022, Defendant Dr. Zepp filed a cross motion for summary judgment and opposition to Plaintiff's motion for summary judgment. (ECF No. 55.) Under Local Rule 230(l), the deadline for Plaintiff to file a reply to the opposition was July 14, 2022 (14 days after the opposition was filed, plus 3 additional days under Fed.R.Civ.P. 6(d)). Plaintiff failed to file a timely reply and therefore, under Local Rule 230(l), Plaintiff's motion for summary judgment was deemed submitted on July 14, 2022, when Plaintiff's time to reply expired.

B. Defendant's Cross Motion for Summary Judgment (ECF No. 55.)

On June 27, 2022, Defendant filed a cross motion for summary judgment. (ECF No. 55.)

On September 12, 2022, after being granted two extensions of time, Plaintiff filed an opposition to the cross motion. (ECF Nos. 61, 65, 69.) On October 14, 2022, after being granted two extensions of time, Defendant filed a reply to the opposition. (ECF Nos. 72, 74, 75.) Therefore, under Local Rule 230(l), Defendant's cross motion for summary judgment was deemed submitted on October 14, 2022, when Defendant filed his reply to the opposition.

C. Plaintiff's Surreply (ECF No. 78.)

On December 15, 2022, after the cross motions for summary judgment were submitted on the record, Plaintiff filed a motion for a finding of perjury and for sanctions against Defendant. (ECF No. 78.) On January 5, 2023, Defendant filed an opposition to the motion. (ECF No. 79.) On January 10, 2023, Plaintiff filed an addendum to the motion. (ECF No. 80.) On January 17, 2023, Plaintiff filed a reply to Defendant's opposition. (ECF No. 81.)

On February 17, 2023, the Court accepted Plaintiff's motion for a finding of perjury and for sanctions as a permissible surreply to Defendant's October 14, 2022 reply, and ordered Defendant to file an additional briefing in opposition to the surreply. (ECF No. 82.)

On March 7, 2023, Plaintiff requested leave to submit a reply to Defendant's additional briefing, (ECF No. 84), and on March 15, 2023, the Court denied Plaintiff's request, (ECF No. 85).

On March 31, 2023, Defendant filed his additional briefing in opposition to the surreply. (ECF No. 89.)

III. PLAINTIFF'S SURREPLY (ECF No. 78.)

It is well-established that the purpose of a surreply is to “enable the nonmovant to contest matters presented for the first time in the opposing party's reply.” Klayman v. Fox (D.D.C. June 5, 2019, Civil Action No. 18-1579 (RDM)) 2019 U.S.Dist.LEXIS 94299, at *43 (quoting Nix El v. Williams, 174 F.Supp.3d 87, 92 (D.D.C. 2016)). “The purpose of a surreply is to afford ‘the nonmoving party . . . an opportunity to respond to new material raised for the first time in the movant's reply.'” United States v. Bruce, No. 1:18-CR-00464-JCH, 2018 U.S.Dist.LEXIS 110810, 2018 WL 3232353, at *1 (D.N.M. July 2, 2018) (Herrera, J.) (quoting Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005)). “‘[N]ew material' means ‘new evidence and new legal arguments' raised in the movant's reply brief.” Id. A district court may only allow a surreply to be filed “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, No. CV-F-05-869 REC/TAG (E.D. Cal. Nov. 9, 2005), 2005 WL 3031136 at *1.

Plaintiff's surreply brings motions under Rules 12(c), 56(h) and 11 of the Federal Rules of Civil Procedure, requesting a finding of perjury in declarations and interrogatories submitted by Defendant Dr. Zepp and Defendant's expert declarant Dr. Bennett Feinberg, with imposition of sanctions. In the alternative, Plaintiff seeks judgment against Defendant Zepp due to bad faith conduct, and findings of fraud, malice, oppression, and equitable estoppel. Plaintiff contends that Defendant Zepp has submitted several falsified and perjured declarations and a response to interrogatories submitted in opposition to the pending motion for summary judgment.

Given the limited purpose of a surreply, the Court shall initially determine whether the matters raised in Plaintiff's surreply are properly brought.

A. Plaintiff's request for the court to find perjury, unclean hands and bad faith

To the extent that Plaintiff seeks a court finding of perjury, it is not appropriate for the Court to consider Plaintiff's motion as part of the summary judgment analysis, where the Court is precluded from deciding matters of credibility of the evidence. Therefore, the Court shall not address the perjury issue here. The proper way for Plaintiff to challenge Defendant's evidence is with his own evidence, through proper motions or oppositions to motions, and at trial, by attempting to demonstrate Defendant's alleged lack of credibility through cross-examination and reference to the evidence. Wilkins v. Barber, No. 2:19-cv-1338 WBS KJN P (E.D.Cal. Sep. 7, 2021), 2021 U.S.Dist.LEXIS 169407, at *9-10. Plaintiff cannot simply question Defendant's credibility to foreclose summary judgment. McGiboney v. Corizon, No. 1:18-cv-00529-DCN (D. Idaho Mar. 22, 2021), 2021 U.S.Dist.LEXIS 53475, at *30 (citing Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001)). Instead, the nonmoving party “must go beyond the pleadings and by its own evidence ‘set forth specific facts showing that there is a genuine issue for trial.'” Id. (citing Far Out Productions, Inc., 247 F.3d at 997(quoting Fed.R.Civ.P. 56(e)); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (noting that the nonmoving party must “identify with particularity the evidence that precludes summary judgment.”)). “If the evidence is colorable, or is not significantly probative, summary judgment may be granted.” Id. (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986)).

In addition, objections to the evidence at the summary judgment phase are viewed with disfavor. Hollis v. Sloan, No. 2:08-cv-2674 GEB KJN P) (E.D. Cal. Oct. 24, 2012), 2012 U.S.Dist.LEXIS 153681, at *3.) “If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, [a] motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits.” Id. (citing Dawe v. Corrections USA, 2010 U.S.Dist.LEXIS 16454, 2010 WL 682321, *7 (E.D. Cal. 2010) (citing 5A Wright & Miller, Federal Practice and Procedure: Civil 2d §1380.)) Here, Plaintiff moves to strike or preclude certain defenses and evidence found in Dr. Zepp's and Dr. Feinberg's declarations, based on unclean hands and bad faith. Plaintiff's motions to strike shall be denied.

Importantly, Plaintiff's surreply fails to accomplish the main purpose of a surreply, which is to provide Plaintiff an opportunity to respond to new material raised for the first time in Defendant's reply. Plaintiff's surreply does nothing more than raise objections to Defendant's evidence that Plaintiff either made previously or had the opportunity to make previously. In fact, Plaintiff states in the surreply that the “evidence of this perjury and falsified declarations is meticulously presented in Plaintiff's ‘Motion for summary judgment: opposition/reply' (with cites to the evidence and a declaration with a memorandum.) Please refer to that document.”...