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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DWAYNE L. BURGESS, 12 13 14 Plaintiff, v. RAYA, et al., 15 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. 16 17 Plaintiff initially proceeded in this action on his claims against Defendants Raya, Garcia, 18 Polanco, and Fernandez for excessive force in violation of the Eight Amendment and against 19 Defendants Raya and Polanco under the additional claims of conspiracy and retaliation in 20 violation of the First Amendment as stated in the Third Amended Complaint. (Docs. 29, 32, 49.) 21 The Court granted the Defendants because Plaintiff’s claims were found barred by Heck v. 22 Humphrey, 512 U.S. 477 (1994), Edwards v. Balisok, 520 U.S. 641, 643-647 (1997) since 23 Plaintiff had neither challenged nor invalidated the disciplinary finding prior to filing suit. (Docs. 24 73, 75.) 25 On appeal, the Ninth Circuit found that, “to the extent Burgess alleged he was exposed to 26 pepper spray for a prolonged period of time despite alerting defendants to his health issues,” he is 27 not barred by Heck and remanded for further proceedings on that claim only. (Doc. 82, p. 3.) 28 These allegations were included in Plaintiff’s excessive force and retaliation claims, but Plaintiff 1 1 did not state a claim on this basis and appeared to rely upon these facts only as evidence of his 2 damage related to the excessive force claim that was stated. Consequently, the parties did not 3 address this issue in the motion for summary judgment. 4 Thus, the Court ORDERS that within twenty-one days of the date of service of this order, 5 the parties shall file statements indicating whether they need discovery to be reopened solely on 6 this claim and why, whether they believe a new deadline for dispositive motions on this claim 7 should be permitted and whether they are prepared to engage in a settlement conference and, if 8 so, when. 9 10 11 12 IT IS SO ORDERED. Dated: April 27, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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