Holt v. Nicholas et al

Filing 115

ORDER on Findings and Recommendations and Order Referring Matter Back to Magistrate Judge for Further Proceedings re 79 , 86 , 110 , signed by District Judge Anthony W. Ishii on 9/26/13. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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VIRGIL E. HOLT,

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CASE NO. 1:09-cv-00800-AWI-SAB (PC)
Plaintiff,

ORDER ON FINDINGS AND
RECOMMENDATIONS AND ORDER
REFERRING MATTER BACK TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS

Defendants.

(ECF Nos. 79, 86, & 110)

v.
R. NICHOLAS, et al.,

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Plaintiff Virgil E. Holt, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on May 4, 2009. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.1

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On June 11, 2012, Defendants filed a motion for summary judgment. Doc. No. 79. On

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August 1, 2012, Defendants requested supplemental briefing to comply with the new Ninth

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Circuit notice requirement. Doc. No. 86. On February 12, 2013, the Magistrate Judge issued a

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Findings and Recommendations (“F&R”), that recommended denying Defendants’ motion for

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summary judgment and denying Defendants’ request for supplemental briefing. Doc. No. 110.

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Neither party submitted objections to the F&R.

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After reviewing this case, the Court respectfully disagrees with the F&R. The F&R

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recommends denying summary judgment because Defendants’ motion was filed untimely. The

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F&R is correct that the motion is untimely. However, there are 21 defendants in this case, with

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The Court notes that this case was reassigned to a new Magistrate Judge in January 2013.

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claims based on excessive force, failure to decontaminate/provide medical care, and supervisory

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liability. A review of the summary judgment motion indicates that there are potentially

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meritorious arguments that could reduce the claims to be tried and significantly reduce the

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number of defendants. Further, Defendants are arguing that they are entitled to qualified

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immunity. Addressing qualified immunity prior to trial is preferable to addressing the issue for

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the first time during trial. Admittedly, until Plaintiff files an opposition, it is unknown whether

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summary judgment in favor of any claims or any Defendants ultimately will be granted. If

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Plaintiff creates genuine disputed issues of material fact for each claim and each Defendant, then

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this case will proceed against all 21 Defendants and all claims. However, given the issues

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involved and the potential to significantly narrow this case, the Court finds that permitting

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Defendants the opportunity to move for summary judgment, despite untimeliness, is appropriate.

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Further, in August 2012, an erroneous order issued that advised Plaintiff to either stand

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on his opposition to summary judgment or submit a new opposition. See Doc. No. 89. Plaintiff

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rightly stated that he had not filed an opposition. See Doc. No. 91. Plaintiff also indicated that

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he needed discovery responses from Defendants and that he had motions to compel that were

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pending. See id. A review of the record indicates that Plaintiff did file motions to compel

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discovery responses, Defendants received various extensions of time to anser those motions, but

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that the motions to compel were eventually denied as untimely under the scheduling order.

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As indicated, the Court will permit Defendants the opportunity to file a timely summary

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judgment motion. In light of Doc. No. 91 and the prior motions to compel, the Court also will

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permit Plaintiff the opportunity to obtain additional discovery. Specifically, Plaintiff will be

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permitted the opportunity to file a new motion to compel that addresses any outstanding

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discovery to which Plaintiff believes himself entitled. Once that motion is filed, Defendants shall

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file a response. The Magistrate Judge will then rule on the motion to compel. After the new

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motion to compel is resolved, the parties will contact the Magistrate Judge for the purpose of

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setting a new dispositive motions deadline and, if it is determined to be necessary, a new

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discovery deadline. If Plaintiff believes that a motion to compel is no longer necessary, he shall

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so inform the Court, and the Magistrate Judge will then set a new dispostive motions deadline.
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Accordingly, IT IS HEREBY ORDERED that:

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The Court DECLINES to adopt the Findings and Recommendation (Doc. No. 110);

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Defendants’ motion for summary judgment (Doc. No. 79) is DENIED without prejudice

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to re-filing in accordance with a new dispositive motions deadline;

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Defendants’ request for supplemental briefing (Doc. No. 86) is DENIED as moot;

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Plaintiff shall file either a new motion to compel discovery responses, or inform the Court

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that a motion to compel is no longer necessary, no later than October 30, 2013;
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receipt of Plaintiff’s motion;
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Defendant shall file an opposition to the motion to compel within twenty-one (21) days of

Plaintiff may file a reply within fourteen (14) days of service of Defendants’ opposition;
and

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This case is referred to the Magistrate Judge for the purpose of ruling on Plaintiff’s

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motion to compel, setting a new dispositive motions deadline, and possibly setting a new

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discovery deadline.

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IT IS SO ORDERED.

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Dated:
0m8i78

September 26, 2013
SENIOR DISTRICT JUDGE

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