Bartlett v. Nieves et al

Filing 109

ORDER RE MOTION TO STAY JUDGMENT, OPEN DISCOVERY AND ALLOW SUPPLEMENTAL BRIEFING ON RETALIATORY ARRESTS: Plaintiffs Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on Retaliatory Arrests at Docket 104 is DENIED. The Clerk of Court is directed to reinstate the final judgment accordingly. (See Order for details). Signed by Judge Sharon L. Gleason on 10/02/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

RUSSELL P. BARTLETT,
Plaintiff,
v.
LUIS A. NIEVES, in his personal
capacity and BRYCE L. WEIGHT, in
his personal capacity,

Case No. 4:15-cv-00004-SLG

Defendants.

ORDER RE PLAINTIFF’S MOTION TO STAY JUDGMENT, OPEN DISCOVERY
AND ALLOW SUPPLEMENTAL BRIEFING ON RETALIATORY ARRESTS
Before the Court at Docket 104 is Plaintiff Russell P. Bartlett’s Motion to Stay
Judgment, Open Discovery and Allow Supplemental Briefing on Retaliatory
Arrests. Defendants Luis A. Nieves and Bryce L. Weight responded in opposition
at Docket 107.

Mr. Bartlett replied at Docket 108.

Oral argument was not

requested and was not necessary to the Court’s decision.
Mr. Bartlett’s case is on remand to this Court from the Ninth Circuit. 1 After
the Supreme Court rendered its opinion in this case, 2 the Ninth Circuit issued its
mandate on June 20, 2019 3. Consistent with that mandate, this Court issued a

1

Docket 100.

2

Nieves v. Bartlett, 139 S. Ct. 1715 (2019).

3

Docket 101.

notice of intent to reinstate the judgment on June 28, 2019. 4 In response to the
notice of intent, Mr. Bartlett filed the pending motion.
DISCUSSION
The Ninth Circuit remanded to this Court “for further proceedings consistent
with the Supreme Court’s opinion.” 5 In its ruling, the Supreme Court found that
“Bartlett’s retaliation claim cannot survive summary judgment.” 6 This Court is
bound by the Supreme Court’s holding and denies Mr. Bartlett’s motion on this
basis.
Moreover, even if this Court were not bound by the Supreme Court’s ruling,
Mr. Bartlett has failed to show that he was diligent in pursuing the discovery he
now seeks and has not demonstrated that good cause exists to reopen discovery
and allow supplemental briefing on the issue of retaliatory arrest.
Mr. Bartlett brought this action on March 2, 2015. 7 Fact discovery closed on
January 15, 2016. 8 Both parties moved for summary judgment prior to the March
29, 2016 deadline for dispositive motions. 9 Mr. Bartlett now asks this Court to

4

Docket 102.

5

Bartlett v. Nieves, 926 F.3d 1179, 1180 (9th Cir. 2019); Docket 100.

6

Nieves, 139 S. Ct. at 1727.

7

Docket 1.

8

Docket 14 at 3.

9

Docket 38, 46, and 60.

Case No. 4:15-cv-00004-SLG, Bartlett v. Nieves et al.
Order re Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on
Retaliatory Arrests
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reopen fact discovery and permit supplemental briefing on summary judgment
issues more than three years later.
The Court evaluates Mr. Bartlett’s request under Fed. R. Civ. P. 16(b)
governing modifications to the Court’s pretrial schedule. Under Fed. R. Civ. P.
16(b), the Court’s pretrial scheduling order can only be modified to reopen
discovery “for good cause.” 10 The “good cause” inquiry “primarily considers the
diligence of the party seeking the amendment.” 11 The Court “may modify the
pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party
seeking the extension.’” 12 While “prejudice to the party opposing the modification
might supply additional reasons to deny a motion, the focus of the inquiry is upon
the moving party’s reasons for seeking modification . . . [and] if that party is not
diligent, the inquiry should end.” 13
Mr. Bartlett must show that he diligently sought this discovery when
discovery was open in 2015.

Although Mr. Bartlett had ample reason and

opportunity to then seek the discovery he now requests, he failed to do so. Ford
v. City of Yakima governed the issue of retaliatory arrests in this Circuit at the time

10

Fed. R. Civ. P. 16(b)(4); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
609 (9th Cir 1992).

11

Mammoth Recreations, Inc., 975 F.2d at 609.

