Berra v. Kirby

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON LEROY K. BERRA, NO. 2:20-CV-0013-TOR 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT KIRBY, Spokane County Deputy Custody Officer, GLADHEART, Spokane County Deputy Custody Officer, and PURCELL, Spokane County Deputy Custody Officer SGT, 13 Defendants.

16 BEFORE THE COURT is Defendants’ Motion for Summary Judgment (ECF No. 16). This matter was submitted for consideration without oral argument.

18 The Court has reviewed the record and files herein, and is fully informed.

19 // // 1 BACKGROUND 2 Defendants’ Motion was filed on July 7, 2020 and was noted for a hearing on August 26, 2020. ECF No. 16. Under this District’s Local Rules, Plaintiff had thirty days to respond to the Motion. LCivR 7(c)(2)(A)(ii). On July 14, 2020, Plaintiff filed a Motion for Extension of Time to File Response, requesting sixty days. ECF No. 24. The Court denied this Motion because the Washington State Penitentiary law library was open, contrary to Plaintiff’s claim that it was closed.

8 ECF No. 27. On August 11, 2020, Plaintiff again filed a Motion for Extension of Time to file a Response. ECF No. 28. The Court granted this Motion because Defendants did not contest that Plaintiff was in temporary quarantine due to COVID-19. ECF No. 32. The Court ordered Plaintiff to file a response by September 21, 2020. Id. 13 Plaintiff was provided the notice required by Rand v. Rowland, 154 F.3d 952 14 (9th Cir. 1998) (en banc). ECF No. 23. Plaintiff failed to file any response.

15 DISCUSSION 16 Failure to comply with filing deadlines “may be deemed consent to the entry of an order adverse to the party who violates these rules.” LCivR 7(e). Because Plaintiff’s extended filing date on Defendants’ Motion for Summary Judgment has now passed and Plaintiff failed to file any opposition, the Court deems Plaintiff to have consented to entry of an Order Granting Summary Judgment pursuant to LCivR 7(e).

3 Substantively, Plaintiff lacks sufficient evidentiary proof to support his allegations, thus, also warranting summary judgment for Defendants. Fed. R. Civ. 5 P. 56(e)(3).

6 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” The good faith standard is an objective one, and good faith is demonstrated when an individual “seeks appellate review of any issue not frivolous.” See Coppedge v. United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. § 1915, an appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

13 Accordingly, the Court hereby revokes Plaintiff’s in forma pauperis status.

14 If Plaintiff seeks to pursue an appeal, he must pay the requisite filing fee.

15 ACCORDINGLY, IT IS HEREBY ORDERED: 16 1. Defendants’ Motion for Summary Judgment, ECF No. 16, is 17 GRANTED.

18 2. The Complaint and all claims against Defendants are dismissed with 19 prejudice. l 3. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of 2 this Order would not be taken in good faith and would lack any arguable 3 basis in law or fact.

4 4. Plaintiff's in forma pauperis status is hereby REVOKED.

5 The District Court Executive is directed to enter this Order, enter judgment 6|| accordingly, furnish copies to the parties, and CLOSE the file.

7 DATED October 9, 2020. ‘| Mea %. oP: sins 0. Keer 9 THOMAS O. RICE <=> United States District Judge ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY