Howard v. Gonzales

Filing 56

ORDER REGARDING Plaintiff's 54 Objections to Deposition and to Further Motions for Summary Judgment, signed by Magistrate Judge Dennis L. Beck on 10/15/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY HOWARD,

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Plaintiff,

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vs.
C. GONZALES,
Defendant.

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1:12cv00487 LJO DLB PC
ORDER REGARDING PLAINTIFF’S
OBJECTIONS TO DEPOSITION AND TO
FURTHER MOTIONS FOR SUMMARY
JUDGMENT
(Document 54)

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Plaintiff Timothy Howard (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action filed on March 30, 2012.
This action is proceeding against Defendant Gonzales. On August 21, 2014, Defendant
Gonzales filed a motion for summary judgment based on Plaintiff’s failure to exhaust. The
motion is fully briefed.
On September 29, 2014, Plaintiff filed “objections” to Defendant’s notice of deposition

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of Inmate Juarez. Plaintiff also requests that the Court prevent Defendant from filing any further
motions for summary judgment.
The motion for summary judgment pending is related to exhaustion. Pursuant to the
Ninth Circuit’s decision in Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014), a motion for
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summary judgment is now the proper procedural vehicle for addressing exhaustion. A motion
for summary judgment based on exhaustion does not address the underlying merits of the claim,
and if the action survives the exhaustion challenge, Defendant will not be prohibited from filing
a motion for summary judgment on the merits at a later date.
Insofar as Plaintiff suggests that discovery should be stayed, the Court’s practice has been

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to continue discovery on the merits of the action while an exhaustion challenge is pending. If
discovery becomes unduly burdensome, the parties may move for a protective order. Fed. R.
Civ. Proc. 26(c)(1).

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Finally, Plaintiff’s challenge to Defendant’s amended notice of Inmate Juarez’s

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deposition is unclear. To the extent Plaintiff suggests that Defendant has not obtained leave of

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Court, the May 23, 2013, Discovery and Scheduling Order specifically granted Defendant leave

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to “take the deposition of Plaintiff, or any other incarcerated witness, pursuant to Federal Rule of

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Civil Procedure 30(a)(2)(B).” ECF No. 28, at 3. Plaintiff is also correct that Defendant must

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provide Plaintiff with note at least fifteen (15) days prior to the scheduled date, but the fact that

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Plaintiff did not receive an initial notice does not make the amended notice improper.

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IT IS SO ORDERED.

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Dated:
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/s/ Dennis

October 15, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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