Gann v. Kokor et al

Filing 69

ORDER GRANTING Defendant's 68 Motion to Vacate Scheduling Order; ORDER VACATING Dispositive Motion Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 09/28/2022.(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATHANIEL MARCUS GANN,

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Plaintiff,

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v.

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VERA-BROWN,

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Defendant.

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I.

ORDER GRANTING DEFENDANT’S
MOTION TO VACATE SCHEDULING
ORDER
(ECF No. 68)

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Case No. 1:18-cv-00084-BAM (PC)

ORDER VACATING DISPOSITIVE
MOTION DEADLINE

Procedural Background
Plaintiff Nathaniel Marcus Gann (“Plaintiff”) is a state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s second

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amended complaint against Defendant Vera-Brown (“Defendant”) for deliberate indifference to

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serious medical needs in violation of the Eighth Amendment. All parties have consented to

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Magistrate Judge jurisdiction. (ECF No. 52.)

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On February 25, 2022, Defendant filed a motion for summary judgment on the ground

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that Plaintiff failed to exhaust the prison’s administrative grievance procedures for his claims

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against Defendant prior to filing this lawsuit. (ECF No. 57.) Also on February 25, 2022, Plaintiff

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filed a motion to compel discovery regarding Defendant’s responses to Plaintiff’s Request for

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Production of Documents (Set 1) and Plaintiff’s Interrogatories (Set 1). (ECF No. 58.) In partial

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response, Defendant filed a motion to stay all discovery on February 28, 2022. (ECF No. 59.)
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The Court granted the request in part and ordered a stay of all merits-based discovery, but

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clarified that Defendant was not relieved of the obligation to timely respond to any requests

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relating to the issue of exhaustion of administrative remedies. (ECF No. 61.) Defendant filed an

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opposition to the motion to compel on March 11, 2022. (ECF No. 63.) Plaintiff did not file a

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reply.

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On March 7, 2022, Plaintiff filed an opposition to the motion for summary judgment,

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(ECF No. 62), and Defendant filed a reply on March 14, 2022, (ECF No. 64). Plaintiff filed what

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appears to be a sur-reply on April 13, 2022, (ECF No. 66), and Defendant filed a motion to strike

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the sur-reply on April 18, 2022, (ECF No. 67). The motion for summary judgment is now fully

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briefed.
Pursuant to the Court’s November 22, 2021 discovery and scheduling order, the deadline

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for filing all dispositive motions (other than a motion for summary judgment for failure to

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exhaust) is October 3, 2022. (ECF No. 55.)
Currently before the Court is Defendant’s September 26, 2022 motion to vacate the

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scheduling order, which the Court construes as a motion to modify the Court’s discovery and

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scheduling order. (ECF No. 68.) Although Plaintiff has not yet had an opportunity to respond to

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the motion, the Court finds a response unnecessary, and the motion is deemed submitted. Local

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Rule 230(l).

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II.

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Motion to Modify Discovery and Scheduling Order
Defendant requests that the Court vacate the current scheduling order pending a ruling on

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Defendant’s motion for summary judgment raising an exhaustion defense. (ECF No. 68.)

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Defendant contends that the pending motion for summary judgment may dispose of the entire

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case, the Court has previously stayed discovery at the request of Defendant and without

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opposition by Plaintiff, the parties have not completed fact based discovery to address the

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questions of fact present in this matter, and the expenditure of resources required to prepare and

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submit a dispositive motion will be needless if the Court grants Defendant’s motion for summary

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judgment. Specifically, Defendant requests that the Court vacate the current dispositive motion

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deadline, and a new discovery and scheduling order should be issued, if necessary, following
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resolution of the motion for summary judgment based on exhaustion. (Id.)

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In light of the pending motion for summary judgment, and the possibility that the motion

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may dispose of the entire action, the Court finds good cause to grant Defendant’s motion. The

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Court will vacate the current dispositive motion deadline, to be reset as necessary following

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resolution of the pending motion for summary judgment.

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III.

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Order
Based on the foregoing, IT IS HEREBY ORDERED as follows:

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1. Defendant’s motion to vacate scheduling order, (ECF No. 68), is GRANTED;

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2. The deadline for filing all dispositive motions (other than a motion for summary judgment

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for failure to exhaust) is VACATED; and
3. As necessary and appropriate, the Court will reset the dispositive motion deadline
following resolution of the pending motion for summary judgment.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 28, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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