Brian C. Applegate v. Nkwocha et al

Filing 17

ORDER Denying Defendant's Ex Parte Motion for Leave to File a Pre-Answer Motion for Summary Judgment and Motion for Extension Time to Respond to Plaintiff's Complaint re 16 ; ORDER Requiring Plaintiff to File Status Update; ORDER Setting Telephonic Status Conference, signed by Magistrate Judge Michael J. Seng on 1/4/17. Telephonic Status Conference set for 2/16/2017 at 11:00 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN C. APPLEGATE,

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Plaintiff,

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v.
PHILIP NKWOCHA, et al.,
Defendants.

CASE No. 1:16-cv-00490-MJS (PC)
ORDER DENYING DEFENDANT’S EX
PARTE MOTION FOR LEAVE TO FILE A
PRE-ANSWER MOTION FOR SUMMARY
JUDGMENT
AND
MOTION
FOR
EXTENSION OF TIME TO RESPOND TO
PLAINTIFF’S COMPLAINT

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(ECF No. 16)

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ORDER REQUIRING PLAINTIFF TO FILE
STATUS UPDATE

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ORDER SETTING TELEPHONIC STATUS
CONFERENCE

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Telephonic Status Conference: February
16, 2017 at 11:00 a.m. in Courtroom 6
(MJS)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s

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complaint against Defendant Nkwocha for the following claims: Eighth Amendment

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excessive force, Eighth Amendment conditions of confinement, Fourteenth Amendment

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Equal Protection, First Amendment retaliation, violation of the Ralph Civil Rights Act,

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violation of the Bane Act, violation of California Government Code § 845.6, intentional

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infliction of emotional distress, assault, and battery.

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Defendant Nkwocha waived service. (ECF No. 15.) On the date his answer was

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due, he filed the instant motion for leave to file a pre-answer motion for summary

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judgment based on exhaustion and a motion for extension of time to respond to the

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complaint. (ECF No. 16.)

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As Defendant points out, a motion for summary judgment may be filed at any time

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“until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b). Although

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uncommon, there is no apparent prohibition against filing a motion for summary

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judgment prior to an answer. Accordingly, no specific leave of Court is required before

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Defendant may file such a motion. The motion for leave therefore will be denied.

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Such a motion is not a responsive pleading and does not absolve Defendant of

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the requirement to respond to Plaintiff’s complaint. See Fed. R. Civ. P. 12(b). Defendant

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asks that his time to file a responsive pleading be extended until after the exhaustion

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summary judgment motion has been resolved. He contends that such an extension

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promotes efficiency and economy for the Court and the parties. Certainly such

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procedures may promote efficiency in some cases. This is not such a case.

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As an initial matter, Defendant did not propose a time for filing his pre-answer

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motion for summary judgment. Indeed, more than six weeks have passed since

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Defendant was due to respond to the complaint and no such motion has been filed. Thus

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Defendant’s request has served to delay the proceedings rather than to promote

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efficiency.

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More importantly, however, Plaintiff acknowledges difficulties in the processing of

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his administrative remedies. Indeed, he states in the complaint that he has filed a

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mandamus action in the Superior Court of Sacramento, Case No. 34-2015-80002217,

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seeking to require CDCR to process his administrative grievance. Plaintiff has raised

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similar allegations in other actions and, as a result, those actions have been stayed. See

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Applegate v. Moreno, Case No. 1:15-cv-1473 (E.D. Cal. Aug. 19, 2016) (minute order

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staying proceedings) and (E.D. Cal. Jan. 4, 2017) (minute order continuing stay);

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Applegate v. Trausch, Case No. 1:15-cv-811 (E.D. Cal. Mar. 29, 2016) (staying

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proceedings) and July 25, 2016 (continuing stay). In light of these allegations, a pre-

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answer motion for summary judgment on exhaustion grounds is unlikely to expeditiously

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resolve this matter.

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Based on the foregoing, the Court will deny the motion for extension of time but

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will nonetheless afford Defendant an opportunity to respond to the complaint.

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Additionally, the Court will require Plaintiff to provide a status update regarding any and

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all Superior Court actions pertaining to exhaustion of the allegations at issue in this case.

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Finally, the Court will set the matter for a telephonic status conference to determine

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whether a stay is warranted pending resolution of relevant state court proceedings.

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Accordingly, it is HEREBY ORDERED that:
1. Defendant’s motion to file a pre-answer motion for summary judgment and
motion for extension of time (ECF No. 16) are DENIED;
2. Defendant shall file a responsive pleading within fourteen days of the
service of this order;

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3. On or before February 6, 2017, Plaintiff shall file and serve a status update

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detailing the current status of any and all Superior Court actions pertaining

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to the exhaustion of the allegations at issue in this case;

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4. On or before February 13, 2017, each party shall file and serve a brief,

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two-page statement outlining his position on whether the matter should be

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stayed;

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5. The matter is set for a telephonic status conference on February 16, 2017
at 11:00 a.m. in Courtroom 6 (MJS);

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6. Defendant shall arrange for Plaintiff’s participation in the telephonic

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conference; and

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7. The parties may join the conference by dialing [phone] and

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entering access code 4446176#.

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IT IS SO ORDERED.
Dated:

January 4, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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