Nunez v. Porter, et al

Filing 82

ORDER signed by Magistrate Judge Kendall J. Newman on 09/27/16 ordering plaintiffs motion for a safe teleconference 76 is denied. Plaintiffs motion to produce witnesses at trial 79 is denied. Plaintiffs motion to reopen discovery 80 is granted in part and denied in part. It is granted to the extent that discovery will be reopened for the limited purpose of allowing defendant Porter to respond to the Request for Admissions and Request for Production of Documents plaintiff served on defendan t on December 3, 2015. Defendant Porter shall serve her responses to plaintiffs discovery requests within thirty days from the filing date of this order. In all other respects, plaintiffs motion to reopen discovery is denied. Plaintiff will not be pe rmitted to serve any new discovery requests on defendant Porter. Defendants motion for summary judgment 77 is denied without prejudice to its renewal after defendant has served her responses to plaintiffs discovery requests. Defendant is not requir ed to re-file the motion and supporting documents, but may reference the prior filings in the notice. Plaintiff shall file an opposition, or statement of non-opposition, to the re-noticed motion within thirty days after the notice is served. Defendants reply, if any, shall be filed within twenty-one days thereafter. Plaintiffs motion for an extension of time to oppose defendants motion for summary judgment time 80 at 8 is denied as moot.(Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CURTIS NUNEZ, JR.,

12
13
14

No. 2:12-cv-2775 JAM KJN P

Plaintiff,
v.

ORDER

K. M. PORTER, et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights

18

action pursuant to 42 U.S.C. § 1983. This action proceeds on the original complaint against

19

Officer Porter, the sole remaining defendant, for alleged retaliation in violation of plaintiff’s First

20

Amendment rights. Defendant’s summary judgment motion is pending. This order addresses

21

various motions filed by plaintiff.

22

I.

Motion for Safe Teleconference

23

On December 11, 2016, the court received plaintiff’s motion requesting that the court

24

ensure plaintiff’s safety during his deposition. (ECF No. 76.) As it appears plaintiff’s deposition

25

was taken without incident on or about December 16, 2015, plaintiff request is denied as moot.

26

II.

27

Plaintiff also filed a motion to produce witnesses at trial. (ECF No. 79.) As plaintiff’s

28

Motion to Produce Witnesses at Trial

case has not yet been set for trial, nor survived summary judgment, plaintiff’s motion is

1

premature and is denied.
Motion to Stay Defendant’s Summary Judgment Motion and Reopen Discovery

2

III.

3

In the instant case, the deadline for conducting discovery expired on December 25, 2015.

4

(See ECF No. 70.) Defendant Porter, the sole remaining defendant, filed a motion for summary

5

judgment on February 25, 2016. (ECF No. 77.) In response, plaintiff filed a request to stay

6

defendant’s summary judgment motion pending additional discovery. (See ECF No. 81.) In his

7

request, asserts that he was unfairly denied the opportunity to conduct discovery with respect to

8

defendant Porter due to his pro se status and confusion over the different “phases” of the instant

9

lawsuit. (See id. at 1-3, 8.) Plaintiff apparently believed that the discovery permitted thus far

10

pertained only to the issue of exhaustion of administrative remedies related to now-dismissed

11

defendants Caraballo, Till, and Norton. Plaintiff asserts that he did not understand that he could

12

conduct discovery as to defendant Porter, because Porter “was not part of the exhaustion phase,”

13

and that it would be unfair for plaintiff, as a pro se prisoner, to lose his opportunity to conduct

14

discovery because of his ignorance of the law. (See id.)

15

Defendant Porter opposed the motion, asserting that plaintiff has not shown good cause to

16

reopen discovery. (ECF No. 81 at 1.) Defendant asserts that plaintiff was aware that the

17

discovery deadline applied to defendant Porter, as defendant Porter was the only remaining

18

defendant at the time the Discovery and Scheduling Order was issued. (Id.) Defendant further

19

asserts that plaintiff served defendant Porter with discovery requests (which defendant did not

20

respond to on timeliness grounds), and therefore must have known he could conduct discovery as

21

to defendant Porter. (Id. at 2-3.) Finally, defendant asserts that further discovery is unnecessary,

22

as plaintiff has personal knowledge of the facts he will rely on to oppose defendant’s summary

23

judgment motion. (Id. at 1.)

