Garraway v. Ciufo et al

Filing 93

ORDER in Response to Plaintiff's 91 Affidavit Filed on February 11, 2020 signed by Magistrate Judge Gary S. Austin on 2/18/2020. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MITCHELL GARRAWAY,

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Plaintiff,

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vs.
JACQUILINE CIUFO, et al.,

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1:17-cv-00533-DAD-GSA-PC
ORDER IN RESPONSE TO PLAINTIFF’S
AFFIDAVIT FILED ON FEBRUARY 11,
2020
(ECF No. 91.)

Defendants.

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I.

BACKGROUND

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now

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proceeds with Plaintiff’s original Complaint filed on April 17, 2017, against defendants

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Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza

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(collectively, “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment.

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(ECF No. 1.)

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On February 11, 2020, Plaintiff filed an affidavit in support of his motion to compel

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discovery responses. (ECF No. 91.)

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II.

PLAINTIFF’S AFFIDAVIT

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Plaintiff asserts that he was not provided a full opportunity to complete discovery and

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therefore was unable to properly oppose Defendants’ motion for judgment on the pleadings and
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motion for summary judgment. Plaintiff asserts that for the past twelve months: (1) Defendants

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have refused to respond to Plaintiff’s request for the Federal Bureau of Prisons inmate

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investigative report, USP-Atwater case No. ATW-16-0161; (2) Defendants have refused to turn

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over personnel files for Ciprian and the three defendants specifically related to his claims, and

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(3) the court has refused to rule on Plaintiff’s motion to compel filed on January 17, 2019.

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Plaintiff requests that Defendants’ motion for judgment on the pleadings and motion for

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summary judgment be denied, and Defendants be required to respond to Plaintiff’s motion to

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compel.

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III.

DISCUSSION

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Discovery in this case has been stayed in part since April 1, 2019, when the court granted

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Defendants’ motion to stay discovery pending resolution of Defendants’ motion for judgment on

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the pleadings. (ECF No. 65.) As discussed in the court’s order, all discovery was stayed with

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exception to discovery related to the Supreme Court’s ruling in Ziglar v. Abassi, 137 S.Ct. 1843

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(2017), as Defendants’ motion for judgment on the pleadings concerns whether Plaintiff’s Bivens

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claims are barred under Abassi. The parties were precluded from conducting any other discovery

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until after the motion for judgment on the pleadings is resolved, at which time the court shall

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issue a new scheduling order re-opening discovery if needed.

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Plaintiff argues that the court refuses to rule on his motion to compel filed on January 17,

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2019. Plaintiff is reminded that the court’s April 1, 2019 order made reference to Plaintiff’s

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motion to compel filed on January 17, 2019, stating:

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“On January 17, 2019, Plaintiff filed a motion to compel discovery

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responses from Defendants. (ECF No. 35.) In the motion, Plaintiff does not seek

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any discovery relating to the Abassi issue. Therefore, the court shall defer ruling

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on Plaintiff’s motion to compel until after Defendants’ motion for judgment on

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the pleadings is resolved.”

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(ECF No. 65 at 3, n.1.) Thus, Plaintiff’s motion to compel shall not be ruled upon until after

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Defendants’ motion for judgment on the pleadings is resolved. Accordingly, Plaintiff’s request

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for the court to rule on his motion to compel shall be denied at this stage of the proceedings.
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Plaintiff’s request for the court to deny Defendants’ motion for judgment on the pleadings

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and motion for summary judgment is untimely and shall be denied. Plaintiff has previously filed

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timely oppositions to Defendants’ motions, which shall be considered in due course.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Plaintiff’s request to deny Defendants’ motion for judgment on the pleadings and
motion for summary judgment is DENIED as untimely; and

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Plaintiff’s request for the court to require Defendants to respond to Plaintiff’s
pending motion to compel, is DENIED at this stage of the proceedings.

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IT IS SO ORDERED.
Dated:

February 18, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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