Bishop v. Lopez, et al.

Filing 102

ORDER GRANTING 94 Plaintiff's Motion to Defer Ruling on Defendants' Pending Motion for Summary Judgment; ORDER GRANTING 79 Defendants' Motion for a Protective Order to Stay All Merits-Based Discovery; ORDER DENYING 76 Plaintiff&# 039;s Motion to Increment Interrogatories; ORDER DENYING 83 Plaintiff's Motion to Compel; ORDER DENYING AS MOOT 96 , 98 Plaintiff's Motions for Extension of Time signed by Magistrate Judge Stanley A. Boone on 11/24/2015. Defendants shall file a response to Plaintiff's exhaustion-related discovery requests within forty-five (45) days. (Jessen, A)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

ROBERT BISHOP,

9

Plaintiff,

10
11

v.
RAUL LOPEZ, et al.,

12

Defendants.

13
14

15
16
17
18

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:15-cv-00273-LJO-SAB (PC)
ORDER GRANTING DEFENDANTS’ MOTION
FOR PROTECTIVE ORDER STAYING MERITSBASED DISCOVERY, DENYING PLAINTIFF’S
MOTION TO INCREMENT INTERROGATORIES,
DENYING PLAINTIFF’S MOTION TO COMPEL,
WITHOUT PREJUDICE, GRANTING
PLAINTIFF’S MOTION TO DEFER RULING ON
PENDING MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFF’S
MOTION FOR EXTENSION OF TIME
[ECF Nos. 76, 79, 83, 94, 96, 98]

Plaintiff Robert Bishop is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

19

I.

20

RELEVANT HISTORY

21

This action is proceeding against Defendants Lopez, Germond, Rodriguez, Vogel, Jones, Cano,

22

Marshall, Cruz, Tucker, Mauldin, Maita, and Dynsinki for conditions of confinement in violation of

23

the Eighth Amendment.

24

On June 23, 2015, Defendants filed an answer to the complaint. (ECF No. 51.) On June 25,

25

2015, the Court issued the discovery and scheduling order, opening discovery in this action. (ECF No.

26

52.)

27
28
1

1
2
3

On September 18, 2015, Plaintiff filed a motion to increment interrogatories pursuant to Rule
26(b)(2) of the Federal Rules of Civil Procedure. (ECF No. 76.)
On September 24, 2015, Defendants filed a motion for summary judgment based on Plaintiff’s

4

failure to exhaust the administrative remedies. (ECF No. 78.) On this same date, Defendants filed a

5

motion for a protective order staying “discovery on the underlying merits of the Complaint and limit

6

discovery, if any, to the issue of exhaustion of Plaintiff’s administrative remedies.” (ECF No. 79,

7

Motion, at 3.)

8

On September 28, 2015, Plaintiff filed a motion to compel discovery. (ECF No. 83.) On

9

October 7, 2015, the Court granted Defendant’s request to extend the time to respond to Plaintiff’s

10

motion to compel until after the Court issues a ruling on Defendants’ motion for a protective order

11

staying discovery, should a response be deemed necessary by the Court. (ECF Nos. 88, 91.)

12
13
14

On October 19, 2015, Plaintiff filed a motion to defer ruling on Defendants’ motion for
summary judgment pending discovery. (ECF No. 94.)
On October 27, 2015, Plaintiff filed a motion for an extension of time to respond to

15

Defendants’ request for production of documents until after the Court issues a ruling on the pending

16

motion for a protective order. (ECF No. 96.)

17
18
19
20

On November 5, 2015, Defendants filed an opposition to Plaintiff’s motion to defer ruling on
the pending motion for summary judgment. (ECF No. 97.)
On November 6, 2015, Plaintiff filed a motion for an extension of time to respond to
Defendants’ motion for a protective order. (ECF No. 98.)

21

II.

22

DISCUSSION

23

A.

24

On October 19, 2015, Plaintiff filed a motion to defer ruling on Defendants’ motion for

25

Motion to Defer Ruling on Pending Motion for Summary Judgment

summary judgment pending discovery. (ECF No. 94.)

