Richard Pike v. Sean Munson, in his official

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD PIKE,
Plaintiff - Appellee,
v.
SEAN MUNSON, in his official and
individual capacities; RICK KEEMA, in
his official and individual capacities; JIM
PITTS, in his official and individual
capacities; ELKO COUNTY SHERIFF’S
OFFICE, a government entity; ELKO
COUNTY, Nevada, a government entity,
Defendants - Appellants.
No. 13-16075
D.C. No. 3:12-cv-00283-RCJ-VPC
MEMORANDUM*
RICHARD PIKE,
Plaintiff - Appellee,
v.
J. BRAD HESTER, in his official and
individual capacities,
Defendant - Appellant,
No. 13-16083
D.C. No. 3:12-cv-00283-RCJ-VPC
FILED
DEC 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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And
SEAN MUNSON, in his official and
individual capacities; RICK KEEMA, in
his official and individual capacities; JIM
PITTS, in his official and individual
capacities; ELKO COUNTY SHERIFF’S
OFFICE, a government entity; ELKO
COUNTY, Nevada, a government entity,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted November 17, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.
The defendants appeal the district court’s grant of summary judgment on
their affirmative defense of qualified immunity in Richard Pike’s favor. We have
jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530
(1985).
The district court plainly erred in ruling that defendants’ opposition to the
motion for summary judgment was untimely. Rule 6 of the Federal Rules of Civil
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Procedure applies to computing any time period specified in any local rule, see
Fed. R. Civ. P. 6(a). If a party makes service by electronic means, the specified
time period for a response is extended for three additional days. See Fed. R. Civ.
P. 6(d); 5(b)(2)(E). Pike served his motion for summary judgment by electronic
means on April 2, 2013. Under local rules, a response is due within 21 days after
that date. See D. Nev. Civ. R. 7–2(e). Reading these rules together, the
defendants’ response was due April 26, 2013. The defendants’ response was
therefore timely filed on that date. Because it erred in determining that defendants’
response was untimely, the district court also erred in failing to consider the
defendants’ response and in failing to construe the facts in the light most favorable
to the defendants. Fed. R. Civ. P. 56; Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014).
Each party will bear its own costs on appeal.
VACATED AND REMANDED.
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