12

Id. (quoting Fed. R. Civ. P. 16 advisory committee notes to 1983 amendment).

13

Id.

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Order re Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on
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the parties were engaged in discovery. 14 Under Ford, Mr. Bartlett needed to show
that “the officers’ desire to chill his speech was a but-for cause” of his arrest. 15 The
evidence that Mr. Bartlett now seeks—“evidence that he was arrested when
otherwise similarly situated individuals not engaged in protected speech had not
been” 16—was pertinent to causation under Ford. 17 Mr. Bartlett does not dispute
that the requested evidence was relevant under Ford nor does he contend that he
diligently sought to obtain such evidence during the discovery period.
Instead, Mr. Bartlett asserts that because the Supreme Court created a “new
exception to the legal framework for arrests retaliating against the exercise of free
speech rights,” he “should have an opportunity to address this exception.” 18

14

706 F.3d 1188 (9th Cir. 2013). Admittedly, this Court did not evaluate Mr. Bartlett’s
retaliatory arrest claim under Ford; accordingly, its grant of summary judgment for the
troopers was reversed. See Bartlett v. Nieves, 712 Fed. Appx. 613, 616 (9th Cir. 2017).
Nevertheless, the Court did not rule on summary judgment until after discovery closed
and its holding did not preclude Mr. Bartlett from pursuing evidence relevant under Ford
during discovery.

15

Id. at 1193.

16

Docket 104 at 2.

17

See, e.g., Morse v. S. F. Bay Area Rapid Transit Dist., No. 12-cv-5289-JSC, 2014 WL
572352, at *29 (N.D. Cal. Feb. 11, 2014) (“The nature of Plaintiff’s arrest reasonably
suggests a retaliatory motive. It is undisputed that although a dozen or so other journalists
were also detained in the protest group . . . every journalist except Plaintiff was released
without even a citation.”); Mam v. City of Fullerton, No. 11-cv-1242-JST, 2013 WL 951401,
at *5–6 (C.D. Cal. Mar. 12, 2013) (“[T]he only difference between Mam and those near
him was the cell phone being used to record . . . a rational trier of fact could conclude that
Hampton’s seizure of Mam, though supported by probable cause, was motivated by
Mam’s videotaping.”).
18

Docket 108 at 2.

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Order re Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on
Retaliatory Arrests
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However, the “new exception” that the Supreme Court held at best puts Mr. Bartlett
in the situation he was in during discovery when Ford was in effect: his claim might
not be barred by law and the issue of causation would go to a trier of fact. As the
Ninth Circuit held in this case, under Ford, Mr. Bartlett could have proceeded with
his claim of retaliatory arrest with the question of causation “determined by a trier
of fact” even when the officers had probable cause for the arrest. 19 Since then,
the Supreme Court has adopted a “no-probable-cause rule,” concluding that
“[a]bsent such a showing, a retaliatory arrest claim fails.” 20 The Supreme Court
recognized “a narrow qualification . . . for circumstances where officers have
probable cause to make arrests, but typically exercise their discretion not to do
so.” 21 After “making the required showing [for the exception], the plaintiff’s claim
may proceed in the same manner as claims where the plaintiff has met the
threshold showing of the absence of probable cause,” 22 i.e., if he met the
exception, Mr. Bartlett could proceed as he would have under Ford.

19

Docket 93 at 4–6; Bartlett v. Nieves, 712 Fed. Appx. 613, 616 (9th Cir. 2017) (quoting
Ford, 706 F.3d at 1194).

20

Nieves, 139 S.Ct. at 1725.

21

Id. at 1727.

22

Id. (emphasis added).

Case No. 4:15-cv-00004-SLG, Bartlett v. Nieves et al.
Order re Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on
Retaliatory Arrests
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Thus, the Supreme Court’s decision does not provide Mr. Bartlett a new
avenue for pursing his retaliatory arrest claim. For this additional reason, the Court
denies Mr. Bartlett’s motion.
CONCLUSION
In light of the foregoing, Plaintiff’s Motion to Stay Judgment, Open Discovery
and Allow Supplemental Briefing on Retaliatory Arrests at Docket 104 is DENIED.
The Clerk of Court is directed to reinstate the final judgment accordingly.
DATED this 2nd day of October, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

Case No. 4:15-cv-00004-SLG, Bartlett v. Nieves et al.
Order re Motion to Stay Judgment, Open Discovery and Allow Supplemental Briefing on
Retaliatory Arrests
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