Summary
granting motion to strike surreply filed without either prior request by movant or permission from the court
Summary of this case from Michaud v. DuncanOpinion
Case No. 99-3250-JTM
August 10, 2001
MEMORANDUM AND ORDER
This matter comes before the court on defendants' motion to dismiss, or, in the alternative, for summary judgment and motions to strike plaintiff's response and surreply. The motions are fully briefed and ripe for consideration. For the reasons set forth below, the court grants defendants' motion to strike plaintiff's response; grants defendants' motion to strike plaintiff's surreply; and grants defendants' motion for summary judgment.
I. Defendants' Motions to Strike
On December 21, 2000, defendants filed their motion to dismiss or for summary judgment and memorandum in support thereof. On February 8, 2001, in view of the fact that plaintiff had not responded to their motion, defendants filed a motion seeking an order, pursuant to D.Kan. Rule 7.4, that the court consider and decide the motion for summary judgment as an uncontested motion. On March 19, 2001, eighty-eight days after defendants filed the initial dispositive motion, plaintiff filed his response to the motion for summary judgment. Plaintiff did not seek leave of the court to file his untimely response and offered no explanation for the delay. Plaintiff, an inmate at the United States Disciplinary Barracks ("USDB"), Fort Leavenworth, Kansas, is proceeding in this matter pro se. The court recognizes that "[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court cannot assume the role of advocate for the pro se litigant. Id. "Indeed, a litigant's pro se status does not vitiate his obligation to comply with the Federal Rules of Civil Procedure." United States v. Ware, 172 F.R.D. 458, 459 (D.Kan. 1997) (citing Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995)). Although the Supreme Court has broadened the definition of "excusable neglect," see Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489 (1993), a pro se defendant's unfamiliarity with the legal system or ignorance of the law does not fall within the definition. United States v. Gibson, 832 F. Supp. 324, 327 (D.Kan. 1993). "Having chosen to file a civil action in the district court, [a pro se litigant] assumed the responsibility for complying with the rules of civil procedure." Chester v. Green, 120 F.3d 1091 (10th Cir. 1997). Pursuant to D.Kan. Rule 7.1(b), plaintiff has twenty days to respond to a motion to dismiss or for summary judgment. Even assuming the court would grant some leniency in view of plaintiff's status, an eighty-eight day delay is entirely unreasonable. The court accordingly will strike the untimely response. Pursuant to Rule 7.4, the court will treat the motion to dismiss or for summary judgment as an uncontested motion, which states that "uncontested motions . . . ordinarily will be granted without further notice." D. Kan. R. 7.4.
Defendants also move to strike plaintiff's "motion to support previous counter motion," which, in effect, is a surreply. The rules in this district do not provide for the filing of surreplies. See D. Kan. Rule 7.1. Therefore, the courts in this district do not permit surreplies without leave of the court. Humphries v. Williams Natural Gas Co., Case No. 96-4196-SAC, 1998 WL 982903, at *1 (D.Kan. Sept. 23, 1998). The court generally grants leave to file a surreply only in "rare circumstances" as "where a movant improperly raises new arguments in a reply." Id. "Such rules are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word." McShares, Inc. v. Barry, 979 F. Supp. 1338, 1341 (D.Kan. 1997). Plaintiff has offered no excuse or justification filing the surreply without leave, and defendants did not improperly raise new arguments in their reply. Therefore, the defendants' motion to strike plaintiff's surreply is granted, and the court will not rely on plaintiff's surreply in analyzing the defendants' motion to dismiss or for summary judgment.
II. Summary Judgment Standards for Uncontested Motions
The court will treat defendants motion to dismiss or for summary judgment as a motion for summary judgment pursuant to Rule 56. Defendants have submitted information outside the pleadings to support their motion and the court has considered such information. In such a situation, Rule 12(b) clearly states that the court should treat the motion as one for summary judgment to be disposed of as provided in Rule 56.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in a light most favorable to the opposing party. Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir. 1993). The moving party need not disprove the nonmoving party's claim or defense; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987). The party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party's allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
D. Kan. Rule 7.4 provides in relevant part: "If a respondent fails to file a response within the time required by Rule 7.1(b), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D. Kan. Rule 56.1 specifically addresses motions for summary judgment. Rule 56.1 references Rules 7.1 through 7.5 and states that motions for summary judgment are subject to the provisions set forth by those rules. Rule 56.1 further states that "[a]ll material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." In other words, when a party fails to respond to a motion for summary judgment, "all of the facts presented in the defendant's motion will be deemed uncontroverted." Joshua W. v. Board of Educ. of Wichita Pub. Schs., 13 F. Supp.2d 1199, 1205 (D.Kan. 1998).
III. Analysis
Plaintiff alleges that the Points Based Classification System ("PBCS") used by the USDB has resulted in his placement in maximum custody without a hearing in violation of his constitutional due process rights. The USDB reclassified plaintiff from medium custody to maximum custody under the PBCS after being found guilty by the disciplinary board of threatening conduct. Plaintiff further alleges that inmates receiving classification points under the PBCS are treated differently in violation of the equal protection clause of the United States Constitution. Both of these claims fail.
Prison inmates do not enjoy an independent constitutional right to a particular custody status. Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). However, a state may create a liberty interest in a custody status by establishing in its statutes or regulations substantive standards for classification which create an expectation of a particular status. Hewitt v. Helms, 459 U.S. 460 (1983). In Hewitt, the Court identified the two possible sources of a prisoner's protected liberty interests: either the Due Process Clause or state law. Id. at 466. Here, plaintiff claims that the USDB's PBCS created a liberty interest in a lower custody classification. However, according to Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293 (1995), plaintiff fails to establish that defendants infringed a liberty interest in violation of the Fourteenth Amendment.
In Sandin, the Court held, in the context of a procedural due process claim, that, despite mandatory language in prison regulations, a constitutionally protected liberty interest will generally be "limited to freedom from restraint which . . . imposes atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life." Id. at 484. The Court went on to hold that being placed in disciplinary segregation for thirty days did not impose an atypical and significant hardship. Id. Therefore, under Sandin, a reclassification from medium to maximum custody does not impose an actionable hardship. Even before Sandin, the Tenth Circuit "recognized that inmates are not entitled to a particular degree of liberty in prison, and that ordinarily a change in an inmate's prison classification . . . does not deprive the inmate of liberty." Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Because plaintiff had no protected liberty interest in his medium custody classification, he was not entitled to any particular process before his reclassification. The court thus grants defendants' motion for summary judgment as to this claim.
Plaintiff also claims an equal protection violation based upon defendants' application of the PBCS. An individual's Protection rights are implicated when the government treats him differently than it treats similarly situated individuals. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). If an individual cannot establish that he is a member of a protected class or that a governmental action has denied him a fundamental right, the court will uphold the government's conduct as long as its actions bear a rational relationship to a legitimate state purpose. Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). Applying this standard to the circumstances alleged by plaintiff, the court finds no markedly different treatment that might reasonably constitute arbitrary and capricious or non-rational action. Plaintiff's custody determinations appropriately reflected his misconduct and defendants apply such determinations equally to all inmates who conduct themselves in less than exemplary manners within the USDB. The court thus finds no genuine issue of material fact exists and concludes defendants are entitled to summary judgment on this claim.
IT IS THEREFORE ORDERED this ___ day of August, 2001 that defendants' motion for summary judgment (dkt. no. 23) is granted; defendants' motion to strike plaintiff's response (dkt. no. 29) is granted; and defendants' motion to strike plaintiff's surreply (dkt. no. 32) is granted.