Burgess v. Raya, et al.
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DWAYNE L. BURGESS,
RAYA, et al.,
Case No. 1:11-cv-00921-LJO-JLT (PC)
ORDER DIRECTING PARTIES TO ADVISE
WHETHER DISCOVERY IS REQUIRED ON
EIGHT AMENDMENT CLAIM
Plaintiff initially proceeded in this action on his claims against Defendants Raya, Garcia,
Polanco, and Fernandez for excessive force in violation of the Eight Amendment and against
Defendants Raya and Polanco under the additional claims of conspiracy and retaliation in
violation of the First Amendment as stated in the Third Amended Complaint. (Docs. 29, 32, 49.)
The Court granted the Defendants because Plaintiff’s claims were found barred by Heck v.
Humphrey, 512 U.S. 477 (1994), Edwards v. Balisok, 520 U.S. 641, 643-647 (1997) since
Plaintiff had neither challenged nor invalidated the disciplinary finding prior to filing suit. (Docs.
On appeal, the Ninth Circuit found that, “to the extent Burgess alleged he was exposed to
pepper spray for a prolonged period of time despite alerting defendants to his health issues,” he is
not barred by Heck and remanded for further proceedings on that claim only. (Doc. 82, p. 3.)
These allegations were included in Plaintiff’s excessive force and retaliation claims, but Plaintiff
did not state a claim on this basis and appeared to rely upon these facts only as evidence of his
damage related to the excessive force claim that was stated. Consequently, the parties did not
address this issue in the motion for summary judgment.
Thus, the Court ORDERS that within twenty-one days of the date of service of this order,
the parties shall file statements indicating whether they need discovery to be reopened solely on
this claim and why, whether they believe a new deadline for dispositive motions on this claim
should be permitted and whether they are prepared to engage in a settlement conference and, if
IT IS SO ORDERED.
April 27, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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