Smith v. Martinez, et al.

Filing 40

ORDER granting 30 Motion to Stay Discovery and to vacate Discovery and Scheduling Order deadlines signed by Magistrate Judge Michael J. Seng on 3/21/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL D. SMITH,
Plaintiff,

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v.
MARTINEZ,

CASE NO. 1:17-cv-01092-AWI-MJS(PC)
ORDER GRANTING DEFENDANT’S
MOTION TO STAY DISCOVERY AND TO
VACATE DISCOVERY AND SCHEDULING
ORDER DEADLINES
(ECF No. 30)

Defendant.

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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. This matter proceeds on Plaintiff’s

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First Amendment retaliation claim against Defendant Martinez.

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Before the Court is the Defendant’s February 16, 2018 motion to stay discovery

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and modify the discovery and scheduling order, filed in conjunction with Defendant’s

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motion for summary judgment for failure to exhaust administrative remedies. (ECF No.

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30; see also ECF No. 29.) Plaintiff filed opposition. (ECF No. 36.)

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Defendant requests that the Court stay discovery, except that pertaining to

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exhaustion, and vacate the deadlines for discovery and dispositive motions as set in the

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Discovery and Scheduling Order (ECF No. 27) pending the Court’s resolution of

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Defendant’s motion for summary judgment.

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Plaintiff objects that staying discovery would be prejudicial because he has not yet

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had the time to conduct the discovery necessary to respond to Defendant’s motion for

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summary judgment.

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

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Family Partners, LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013) (per curiam); Hunt v.

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Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor

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Prods., 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.

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2002). Pursuant to Rule 26(c)(1), the Court may, for good cause, issue a

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

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

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stay of discovery pending resolution of potentially dispositive issues furthers the goal of

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efficiency for the courts and the litigants. Little v. City of Seattle, 863 F.2d 681, 685 (9th

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Cir. 1988) (stay of discovery pending resolution of immunity issue).

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The propriety of delaying discovery on the merits of the plaintiff's claims pending

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

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

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(2014); see also Gibbs v. Carson, No. C–13–0860 THE (PR), 2014 WL 172187, at *2–3

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(N.D. Cal. Jan. 15, 2014). The failure to exhaust is an affirmative defense, and

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Defendant is entitled to move for judgment on the issue. Albino, 747 F.3d at 1166.

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In addition, modification of a scheduling order requires a showing of good cause,

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Fed. R. Civ. P. 16(b)(4), and good cause requires a showing of due diligence, Johnson

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v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Here, the Defendant exercised due diligence in bringing this motion and judicial

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economy would be best served by staying discovery, except that pertaining to

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exhaustion, until the Court rules on the motion for summary judgment. Although the stay

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could conceivably delay ultimate resolution of Plaintiff’s suit, it may expedite it, and the
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benefit of the stay outweighs any negative effect.

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Accordingly, this motion is GRANTED. Discovery not relating to exhaustion is

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stayed and the deadlines in this Court’s Discovery and Scheduling Order are vacated

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until after the District Court rules on Defendant’s pending motion for summary judgment.

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(ECF No. 29.)

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IT IS SO ORDERED.

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Dated:

March 21, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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