Miller v. Najera, et. al.

Filing 62

ORDER DENYING 61 Motion to Compel, signed by Chief Judge Lawrence J. O'Neill on 08/2/2017. (Martin-Gill, S)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 STEVEN R. MILLER, 7 Plaintiff, 8 9 1:12-cv-01288-LJO (PC) ORDER RE MOTION TO COMPEL AND MISCELLANEOUS REQUESTS (ECF NO. 61) v. ____________________., 10 Defendants. 11 12 Pro se Plaintiff Steven Miller brings this case against Defendants, alleging failure to protect and 13 14 deliberate indifference claims under the Eighth and Fourteenth Amendments. See ECF No. 32. The 15 Discovery and Scheduling Order, issued February 1, 2017, set May 1, 2017 as the deadline for filing 16 “[a]ll motions asserting failure to exhaust administrative remedies.” ECF No. 41 at 3. The Discovery and 17 Scheduling Order further provides: The issue of exhaustion must be raised by either (1) a procedurally proper motion for summary judgment, or (2) a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) if the failure to exhaust is clear on the face of the complaint. If the parties believe that discovery related to exhaustion is necessary, they may request discovery pursuant to Federal Rule of Civil Procedure 56(d). Requests for limited discovery must be made within 30 calendar days of the date of service of any motion asserting failure to exhaust. A party may also request that discovery, other than discovery related to exhaustion, be stayed pending the resolution of an exhaustion motion. 18 19 20 21 22 23 Id. 24 On July 31, 2017, Plaintiff filed a “Motion to Compel a Response for Failure to Meet Exhaustion 25 1 1 Motion Filing Deadline . . . and Failure in Notification of Fresno Defendants Brief Statement From 2 Telephonic Hearing.” ECF No. 61. First, Plaintiff notes, correctly, that no Defendant filed any motion 3 asserting failure to exhaust administrative remedies by the May 1, 2017 deadline. Id. at 1. He then asks 4 the Court to compel Defendant to file “some sort of motion seeking the resolution of summary 5 judgment” or “find the Defendants in procedural default and grant a Summary Judgment to Plaintiff 6 under Federal Rules of Civil Procedure Rule 54(b).” Id. at 2. 7 This request is DENIED. While it is true that Defendants missed the relevant deadline for filing 8 a motion regarding exhaustion of administrative remedies, this only means that, absent a legally 9 justifiable excuse for doing so, Defendants have waived the right to bring a motion to dismiss and/or a 10 motion for summary judgment as to that issue. This does not necessarily mean that the issue of 11 exhaustion cannot be raised in a different context. 12 Second, Plaintiff appears to be suggesting that the Fresno County Defendants failed to file a 13 “brief statement” prior to the trial setting conference held on May 18, 2017. This is incorrect. The 14 Fresno County Defendants did include a brief statement of the case within their scheduling conference 15 statement filed in advance of the trial setting conference. See ECF No. 57 at 1. According to the proof of 16 service, the document containing that brief statement was served on Plaintiff at his address of record. Id. 17 at 4. The Court therefore sees no need to act upon Plaintiff’s request. 18 19 IT IS SO ORDERED. 20 Dated: /s/ Lawrence J. O’Neill _____ August 2, 2017 UNITED STATES CHIEF DISTRICT JUDGE 21 22 23 24 25 2

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