McKinnon v. Nikula

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ARTHUR MCKINNON, CASE NO. 3:20-cv-05367-BHS-DWC 11 Plaintiff, ORDER 12 v.

13 TAMMY NIKULA, et al., 14 Defendants.

15 16 Plaintiff brought this action under 42 U.S.C. § 1983. Dkt. 5. Before the Court is 17 Defendants’ motion for summary judgment (Dkt. 57). As discussed below, the Court will allow 18 Plaintiff to file a supplemental response to the motion for summary judgment. 19 Plaintiff filed an amended complaint whose thrust is that Defendants failed to adequately 20 treat his lower back problems and associated pain. See Dkt. 5, at 7. Defendants answered and the 21 Court issued a scheduling order. Dkts. 35–36. Defendants filed their motion for summary 22 judgment. Dkt. 57. Initially, Plaintiff did not respond to the motion. 23 24 1 The Court issued an order for supplemental briefing from Defendants on exhaustion. Dkt. 2 65. Plaintiff filed a response to the motion for summary judgment and supplement. Dkt. 69. 3 Defendants replied. Dkt. 70. 4 In its order for supplemental briefing, the Court stated that, when ruling on the motion for

5 summary judgment, it would consider Plaintiff’s amended complaint as evidence because he 6 signed it under penalty of perjury. Dkt. 65, at 2 & n.1. However, when signing the amended 7 complaint, Plaintiff stated only that he “believe[d] the facts allege[d] to be true to the best of 8 [his] knowledge.” Dkt. 5, at 18. Thus, he did not sign it under penalty of perjury (i.e., verify it). 9 See id.; see also Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (verification of 10 complaint requires the plaintiff to sign it under penalty of perjury). Because Plaintiff did not 11 verify the amended complaint, the Court cannot consider it as evidence when ruling on 12 Defendants’ motion for summary judgment. Moran v. Selig, 447 F.3d 748, 759 (9th Cir. 2006); 13 Johnson v. Schneider, No. CV 14-7429-CJC (KES), 2016 WL 3033691, at *1 (C.D. Cal. Apr. 14 21, 2016), report and recommendation adopted, 2016 WL 3033690 (C.D. Cal. May 26, 2016).

15 The Court’s assertion that it would consider the amended complaint as evidence could 16 have led Plaintiff to believe that he had more evidentiary support for his response to the motion 17 for summary judgment than he truly did. In an abundance of caution, Plaintiff should have an 18 opportunity to file a supplemental response to the motion for summary judgment. Plaintiff may 19 submit additional evidence in support of his supplemental response. And the Court will allow 20 Defendants to submit a supplemental reply to the supplemental response. 21 Accordingly, the Court ORDERS as follows: 22 1. On or before October 15, 2021, Plaintiff may file a supplemental response to 23 Defendants’ motion for summary judgment (Dkt. 57).

24 1 2. The supplemental response, whether handwritten of typewritten, must comply 2 with the Local Civil Rules governing form of filings, including Rules governing text size, margin 3 size, and line spacing. Local Civil Rule 10(e)(1). 4 3. Plaintiff’s supplemental response must be signed under penalty of perjury as

5 provided in 28 U.S.C. § 1746(2). 6 4. Plaintiff may submit additional evidence in support of his supplemental response. 7 Any additional evidence in the form of an affidavit or declaration must be signed under penalty 8 of perjury as provided in 28 U.S.C. § 1746(2). 9 5. On or before October 22, 2021, Defendants may file a supplemental reply to 10 Plaintiff’s supplemental response. 11 6. Failure to comply with this order may result in the imposition of any appropriate 12 sanction and/or a recommendation that this case be dismissed. 13 The Clerk IS DIRECTED TO re-note Defendants’ motion for summary judgment (Dkt. 14 57) for October 22, 2021.

15 Dated this 15th day of September, 2021. 16 A 17 David W. Christel United States Magistrate Judge 18 19 20 21 22 23 24