McCoy v. Stratton et al

Filing 77

ORDER signed by Magistrate Judge Deborah Barnes on 11/02/16 denying 66 Motion to Strike. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVON E. McCOY,

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No. 2:12-cv-1137 WBS DB

Plaintiff,
v.

ORDER

J. STRATTON, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. Defendants moved for summary judgment based on plaintiff’s alleged

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failure to exhaust his available administrative remedies prior to filing suit as required. (ECF No.

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36.) United States District Judge William B. Shubb adopted the findings and recommendations

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of then-Magistrate Judge Dale A. Drozd in granting in part and denying in part defendants’

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motion. (ECF No. 44.) In their summary judgment motion, defendants requested permission to

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file a second motion for summary judgment on the merits if the first one concerning exhaustion

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was not granted in full. (ECF No. 36 at 6 n. 1.) The court did not address that request in the

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findings and recommendation or the order on summary judgment.

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After filing an answer (ECF No. 45) to plaintiff’s complaint, defendants filed a second

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motion for summary judgment (ECF No. 51) addressing the merits of plaintiff’s complaint.

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Plaintiff filed an opposition (ECF No. 64) to the motion, but also filed a motion to strike (ECF
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No. 66) the second summary judgment for failure to comply with the Federal Rules of Civil

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Procedure and the Local Rules of the Eastern District of California.

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For the following reasons, plaintiff’s motion to strike is denied.

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District courts in the Ninth Circuit “have discretion to permit successive motions for

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summary judgment.” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). “[A]

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successive motion for summary judgment is particularly appropriate on an expanded factual

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record.” Id. Furthermore, where a district court addresses only the issue of exhaustion of

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administrative remedies in the first summary judgment motion, “‘allowing a party to file a second

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motion for summary judgment is logical, and it fosters the just, speedy, and inexpensive

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resolution of suits.’” Hill v. Davis, --- F. App’x ---, No. 15–15923, 2016 WL 4499806 (9th Cir.

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Aug. 26, 2016) (quoting Hoffman, 593 F.3d at 911-12).
Plaintiff’s motion to strike is denied because the first summary judgment motion in this

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matter addressed only the administrative remedies issue. In Albino v. Baca, the Ninth Circuit

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recently held that “[e]xhaustion should be decided, if feasible, before reaching the merits of a

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prisoner’s claim,” and that a summary judgment motion may be “directed solely to the issue of

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exhaustion.” 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc). Pursuant to Albino, the court

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addressed the administrative remedies issue at the outset without considering the merits of the

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case. Now, pursuant to Hoffman, the court has discretion to allow a second motion for summary

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judgment based upon an expanded record. There is now an expanded record on which to address

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the merits of the case, so, accordingly, the court grants defendants’ request to file a second

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summary judgment on the merits and denies plaintiff’s motion to strike. The court will address

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the second motion for summary judgment in a forthcoming findings and recommendations.
IT IS HEREBY ORDERED that plaintiff’s motion to strike is denied.

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Dated: November 2, 2016

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DLB:10

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DLB1 / Prisoner - Civil Rights / mcco1137.mts

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