Brian C. Applegate v. Nkwocha et al

Filing 22

ORDER VACATING February 16, 2017 Telephonic Status Conference, signed by Magistrate Judge Michael J. Seng on 02/13/2017. (Martin-Gill, S)

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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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CASE No. 1:16-cv-00490-MJS (PC)
ORDER
VACATING
STATUS CONFERENCE

TELEPHONIC

v.
(ECF NO. 17)
PHILIP NKWOCHA, et al.,
Defendants.

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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 a motion for leave to file a pre-answer motion for summary judgment based

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on exhaustion and a motion for extension of time to respond to the complaint. (ECF No.

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16.) The Court denied the request to file a pre-answer motion for summary judgment on

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the ground that such a motion was unlikely to promote efficiency in the instant case.

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(ECF No. 17.) Defendant since has filed his answer. (ECF No. 18.)

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In the order denying Defendant’s motion, the Court noted that Plaintiff alleged in

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his complaint that he had filed a mandamus action in the Superior Court of Sacramento

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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-LJO-MJS (E.D. Cal. Aug. 19, 2016)

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

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

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(staying proceedings) and (E.D. Cal. July 25, 2016) (continuing stay). Accordingly, the

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Court ordered the parties to brief the issue of whether the instant matter should be

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stayed in light of Plaintiff’s pending mandamus action, and also set a telephonic status

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conference on February 16, 2017 to address the issue. (ECF No. 17.)

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Neither party opposes a stay pending resolution of Plaintiff’s mandamus petition.

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(ECF Nos. 19, 21.) At the same time, however, both parties state that a stay is

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unnecessary. (Id.) Plaintiff explains that there will be a hearing on the merits of his

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petition is May 19, 2017. (ECF No. 19.) He contends that, even if the Superior Court

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rules against him, its ruling is not dispositive of the exhaustion issue before this Court. In

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any event, he asserts that he has presented evidence in the mandamus proceeding, and

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can present such evidence in this action, to refute Defendant’s exhaustion defense.

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Defendant, on the other hand, contends that evidence before the Court in the

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mandamus proceeding demonstrates that Plaintiff failed to exhaust prior to bringing suit.

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(ECF No. 21.)

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In light of the parties’ positions, the Court concludes that the February 16, 2017

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telephonic status conference is no longer necessary and that a stay of the matter is

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unwarranted. Accordingly, the February 16, 2017 status conference is HEREBY

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VACATED. The Court separately will issue a scheduling order setting a schedule for

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further litigation of this action.

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IT IS SO ORDERED.
Dated:

February 13, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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