Flowers #125290 v. Lawrence et al

Filing 71

ORDER - Denying Defendants' 60 Motion to Stay Discovery regarding the issue of exhaustion of administrative remedies. As to all other issues, IT IS ORDERED granting Defendants' 60 Motion to Stay Discovery and to Continue Deadlines: Las t day to complete discovery and supplement discovery - 90 days after resolution of Defendants' 58 Motion for Summary Judgment. Dispositive motion deadline - 120 days after resolution of Defendants' 58 Motion for Summary Judgment. Pl aintiff's Rule 56(F) 66 Motion for Continuance is granted. Plaintiff shall file his Response no later than December 30, 2015. Plaintiff's 70 Motion for Enlargement of Time for Extension of Time to Answer Summary Judgement/Judgement on the Pleadings (First Request)," is denied as moot. Signed by Magistrate Judge Eileen S Willett on 11/24/2015. (ATD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Eulandas J. Flowers,

No. CV-14-08184-PCT-JAT (ESW)
Plaintiff,

10
11

v.

12

ORDER

Sandra Lawrence, et al.,

13

Defendants.

14
15

Plaintiff is a prisoner confined in the Arizona State Prison Complex-Eyman in

16

Florence, Arizona. He filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983

17

(Doc. 1). By Order issued December 2, 2014 (Doc. 9), the Court screened Plaintiff’s

18

Complaint pursuant to 28 U.S.C. § 1915(A) to determine legal sufficiency. Plaintiff

19

sought to cure noted deficiencies by filing a Motion for Leave to File an Amended

20

Complaint (Doc. 10). By Order (Doc. 27) issued April 1, 2015, the Court screened the

21

proposed Amended Complaint (Doc. 11) and granted Plaintiff leave to amend his

22

Complaint.

23

Amendment prohibition against cruel and unusual punishment arising from excessive

24

force used against Plaintiff by Defendant Young and a failure to intercede by Defendants

25

L. Marshall and Batchlor. Count II of the Amended Complaint alleges a violation of the

26

Eighth Amendment as well as a violation of Article 2 of the Arizona Constitution.

27

Plaintiff alleges that he was denied basic necessities and medical treatment as a result of

28

the actions and omissions of Defendants S. Lawrence, Contreas, L. Marshall, Coleman,

Count I of the Amended Complaint alleges a violation of the Eighth

1

Young, Dean, Shane and Batchlor committed while Plaintiff was on defecation watch.

2

Defendants L. Marshall, Young, Coleman, Contreas, S. Lawrence, Shane, Dean filed an

3

Answer (Docs. 29, 42, 48) to Plaintiff’s First Amended Complaint (Doc. 26). Service

4

was returned unexecuted as to Defendant Batchlor (Doc. 46).

5

Pursuant to the Court’s Order of April 1, 2015, Plaintiff is required to serve

6

Defendant Batchlor “within 120 days of the filing of the Amended Complaint or within

7

60 days of the filing of the Court’s Order, whichever is later . . . .” (Doc. 27 at 2). See

8

also Rule 4(m), Fed. R. Civ. P.; LRCiv 16.2(b)(2)(B)(i). Plaintiff has failed to timely

9

serve Defendant Batchlor. Therefore,

10

IT IS ORDERED that Plaintiff show cause no later than December 30, 2015 why

11

the First Amended Complaint should not be dismissed for failure to prosecute as to

12

Defendant Batchlor.

13

Pending before the Court are the following:

Defendants’ Motion to Stay

14

Discovery and to Continue Deadlines (First Request) (Doc. 60); Plaintiff’s Rule 56(F)

15

Motion for Continuance, Declaration in Support of Plaintiff’s Rule 56(F) Motion for

16

Continuance, and Memorandum of Law (Docs. 66, 67, 68); and Plaintiff’s “Motion for

17

Enlargement of Time for Extension of Time to Answer Summary Judgement/Judgement

18

on the Pleadings (First Request)” (Doc. 70).

19

determination of the issues.

Further briefing is unnecessary to a

20

By Order (Doc. 65) filed November 16, 2015, the Court extended Plaintiff’s time

21

to respond to Defendants’ Motion for Summary Judgment and Alternative Motion for

22

Judgment on the Pleadings on Count II to December 30, 2015. Therefore, Plaintiff’s

23

“Motion for Enlargement of Time for Extension of Time” (Doc. 70) will be denied as

24

moot.

25

Plaintiff’s Rule 56(F) Motion for Continuance (Doc. 66) will be granted. Plaintiff

26

has set forth good cause for the Court to extend Plaintiff’s time to respond to Defendants’

27

pending Motion for Summary Judgment.

28

outstanding on the issue of exhaustion of administrative remedies. Response time has

-2-

Plaintiff asserts that discovery remains

1

been extended to December 30, 2015 by Order (Doc. 65) filed November 16, 2015.

2

Defendants’ Motion to Stay Discovery and to Continue Deadlines (Doc. 60) will

3

be granted in part and denied in part. Defendants’ Motion for Summary Judgment

4

addresses the issue of exhaustion of administrative remedies. The Court in its discretion

5

will not further delay or stay discovery as discovery relates to the issue of exhaustion.

6

Any discovery necessary for a full consideration of the issue of exhaustion shall proceed

7

without delay. Discovery on the merits of Plaintiff’s underlying claims will be stayed.

8

Accordingly,

9

IT IS ORDERED denying Defendants’ Motion to Stay Discovery (Doc. 60)

10

regarding the issue of exhaustion of administrative remedies.

11

As to all other issues,

12

IT IS ORDERED granting Defendants’ Motion to Stay Discovery and to Continue

13

Deadlines (Doc. 60).

14

IT IS FURTHER ORDERED staying discovery unrelated to the issue of

15

exhaustion of administrative remedies pending the Court’s ruling on Defendants’ Motion

16

for Summary Judgment Based on Plaintiff’s Failure to Administratively Exhaust Claims

17

and Alternative Motion for Judgment on the Pleadings on Count II (Doc. 58).

18
19
20
21
22
23
24
25
26
27

Deadlines are reset as follows:
 Last day for Plaintiff to file expert witness list and reports – 30 days after
resolution of Defendants’ Motion for Summary Judgment (Doc. 58);
 Last day for Defendants to file expert witness list and reports – 60 days
after the resolution of Defendants’ Motion for Summary Judgment (Doc.
58);
 Last day to complete discovery and supplement discovery – 90 days after
resolution of Defendants’ Motion for Summary Judgment (Doc. 58);
 Last day to take depositions – 90 days after resolution of Defendants’
Motion for Summary Judgment (Doc. 58);

28

-3-

1
2
3
4
5
6
7
8
9
10

 Dispositive motion deadline – 120 days after resolution of Defendants’
Motion for Summary Judgment (Doc. 58);
 Joint proposed pretrial order deadline – August 24, 2016 or 30 days after
the Court’s ruling on any pending dispositive motion that does not dispose
of the case.
IT IS ORDERED granting Plaintiff’s Rule 56(F) Motion for Continuance (Docs.
66, 67, 68). Plaintiff shall file his Response no later than December 30, 2015.
IT IS ORDERED denying as moot Plaintiff’s Motion for Enlargement of Time for
Extension of Time to Answer Summary Judgement/Judgement on the Pleadings (First
Request)” (Doc. 70).
Dated this 24th day of November, 2015.

11
12
13
Honorable Eileen S. Willett
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-