Endsley v. Mayberg et al

Filing 36

ORDER vacating 33 Motion for Summary Judgment signed by Magistrate Judge Gregory G. Hollows on 05/11/11. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARC ANTHONY LOWELL ENDSLEY,

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Plaintiff,

No. CIV S-09-2311 WBS GGH P

vs.
STEPHEN MAYBERG, et al.,
Defendants.

ORDER
/

Plaintiff pro se, civilly committed to a state mental hospital, seeks relief pursuant

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to 42 U.S.C.§ 1983. Plaintiff filed a motion for partial summary judgment on April 13, 2011.

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On April 15, 2011, defendants filed a response to a request for an extension of time to plaintiff’s

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putative request for 45 more days to respond to discovery requests from all five defendants.

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Defendants stated they had no objection so long as defendants were granted an extension of time

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to respond to plaintiff’s partial summary judgment motion. On April 27, 2011, defendants filed

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an ex parte application either for the court to deny plaintiff’s partial summary judgment motion

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or for the court to grant a continuance under Fed. R. Civ. P. 56(d) for defendants to respond to

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plaintiff’s partial summary judgment motion until the dispositive motion deadline. Plaintiff has

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filed no response to these filings, nor is there evidence in the case docket that he filed the

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extension request defendants reference.

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Defendants indicate the discovery requests were served on March 1, 2011.
Plaintiff’s responses therefore would be due by April 15, 2011, but pursuant to a 45-day
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extension would be due on May 30, 2011. There being no record of plaintiff’s having sought an

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extension of time to serve discovery responses, the court is left to infer that defendants

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themselves have at least implicitly permitted plaintiff the additional time as defendants have not

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brought a motion to compel discovery. Currently, the discovery and scheduling order set the

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discovery cut-off date as July 27, 2011. The dispositive motion deadline is currently set for

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November 8, 2011.

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Plaintiff’s discovery responses are evidently to be served by or before May 30,

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2011; if necessary, defendants would have ample time between May 30, 2011, and July 27, 2011,

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the discovery deadline, to bring any motion to compel. As to the pending motion, defendants

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should not be required to oppose plaintiff’s partial summary judgment motion while he has not

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served any discovery responses defendants deem important to any opposition. See Christina

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Carroll Declaration, docket # 35. The court will not require defendants to file an opposition to

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any form of a summary judgment motion brought before discovery closes. Defendants indicate

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their intention to file their own dispositive motion by November 8, 2011. Plaintiff is premature

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in seeking any form of summary judgment where arguably relevant discovery remains

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outstanding and his motion for partial summary judgment will be vacated without prejudice to

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his re-noticing it after discovery closes.

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IT IS ORDERED that plaintiff’s premature motion for partial summary judgment,

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filed on April 13, 2011 (docket # 33), is hereby vacated from the court’s calendar, subject to

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plaintiff’s re-noticing it once discovery closes.

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DATED: May 11, 2011

/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE
GGH:009

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ends2311.ord

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