Dukes v. Harrington et al
Filing
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ORDER GRANTING 55 Defendant's Ex Parte Application to Vacate Discovery and Scheduling Order and ORDER VACATING 54 Discovery and Scheduling Order signed by Magistrate Judge Dennis L. Beck on 10/29/2014. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DARNELL DUKES,
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Plaintiff,
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v.
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Case No. 1:12-cv-00941 LJO DLB PC
ORDER GRANTING DEFENDANT’S EX
PARTE APPLICATION TO VACATE
DISCOVERY AND SCHEDULING ORDER
(Document 55)
GARCIA,
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Defendant.
ORDER VACATING DISCOVERY AND
SCHEDULING ORDER
(Document 54)
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Plaintiff Darnell Dukes (“Plaintiff”) is a California state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On February 24, 2014, the Court granted Defendant’s motion to dismiss based on exhaustion
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and entered judgment. Plaintiff appealed the dismissal, and on August 19, 2014, the Ninth Circuit
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Court of Appeals remanded the action pursuant to the new procedures set forth in Albino v. Baca,
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747 F.3d 1162, 1170 (9th Cir. 2014).
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On September 12, 2014, the Court vacated the judgment and ordered Defendant to file a
response to the complaint.
On October 15, 2014, Defendant filed a motion for summary judgment based on exhaustion.
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Pursuant to Court order, Defendant filed an answer on October 24, 2014. As is the custom in
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prisoner civil rights actions, the Court then issued a Discovery and Scheduling Order opening
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discovery.
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On October 28, 2014, Defendant filed an ex parte application to vacate the Discovery and
Scheduling Order.
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DISCUSSION
A scheduling order “may be modified only for good cause,” and by leave of court. Fed. R.
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Civ. P. 16(b)(4). The Court has broad discretion to control the course of litigation under Fed. R. Civ.
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P. 16. Hunt v. Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012).
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Here, the Court finds that good cause exists to vacate the scheduling order. Unlike most
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prisoner actions remanded by the Ninth Circuit, this action was remanded solely on procedural
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grounds. The Ninth Circuit did not address the merits of the underlying exhaustion issue, but rather
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remanded in light of the new procedure for deciding exhaustion set forth in Albino.
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Defendant has now filed his motion for summary judgment based on exhaustion. While the
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procedure for raising the issue has changed, Defendant’s motion sets forth the same arguments, and
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is supported by the same evidence, as the prior motion to dismiss.
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Given the procedural posture of this action, good cause exists to vacate the opening of
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merits-based discovery. Albino, 747 F.3d at 1170 (“If discovery is appropriate, the district court
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may in its discretion limit discovery to evidence concerning exhaustion, leaving until later-if it
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becomes necessary-discovery directed to the merits of the suit.”).
Accordingly, the Court GRANTS Defendant’s request and VACATES the Discovery and
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Scheduling Order.
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If Plaintiff believes that discovery related to exhaustion is necessary, he must file a request
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pursuant to Rule 56(d) within thirty days (30) days of the date of service of this order. Otherwise,
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Plaintiff must file his opposition to Defendant’s motion for summary judgment within thirty (30)
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days of the date of service of this order.
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IT IS SO ORDERED.
Dated:
/s/ Dennis
October 29, 2014
L. Beck
UNITED STATES MAGISTRATE JUDGE
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