24
25

A. Legal Standards
Where a party requests to reopen discovery after discovery has closed, the request also

26

must meet the requirements of Federal Rule of Civil Procedure 16. Federal Rule of Civil

27

Procedure 16(b)(4) allows the Court to modify its scheduling order for good cause. The “good

28

cause” standard focuses primarily on the diligence of the party seeking the amendment. Johnson
2

1

v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “[C]arelessness is not

2

compatible with a finding of diligence and offers no reason for a grant of relief.” Id. “Although

3

the existence or degree of prejudice to the party opposing the modification might supply

4

additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons

5

for seeking modification.” Id. The Court has wide discretion to extend time, Jenkins v.

6

Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996), provided a party

7

demonstrate some justification for the issuance of the enlargement order. Fed. R. Civ. P. 6(b)(1);

8

Ginett v. Fed. Express Corp., 166 F.3d 1213 at *5 (6th Cir. 1998).

9

B. Procedural Background
The following background is relevant to plaintiff’s explanation as to why he did not

10
11

understand the timeframe for conducting discovery related to defendant Porter.

12

The operative complaint, ECF No. 1, was filed on November 9, 2012. The complaint

13

named four defendants: Porter, Caraballo, Till, and Norton. (See ECF No. 1.) Upon screening,

14

the court found that the complaint stated potentially cognizable claims against all four defendants

15

for violations of plaintiff’s First and Fourteenth Amendment rights. (ECF No. 8.)

16

On April 11, 2013, defendants filed their initial motion to dismiss plaintiff’s claims

17

against defendants Caraballo, Till, and Norton on the ground that plaintiff failed to exhaust

18

administrative remedies before filing suit. (ECF No. 20.) For reasons not directly relevant here,1

19
20
21
22
23
24
25
26
27
28

1

The procedural history was summarized in the court’s May 14, 2015 Findings and
Recommendations, ECF No. 62 at 5-6, as follows:
On March 26, 2014, the court filed an order and findings and
recommendations addressing defendants’ initial motion to dismiss.
(ECF No. 36.) The court recommended therein that defendants Till,
Norton, and Caraballo be dismissed from the action due to
plaintiff’s failure to exhaust administrative remedies with respect to
his First Amendment claims against them. (Id. at 13.) The court
also recommended that plaintiff’s Fourteenth Amendment claims be
dismissed as to all defendants for failure to state a claim. (Id. at
16.)
Shortly thereafter, on April 7, 2014, the Ninth Circuit issued Albino
v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), holding that
challenges to a prisoner’s claims based on a failure to exhaust
administrative remedies could no longer be raised by an
“unenumerated Rule 12(b) motion.” . . . Consequently, by order
3

1

the issue of exhaustion was not resolved until over two years later, when the undersigned issued

2

findings and recommendations on May 14, 2015, recommending that defendants’ February 24,

3

2015 motion for summary judgment be granted, and plaintiff’s claims against defendants

4

Caraballo, Till, and Norton be dismissed without prejudice as unexhausted. (ECF No. 62.) This

5

recommendation was adopted in full by the district judge on July 9, 2015. (ECF No. 64.)

6
7

On July 30, 2015, defendant Porter, the only remaining defendant, answered the
complaint. (ECF No. 66.)

8

On August 6, 2015, plaintiff constructively filed a Notice of Appeal.2 (ECF No. 68.) In

9

his appeal, plaintiff challenged the dismissal of his claims against Till and Norton on exhaustion

10

grounds. (See id. at 1-2.) On August 11, 2015, plaintiff was served with a notification from the

11
dated April 18, 2014, the undersigned withdrew the findings and
recommendations filed on March 26, 2014, denied defendants’
motion to dismiss for failure to exhaust administrative remedies,
and granted defendants leave to file a motion for summary
judgment in which they could again raise the exhaustion defense.
(ECF No. 39.)

12
13
14
15

On June 5, 2014, defendants filed a renewed motion to dismiss
plaintiff’s Fourteenth Amendment claims as to all defendants for
failure to state a claim. (ECF No. 44.)
Two weeks earlier,
defendants Till, Norton, and Caraballo had filed a motion for
summary judgment contending that plaintiff had failed to exhaust
administrative remedies with respect to his First Amendment claims
against them. (ECF No. 40.) However, defendants committed a
procedural error by failing to file and serve a separate statement of
undisputed facts in support of their motion for summary judgment,
despite repeatedly referencing such a statement in their points and
authorities.
Accordingly, the court issued findings and
recommendations recommending that defendants’ motion to
dismiss plaintiff’s Fourteenth Amendment claims be granted and
ordering that the motion for summary judgment be denied without
prejudice to its re-filing within 14 days. (ECF No. 52.) On March
23, 2015, the assigned district judge adopted these findings and
recommendations in their entirety.

