Mason v. Martinez, et al.

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 06/26/15 ordering plaintiff's motion for judicial notice 31 is denied in part and granted in part. The motion is denied to the extent that the court will not take judicial notice of the facts put forth by plaintiff and granted to the extent plaintiff seeks to have his letter to defendants' counsel considered as an exhibit to his motion to compel. Plaintiff's motion to file a supplemental declaration 34 is denied. Defendants ' motion to modify the scheduling order 35 is granted. The 7/25/15 pretrial motion deadline is hereby vacated and will be re-set upon resolution of defendants' motion for partial summary judgment and plaintiff's motion to compel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAVOUGUE A. MASON,

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Plaintiff,

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No. 2:14-cv-1041 MCE AC P

v.

ORDER

M.L. MARTINEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court are plaintiff’s motion for judicial notice (ECF No. 31),

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plaintiff’s motion for leave to file a supplemental declaration in support of his opposition to

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defendants’ motion for summary judgment (ECF No. 34), and defendants’ motion to modify the

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scheduling order (ECF No. 35).1

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I.

Motion for Judicial Notice

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In his motion, plaintiff asks the court to take judicial notice of his “attempts to resolve the

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failures and defendant’s [sic] less than truthful responses” to his discovery requests. ECF No. 31.

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The court may take notice of facts that are capable of accurate and ready determination by resort

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Also pending are defendants’ motion for partial summary judgment (ECF No. 22), defendants’
motion to strike plaintiff’s surreply (ECF No. 28), and plaintiff’s motion to compel (ECF No. 29),
which are not addressed by this order and will be considered by the court in due course.
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to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States

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v. Bernal–Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Plaintiff’s characterization of his

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interactions with counsel for defendants is not the kind of fact subject to judicial notice, and the

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court will therefore deny the motion for judicial notice. However, to the extent plaintiff is

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offering his letter to defendants’ counsel (ECF No. 31 at 3-5) as a supplemental exhibit to his

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motion to compel, the court will consider it.

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II.

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Motion for Leave to File a Supplemental Declaration
Plaintiff moves for leave to file a supplemental declaration in support of his response to

defendants’ motion for partial summary judgment. ECF No. 34. The declaration plaintiff

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submits is from another inmate who claims to have witnessed the incident at issue in this case.

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ECF No. 34 at 2. However, defendants’ motion for partial summary judgment is not based on the

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merits of the case, but instead is based on defendants’ claim that plaintiff did not exhaust his

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administrative remedies. ECF No. 22. Since the contents of the declaration submitted by

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plaintiff are irrelevant to whether plaintiff exhausted his administrative remedies, plaintiff’s

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motion will be denied. This does not preclude plaintiff from using the declaration in support of

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any future motion for summary judgment or response.

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III.

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Motion to Modify Scheduling Order
Because of their pending motion for partial summary judgment for failure to exhaust and

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plaintiff’s motion to compel, defendants’ move to vacate the current July 10, 2015 pretrial motion

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deadline and request the deadline be re-set once the pending motions have been resolved. ECF

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No. 35. Defendants’ request is well taken, since the resolution of their motion for summary

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judgment based on failure to exhaust will impact the scope of any merits based summary-

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judgment motion they may seek to file. Additionally, effective case management supports

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resolving plaintiff’s pending motion to compel prior to the expiration of the time to submit

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dispositive motions. For these reasons, the court will grant defendants’ motion and vacate the

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July 10, 2015 pretrial motion deadline. The deadline will be re-set upon resolution of the

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defendants’ motion for partial summary judgment and plaintiff’s motion to compel.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Plaintiff’s motion for judicial notice (ECF No. 31) is denied in part and granted in part.

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The motion is denied to the extent that the court will not take judicial notice of the facts put forth

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by plaintiff and granted to the extent plaintiff seeks to have his letter to defendants’ counsel

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considered as an exhibit to his motion to compel.

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2. Plaintiff’s motion to file a supplemental declaration (ECF No. 34) is denied.

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3. Defendants’ motion to modify the scheduling order (ECF No. 35) is granted. The July

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10, 2015 pretrial motion deadline is hereby vacated and will be re-set upon resolution of

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defendants’ motion for partial summary judgment and plaintiff’s motion to compel.

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DATED: June 26, 2015

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