Burgess v. Raya, et al.

Filing 83

ORDER directing Parties to advise whether Discovery is required on Eight Amendment Claim re 82 signed by Magistrate Judge Jennifer L. Thurston on 4/27/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE L. BURGESS,

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Plaintiff,
v.
RAYA, et al.,

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Case No. 1:11-cv-00921-LJO-JLT (PC)
ORDER DIRECTING PARTIES TO ADVISE
WHETHER DISCOVERY IS REQUIRED ON
EIGHT AMENDMENT CLAIM
(Doc. 82)

Defendants.

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Plaintiff initially proceeded in this action on his claims against Defendants Raya, Garcia,

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Polanco, and Fernandez for excessive force in violation of the Eight Amendment and against

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Defendants Raya and Polanco under the additional claims of conspiracy and retaliation in

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violation of the First Amendment as stated in the Third Amended Complaint. (Docs. 29, 32, 49.)

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The Court granted the Defendants because Plaintiff’s claims were found barred by Heck v.

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Humphrey, 512 U.S. 477 (1994), Edwards v. Balisok, 520 U.S. 641, 643-647 (1997) since

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Plaintiff had neither challenged nor invalidated the disciplinary finding prior to filing suit. (Docs.

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73, 75.)

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On appeal, the Ninth Circuit found that, “to the extent Burgess alleged he was exposed to

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pepper spray for a prolonged period of time despite alerting defendants to his health issues,” he is

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not barred by Heck and remanded for further proceedings on that claim only. (Doc. 82, p. 3.)

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These allegations were included in Plaintiff’s excessive force and retaliation claims, but Plaintiff
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did not state a claim on this basis and appeared to rely upon these facts only as evidence of his

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damage related to the excessive force claim that was stated. Consequently, the parties did not

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address this issue in the motion for summary judgment.

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Thus, the Court ORDERS that within twenty-one days of the date of service of this order,

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the parties shall file statements indicating whether they need discovery to be reopened solely on

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this claim and why, whether they believe a new deadline for dispositive motions on this claim

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should be permitted and whether they are prepared to engage in a settlement conference and, if

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so, when.

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IT IS SO ORDERED.
Dated:

April 27, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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