16
17
18
19
20
21
22
23
24

On February 24, 2015, defendants Caraballo, Till and Norton filed a
renewed motion for summary judgment, based on plaintiff’s failure
to exhaust available administrative remedies as to his First
Amendment claims against them,1 and supported by a separate
statement of undisputed facts. (ECF No. 53.)

25
26
27
28

2

Because plaintiff is proceeding pro se, he is afforded the benefit of the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266, 276 (1988).
4

1

court that his appeal had been processed to the Ninth Circuit Court of Appeals. (See ECF No.

2

69.)

3

Also on August 11, 2015, the undersigned issued a Discovery and Scheduling Order

4

(DSO). (ECF No. 70.) The DSO provided that the parties could conduct discovery until

5

December 25, 2015 and that all discovery requests should be served not later than sixty days prior

6

to that date. (ECF No. 70.) The deadline for the filing of pretrial motions, except motions to

7

compel discovery, was set for February 26, 2016. (See ECF No. 70.)
On September 16, 2015, the Ninth Circuit Court of Appeals dismissed plaintiff’s appeal

8
9
10

for lack of jurisdiction. (See ECF No. 72.) On October 13, 2015, the judgment of the Ninth
Circuit took effect. (ECF No. 73.)
According to defendant Porter, on December 3, 2015,3 plaintiff served a Request for

11
12

Admissions and Request for Production of Documents on defendant Porter. (See ECF No. 81-1

13

at 2.) In response, counsel for defendant Porter sent plaintiff a letter informing him that because

14

the discovery deadline had passed,4 defendant would not be responding to plaintiff’s discovery

15

requests.5 (See id.)

16

On December 18, 2015, counsel for defendant Porter took plaintiff’s deposition.

17

On February 25, 2016, defendant filed a motion for summary judgment. (ECF No. 77.)

18

Plaintiff’s motion to stay defendant’s summary judgment motion and reopen discovery was

19

constructively filed on March 14, 2016. (ECF No. 80.)

20

C. Discussion

21

The undersigned finds that plaintiff has not established good cause to re-open discovery

22

for all purposes. While plaintiff asserts that he believed the August 11, 2015 Discovery and

23

Scheduling Order pertained only to defendants Till, Caraballo, and Norton, and did not realize he

24
3

25

It is not entirely clear whether December 3, 2015 is the date plaintiff delivered his requests to
prison authorities for mailing, or the date defendant received the requests.

26

4

27
28

Defendant Porter explains in her opposition that plaintiff’s requests should have been served by
October 26, 2015, sixty days before the December 25, 2015 discovery deadline.
5

Defendant Porter does not indicate when this letter was sent to plaintiff.
5

1

could conduct discovery related to defendant Porter, it is apparent from the fact that plaintiff

2

eventually served defendant Porter with discovery requests that plaintiff later understood he could

3

conduct discovery related to defendant Porter. At that time, on or about December 3, 2015,

4

plaintiff chose to serve defendant Porter with one set of Request for Admissions and one set of

5

Requests for Production of Documents, and no additional requests. As plaintiff apparently

6

understood before discovery closed on December 25, 2015, that he could serve defendant Porter

7

with discovery requests, yet chose to serve no additional requests, the court does not find good

8

cause to reopen discovery for all purposes or permit plaintiff to serve any new discovery requests

9

on defendant Porter.

10

However, with respect to the discovery requests that plaintiff already served on defendant

11

Porter, the court is concerned that the protracted procedural history in this case related to

12

defendants’ motions to dismiss and motions for summary judgment on exhaustion grounds may

13

have contributed to plaintiff’s confusion and subsequent delay in serving his discovery requests.

14

As explained above, the issue of exhaustion in this case was litigated for two years, and on the

15

same day the DSO was issued with respect to defendant Porter, plaintiff was served with a

16

notification that his appeal challenging the dismissal of defendants Till and Norton on exhaustion

17

grounds had been filed in the Ninth Circuit. The judgment of the Ninth Circuit dismissing

18

plaintiff’s appeal on the matter of exhaustion did not become final until October 13, 2016, only

19

13 days before plaintiff should have served his discovery requests on defendant Porter in order to

20

comply with the requirement that discovery requests be served sixty days prior to the December

21

25, 2015 discovery deadline. While plaintiff was certainly mistaken in his initial belief that the

22

DSO applied to the “exhaustion phase” and did not apply to defendant Porter, plaintiff’s

23

confusion over the procedural developments in this case is understandable, in light of plaintiff’s

24

then-ongoing appeal to the Ninth Circuit on the issue of exhaustion.

