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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN C. APPLEGATE, 12 Plaintiff, 13 14 15 CASE No. 1:16-cv-00490-MJS (PC) ORDER VACATING STATUS CONFERENCE TELEPHONIC v. (ECF NO. 17) PHILIP NKWOCHA, et al., Defendants. 16 17 18 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s 22 complaint against Defendant Nkwocha for the following claims: Eighth Amendment 23 excessive force, Eighth Amendment conditions of confinement, Fourteenth Amendment 24 Equal Protection, First Amendment retaliation, violation of the Ralph Civil Rights Act, 25 violation of the Bane Act, violation of California Government Code § 845.6, intentional 26 infliction of emotional distress, assault, and battery. 27 28 1 Defendant Nkwocha waived service. (ECF No. 15.) On the date his answer was 2 due, he filed a motion for leave to file a pre-answer motion for summary judgment based 3 on exhaustion and a motion for extension of time to respond to the complaint. (ECF No. 4 16.) The Court denied the request to file a pre-answer motion for summary judgment on 5 the ground that such a motion was unlikely to promote efficiency in the instant case. 6 (ECF No. 17.) Defendant since has filed his answer. (ECF No. 18.) 7 In the order denying Defendant’s motion, the Court noted that Plaintiff alleged in 8 his complaint that he had filed a mandamus action in the Superior Court of Sacramento 9 seeking to require CDCR to process his administrative grievance. Plaintiff has raised 10 similar allegations in other actions and, as a result, those actions have been stayed. See 11 Applegate v. Moreno, Case No. 1:15-cv-1473-LJO-MJS (E.D. Cal. Aug. 19, 2016) 12 (minute order staying proceedings) and (E.D. Cal. Jan. 4, 2017) (minute order continuing 13 stay); Applegate v. Trausch, Case No. 1:15-cv-811-AWI-GSA (E.D. Cal. Mar. 29, 2016) 14 (staying proceedings) and (E.D. Cal. July 25, 2016) (continuing stay). Accordingly, the 15 Court ordered the parties to brief the issue of whether the instant matter should be 16 stayed in light of Plaintiff’s pending mandamus action, and also set a telephonic status 17 conference on February 16, 2017 to address the issue. (ECF No. 17.) 18 Neither party opposes a stay pending resolution of Plaintiff’s mandamus petition. 19 (ECF Nos. 19, 21.) At the same time, however, both parties state that a stay is 20 unnecessary. (Id.) Plaintiff explains that there will be a hearing on the merits of his 21 petition is May 19, 2017. (ECF No. 19.) He contends that, even if the Superior Court 22 rules against him, its ruling is not dispositive of the exhaustion issue before this Court. In 23 any event, he asserts that he has presented evidence in the mandamus proceeding, and 24 can present such evidence in this action, to refute Defendant’s exhaustion defense. 25 Defendant, on the other hand, contends that evidence before the Court in the 26 mandamus proceeding demonstrates that Plaintiff failed to exhaust prior to bringing suit. 27 (ECF No. 21.) 28 2 1 In light of the parties’ positions, the Court concludes that the February 16, 2017 2 telephonic status conference is no longer necessary and that a stay of the matter is 3 unwarranted. Accordingly, the February 16, 2017 status conference is HEREBY 4 VACATED. The Court separately will issue a scheduling order setting a schedule for 5 further litigation of this action. 6 7 8 IT IS SO ORDERED. Dated: February 13, 2017 /s/ 9 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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