26

Defendants oppose Plaintiff’s motion and contend “the discovery requested by Plaintiff is

27

unnecessary, overly burdensome, and would cause undue expense to Defendants.” (ECF No. 97,

28

Opp’n at 2.)
2

1

Defendants do not address specifically Plaintiff’s requests relating to exhaustion of the

2

administrative remedies, and the Court is compelled to find that Plaintiff is entitled to a response to his

3

discovery requests in order to respond to the pending motion for summary judgment.

4

Federal Rule of Evidence 56 provides:

5

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.

6
7
8

Fed. R. Civ. P. 56(d). When a motion for summary judgment is filed “before a party has had any

9

realistic opportunity to pursue discovery relating to its theory of the case, “a Rule 56(d) motion should

10
11

be freely granted. Burlington N. Santa Fe R.R. Co. v. Assinibione and Siuox Tribes of the Fort Peck
Reservation, 323 F.3d 767, 773 (9th Cir. 2003). A party asserting that discovery is necessary to

12

oppose motion for summary judgment “shall provide a specification of the particular facts on which

13

discovery is to be had or the issues on which discovery is necessary.” Local Rule 260(b). However,

14

where “no discovery whatsoever has taken place, the party making a Rule 56[d] motion cannot be

15
16
17
18
19
20
21

expected to frame its motion with great specificity as to the kind of discovery likely to turn up useful
information, as the ground for such specificity has not yet been laid. Burlington N., 3232 F.3d at 774.
“The Courts which have denied a Rule 56[d] application for lack of sufficient showing to support
further discovery appear to have done so where it was clear that the evidence sought was almost
certainly nonexistence or was the object of pure speculation.” VISA Int’l Serv Ass’n v. Bankcard
Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986) (citation omitted).
Plaintiff contends, in part, that he expects “to obtain facts from discovery which will show that

22

Plaintiff’s appeal in question was properly submitted in accordance with the rules and regulations of

23

that time and put officials on adequate notice of the problem. Plaintiff’s appeal alerted the officials to

24
25
26
27

the nature of the wrong for which redress was sought. The specific facts Plaintiff hopes to elicit from
further discovery includes factual regulations and policies that were in effect at the time Plaintiff filed
his appeal. Plaintiff is also requesting an appeals log which depicts appeal submissions from within
the housing unit. Plaintiff, along with the production of documents, seeks to submit relevant

28
3

1

admissions request regarding his appeal, regulations and policies, appeal collections reviews and

2

routing, appeals response and logging. Plaintiff also submitted interrogatories relevant to, the appeals

3

process, regulations and policies of the appeals process, Plaintiff’s appeal and request. … Plaintiff’s

4

request for admissions and interrogatories are also necessary as the Defendants responses will show

5

the existence of relevant facts. Plaintiff has not received any responses, to his previously filed

6

admissions and interrogatories from Defendants.” (ECF No. 94, Motion, at 3-4.)

7

Defendants oppose Plaintiff’s request on the ground that it is burdensome and unnecessary.

8

Defendants submit that they have produced, with their opposition, a copy of the applicable Title 15

9

sections concerning appeals” to the relevant time period. In contrast, Plaintiff has set forth the specific

10

facts and requests he believes discovery will reveal, and explained he believes how those facts may

11

preclude summary judgment. Defendants raise only general opposition to Plaintiff’s exhaustion-

12

related discovery requests, and Defendants have not demonstrated that the discovery sought is “almost

13

certainly nonexistence or [is] the object of pure speculation.” VISA Int’l Serv. Ass’n., 784 F.2d at

14

1475. Accordingly, the Court will grant Plaintiff’s motion to defer ruling on Defendants’ pending

15

motion for summary judgment and order Defendants to respond to Plaintiff’s outstanding discovery

16

requests.1 However, this ruling applies only to requests for discovery that relate to exhaustion of the

17

administrative remedies.
Defendants’ Motion for Protective Order Staying Merits-Based Discovery

18

B.

