Moran v. Dutra et al

Filing 124

ORDER requiring parties to notify court whether they intend to pursue further discovery or dispositive motions signed by Magistrate Judge Michael J. Seng on 7/27/2015. (Filing Deadline: 8/31/2015).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICOLAS MORAN,

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Plaintiff,

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v.
K. DUTRA, et al.,

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Defendants.

CASE NO. 1:11-cv-00914-LJO-MJS (PC)
ORDER REQUIRING PARTIES TO
NOTIFY COURT WHETHER THEY
INTEND
TO
PURSUE
FURTHER
DISCOVERY OR DISPOSITIVE MOTIONS
THIRTY (30) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 1 & 11.) The Court
screened Plaintiff’s first amended complaint and concluded that it stated cognizable
Eighth Amendment inadequate medical care claims against Defendants Ryan (Hoggard)
and Dedee (Onwubuya), and cognizable Eighth Amendment excessive force claims
against Defendants Dutra and Auten (Brockmeyer).1 (ECF No. 27.)

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Defendants Hoggard, Dutra, and Brockmeyer promptly were served and
appeared in the action. (ECF Nos. 24, 42, 47.) Because Plaintiff was unfamiliar with
Defendant Onwubuya’s true name and whereabouts, service on her was delayed. (See,
e.g., ECF Nos. 21, 32, 48, 63, 68, 105, 118.) Meanwhile, the action proceeded through
discovery and the filing of dispositive motions. (ECF No. 46.) Summary judgment was

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Defendants Ryan, Auten, and Dedee have changed their last names since the date of the
allegations. The Court will use their new last names in this order.

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granted in favor of Defendant Hoggard, but denied as to Defendants Dutra and

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Brockmeyer. (ECF No. 104.) With respect to these Defendants, the action is ready to

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proceed to trial.

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However, Defendant Onwubuya did not waive service until July 1, 2015, and did

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not answer the complaint until July 24, 2015. (ECF Nos. 121, 122.) Accordingly, at this

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time, it is appropriate for the Court to set a schedule for further litigation of this case,

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including further discovery and the filing of dispositive motions. See Federal Rule of Civil

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Procedure 16(b).

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The Court notes that Defendants Onwubuya is represented by the same counsel

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as the other Defendants. The allegations against her relate to a single incident that also

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involved Defendant Hoggard. The Court believes it is likely that substantial discovery

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already has been conducted with regard to Plaintiff’s claims against Defendant

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Onwubuya, even in her absence. The Court is disinclined to enlarge the discovery and

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motions period if no real need exists.

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Accordingly, the parties are HEREBY ORDERED to advise the Court within thirty

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(30) days whether they intend to engage in further discovery in relation to the claim

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against Defendant Onwubuya, and whether they intend to file dispositive motions

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relating to exhaustion of administrative remedies or the merits of the case. Upon receipt

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of the parties’ responses, the Court will issue a further scheduling order addressing

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these issues.

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IT IS SO ORDERED.
Dated:

July 27, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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