Dicey v. Hanks et al

Filing 42

ORDER signed by Magistrate Judge Allison Claire on 12/22/15 ORDERING that plaintiff's 41 motion to re-open discovery is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BERLAN LYNELL DICEY,

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Plaintiff,

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No. 2:14-cv-2018 JAM AC P

v.

ORDER

W. HANKS, 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 is plaintiff’s motion to re-open discovery. ECF No.

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41.

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After the court screened and ordered service of the complaint, defendants Betti and Hanks

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filed an answer (ECF No. 14) while defendant Statti filed a motion to dismiss (ECF No. 15). The

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court issued a discovery and scheduling order as to defendants Betti and Hanks, but stayed the

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deadlines as to defendant Statti pending resolution of the motion to dismiss. ECF No. 18. The

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discovery deadline was set for June 10, 2015, with requests pursuant to Federal Rules of Civil

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Procedure 31, 33, 34, and 36 to be served no later than April 13, 2015. Id. at 5. On February 25,

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2015,1 plaintiff requested an additional thirty days to conduct discovery due to the removal of

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Since 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).
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legal assistance staff at the prison where he was housed. ECF No. 19. The court found the

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motion to be premature because the removal of staff had only just occurred and there was no

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evidence that it would impact plaintiff’s ability to meet the deadline which was still

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approximately a month and a half away at the time he filed his motion. ECF No. 20. Because the

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court did not rule on plaintiff’s motion until March 24, 2015, the motion was partially granted and

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the discovery deadline was extended two weeks, to June 24, 2015, with discovery requests to be

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submitted by April 27, 2015. Id. No further extensions were requested and discovery closed on

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June 24, 2015.

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On July 6, 2015, defendants moved to modify the discovery and scheduling order to

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extend the deadline for dispositive motions from September 2, 2015, to December 2, 2015. ECF

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No. 28. Defendants requested the extension because of defendant Statti’s then pending motion to

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dismiss. Id. Additional time was also requested because of counsel’s intent to file a motion for

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summary judgement on exhaustion followed by a merits-based motion if the exhaustion-based

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motion was unsuccessful. Id. On August 14, 2015, the undersigned granted the request for

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extension in part and granted a limited extension of the dispositive motion deadline. ECF No. 29

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at 8. The order was without prejudice to another motion seeking modification of the scheduling

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order if the exhaustion-based summary-judgment motion was unsuccessful. Id.

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On August 17, 2015, defendants Betti, Hanks, and Statti filed a motion for summary

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judgment based on plaintiff’s failure to exhaust. ECF No. 30. Plaintiff requested additional time

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to file an opposition to the motion (ECF No. 36) and his opposition was filed on October 19,

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2015. ECF No. 38. The motion has been fully briefed since November 17, 2015. ECF No. 40.

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Plaintiff now seeks to re-open discovery in order to request discovery from defendants Betti and

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Hanks regarding the grievance process and his grievances. ECF No. 41. He alleges that he

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neglected to conduct discovery previously because he was overwhelmed by defendant Statti’s

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motion to dismiss and his prison work assignment. Id. at 2. It is not clear whether plaintiff is

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seeking to re-open discovery to supplement his opposition or to allow discovery in the event the

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defendants’ summary-judgment motion is unsuccessful. Id. at 5.

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In his motion, plaintiff acknowledges that a significant amount of time has passed since
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the close of discovery and his request to re-open discovery, yet he offers no explanation for his

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failure to seek an additional extension of the time to conduct discovery. Id. at 2-3. Additionally,

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plaintiff’s request to extend the time to file an opposition and the opposition both fail to mention a

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need to obtain discovery in order to properly oppose the motion. ECF Nos. 36, 38, 39. Plaintiff’s

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request to re-open discovery as it relates to the issue of exhaustion is untimely and offers no

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explanation why he has waited so long since the close of discovery, or even since the filing of

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defendants’ summary-judgment motion, to request discovery be re-opened. Furthermore, in light

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of plaintiff’s previously filed opposition to the summary-judgment motion, which raised no

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concerns about needing additional information or documentation, the court finds it unnecessary to

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re-open discovery at this time. Plaintiff’s request to re-open discovery will therefore be denied.
To the extent plaintiff may be seeking to re-open discovery if defendants’ motion for

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summary judgment is unsuccessful, the court finds the request to be premature and notes that it

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would likely be unnecessary to conduct discovery on the issue of exhaustion at that time.

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However, if defendants’ motion is denied, the court will set deadlines for conducting discovery

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on the merits of the case and for filing merits-based dispositive motions.

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Summary

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Plaintiff’s motion to re-open discovery is denied because plaintiff waited too long to file

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the motion and did not explain why he waited for so long. The motion is also denied because

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plaintiff has already filed an opposition to defendants’ motion for summary judgment and he did

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not say that he needed more information to complete the opposition. If defendants’ motion for

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summary judgment is denied, the court will give the parties a chance to conduct discovery on

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plaintiff’s claims against defendants Betti and Hanks before summary-judgment motions about

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plaintiff’s claims are due.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to re-open discovery

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(ECF No. 41) is denied.

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DATED: December 22, 2015

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