19

As previously stated, Defendants seek a protective order staying discovery on the underlying

20

merits of the Complaint and limit discovery, if any, to the issue of exhaustion of Plaintiff’s

21

administrative remedies.” (ECF No. 79, Motion, at 3.) Although Plaintiff has not filed an opposition

22

and has requested an extension of time to do so, the Court finds a response by Plaintiff unnecessary in

23

this instance based on the lack of prejudice to Plaintiff. Accordingly, Plaintiff request for an extension

24

of time to file an opposition shall be denied. (ECF No. 98).

25

The Court is vested with broad discretion to manage discovery. Dichter-Mad Family Partners,

26

LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013); Hunt v. County of Orange, 672 F.3d 606, 616 (9th

27
1

28

Defendants are not prevented from asserting a proper objection to any of Plaintiff’s exhaustion related discovery
requests.

4

1

Cir. 2012); Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005); Hallett v.

2

Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Pursuant to Rule 26(c)(1), the Court may, for good cause,

3

issue a protective order forbidding or limiting discovery. The avoidance of undue burden or expense

4

is grounds for the issuance of a protective order, Fed. R. Civ. P. 26(c), and a stay of discovery pending

5

resolution of potentially dispositive issues furthers the goal of efficiency for the courts and the

6

litigants, Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (stay of discovery pending

7

resolution of immunity issue). The propriety of delaying discovery on the merits of the Plaintiff’s

8

claims pending resolution of an exhaustion motion was explicitly recognized by the Ninth Circuit.

9

Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014);

10

see also Gibbs v. Carson, No. C-13-0860 THE (PR), 2014 WL 172187, at *2-3 (N.D. Cal. Jan. 15,

11

2014).
The failure to exhaust is an affirmative defense, and Defendants are entitled to judgment on

12
13

Plaintiff’s claims against them if the Court determines the claims are unexhausted. Albino, 747 F.3d

14

at 1166. Thus, the pending exhaustion motion has the potential to bring final resolution to this action,

15

obviating the need for merits-based discovery. Gibbs, 2014 WL 172187, at *3. In Albino, the Ninth

16

Circuit recognized that “[e]xhaustion should be decided, if feasible, before reaching the merits of a

17

prisoner’s claims,” and “discovery directed to the merits of the suit” should be left until later. Albino,

18

747 F.3d at 1170.
Because Defendants’ motion for summary judgment is based solely on the ground that Plaintiff

19
20

failed to exhaust the administrative remedies, any discovery requests related to the underlying merits

21

of the complaint is outweighed by Defendants’ burden in responding to discovery requests that may

22

not be necessary if the motion for summary is granted. Accordingly, all merits-based discovery is

23

stayed pending resolution of Defendants’ motion for summary judgment. In light of this ruling,

24

Plaintiff’s motion to increment interrogatories (ECF No. 76) and motion to compel (ECF No. 83) are

25

DENIED, without prejudice. Plaintiff’s third motion to extend the time to respond to Defendants’

26

discovery requests (ECF No. 96), and Plaintiff’s motion for an extension of time to respond to

27

Defendants’ motion for a protective order (ECF No. 98) are denied as moot.

28

///
5

1

III.

2

ORDER

3

Based on the foregoing, it is HEREBY ORDERED that:

4

1.

Plaintiff’s motion to defer ruling on Defendants’ pending motion for summary
judgment is GRANTED;

5
2.

6

Within forty-five (45) days from the date of service of this order, Defendants shall file a
response to Plaintiff’s exhaustion-related discovery requests;

7
3.

8

Defendants’ motion for a protective order to stay all merits-based discovery is
GRANTED;

9
4.

10

Plaintiff’s motion to increment interrogatories (ECF No. 76) is DENIED, without
prejudice;

11
12

5.

Plaintiff’s motion to compel (ECF No. 83) is DENIED, without prejudice;

13

6.

Plaintiff’s third motion to extend the time to respond to Defendants’ discovery requests
(ECF No. 96) is DENIED as moot; and

14
7.

15

Plaintiff’s motion for an extension of time to respond Defendants’ motion for a
protective order (ECF No. 98) is DENIED as moot.

16
17
18

IT IS SO ORDERED.

19

Dated:

20

November 24, 2015
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
6