25

Pro se litigants are not held to the same standards as attorneys, see Walker v. Karela, 2009

26

WL 3075575, *1 (E.D. Cal. 2009), and courts have a duty to “ensure that pro se litigants do not

27

lose their right to a hearing on the merits of their claim due to ignorance of technical procedural

28

requirements,” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Given
6

1

plaintiff’s status as prisoner proceeding pro se, plaintiff’s apparent confusion regarding the

2

discovery and scheduling order and the resolution of defendants’ claim that plaintiff failed to

3

exhaust administrative remedies, and the fact that plaintiff served his discovery requests before

4

discovery closed on December 25, 2015, the court finds good cause to reopen discovery for the

5

limited purpose of requiring defendant Porter to respond to plaintiff’s previously-served

6

discovery requests.

7

Therefore, defendant Porter shall be required to respond to the Request for Admissions

8

and Request for Production of Documents that plaintiff previously served on defendant.6

9

Discovery shall be reopened for the limited purpose of allowing defendant Porter to serve her

10

responses to these requests on plaintiff. Plaintiff shall not be permitted to serve any new

11

discovery requests on defendant Porter.
Defendant’s pending motion for summary judgment is denied without prejudice to its

12
13

renewal following service of defendant’s discovery responses on plaintiff. Defendant is not

14

required to re-file the previous summary judgment motion in toto, but may simply re-notice the

15

motion and refer to the prior pleadings.

16

In opposition to such re-notice, plaintiff shall file a complete opposition, which includes

17

the “objections” to defendant’s summary judgment motion contained in the instant motion to

18

reopen discovery. Plaintiff is cautioned that the court will not read or rely on the objections

19

contained in his motion to reopen discovery, but expects plaintiff’s opposition to be complete in

20

itself. Following the filing of plaintiff’s opposition, defendant may file a reply. Defendant’s

21

reply shall be complete in itself, with the exception that defendant may refer to the previously

22

filed exhibits without re-filing.

23

////

24

////

25

6

26
27
28

The court recognizes that, in connection with her motion for summary judgment, defendant
Porter may have already provided plaintiff with the documents identified in plaintiff’s Request for
Production of Documents. If that is the case, defendant Porter may indicate as much in the
responses she serves on plaintiff, and need not provide the documents to plaintiff again.
However, because the court has not been provided with a copy of plaintiff’s discovery requests,
the court cannot determine whether plaintiff’s requests are now moot.
7

1

IV.

2

In accordance with the above, IT IS HEREBY ORDERED that:

3

1. Plaintiff’s motion for a safe teleconference (ECF No. 76) is denied.

4

2. Plaintiff’s motion to produce witnesses at trial (ECF No. 79) is denied.

5

3. Plaintiff’s motion to reopen discovery (ECF No. 80) is granted in part and denied in

Conclusion

6

part. It is granted to the extent that discovery will be reopened for the limited purpose

7

of allowing defendant Porter to respond to the Request for Admissions and Request

8

for Production of Documents plaintiff served on defendant on December 3, 2015.

9

Defendant Porter shall serve her responses to plaintiff’s discovery requests within

10

thirty days from the filing date of this order. In all other respects, plaintiff’s motion to

11

reopen discovery is denied. Plaintiff will not be permitted to serve any new discovery

12

requests on defendant Porter.

13

4. Defendant’s motion for summary judgment (ECF No. 77) is denied without prejudice

14

to its renewal after defendant has served her responses to plaintiff’s discovery

15

requests. Defendant is not required to re-file the motion and supporting documents,

16

but may reference the prior filings in the notice.

17

5. Plaintiff shall file an opposition, or statement of non-opposition, to the re-noticed

18

motion within thirty days after the notice is served. Defendant’s reply, if any, shall be

19

filed within twenty-one days thereafter.

20
21
22

6. Plaintiff’s motion for an extension of time to oppose defendant’s motion for summary
judgment time (ECF No. 80 at 8) is denied as moot.
Dated: September 27, 2016

23
24
25
/nune2775.disc. renotice

26
27
28
8