Miller v. Najera, et. al.

Filing 64

ORDER RE MOTION TO COMPEL AND MISCELLANEOUS REQUESTS 61 signed by Chief Judge Lawrence J. O'Neill on 8/4/2017. (Lundstrom, T)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 STEVEN R. MILLER, 7 8 9 10 1:12-cv-01288-LJO (PC) Plaintiff, ORDER RE MOTION TO COMPEL AND MISCELLANEOUS REQUESTS (ECF NO. 61) v. ALBERT NAJERA, et al., Defendants. 11 12 13 Pro se Plaintiff Steven Miller brings this case against Defendants, alleging failure to protect and 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. On May 18, 2017, 17 the Court held a Trial Scheduling Conference, ECF No. 58, during which Fresno County Counsel, Scott 18 Hawkins, requested additional time to file any motion regarding exhaustion. Plaintiff, who appeared at 19 the hearing telephonically, did not object, and the request was granted. Specifically, a dispositive 20 motions deadline was set for September 5, 2017, see ECF No. 59, and the Court specifically indicated 21 that motions regarding exhaustion would be permitted up to that date. 22 On July 31, 2017, Plaintiff filed a “Motion to Compel a Response for Failure to Meet Exhaustion 23 Motion Filing Deadline . . . and Failure in Notification of Fresno Defendants Brief Statement From 24 Telephonic Hearing.” ECF No. 61. First, Plaintiff notes, correctly, that no Defendant filed any motion 25 asserting failure to exhaust administrative remedies by May 1, 2017, the deadline set forth in the 1 1 February 1, 2017 Discovery and Scheduling Order. Id. at 1. He then asks the Court to compel Defendant 2 to file “some sort of motion seeking the resolution of summary judgment” or “find the Defendants in 3 procedural default and grant a Summary Judgment to Plaintiff under Federal Rules of Civil Procedure 4 Rule 54(b).” Id. at 2. This request is DENIED. The relevant deadline for filing any motion regarding 5 exhaustion was extended to September 5, 2017. 6 Second, Plaintiff appears to be suggesting that the Fresno County Defendants failed to file a 7 “brief statement” prior to the trial setting conference held on May 18, 2017. See id. at 1. This is 8 incorrect. The Fresno County Defendants did include a brief statement of the case within their 9 scheduling conference statement filed in advance of the trial setting conference. See ECF No. 57 at 1-2. 10 According to the proof of service, the document containing that brief statement was served on Plaintiff 11 via United States mail at his address of record. Id. at 4. The Court therefore sees no basis for Plaintiff’s 12 request, which the Court DENIES as moot. 13 14 IT IS SO ORDERED. 15 Dated: /s/ Lawrence J. O’Neill _____ August 4, 2017 UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 2

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