Williams v. Arnold et al

Filing 34

ORDER signed by Magistrate Judge Deborah Barnes on 12/29/16 ORDERING that plaintiff's September 2, 2016 motion for reconsideration (ECF No. 30 ) is DENIED; and defendants' November 14, 2016 motion to modify the Discovery and Scheduling Order 33 is GRANTED. If defendants' summary judgment motion is denied, the court will set new deadlines for discovery and pretrial motions.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, 12 Plaintiff, 13 14 No. 2:15-cv-0782 DB P v. ORDER ERIC ARNOLD, et al., 15 Defendant. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 18 action under 42 U.S.C. § 1983. Before the court is plaintiff’s motion for reconsideration of an 19 order denying his request to correspond with an inmate witness. Plaintiff contends that he needs 20 to correspond with the inmate witness to obtain an affidavit to oppose defendants’ summary 21 judgment motion. Also before the court is defendants’ motion to modify the Discovery and 22 Scheduling Order to permit further discovery and pretrial motions if defendants' pending motion 23 for summary judgment is denied. Background 24 Plaintiff initiated this action with a complaint signed on April 8, 2015 and filed here on 25 26 April 10, 2015. (ECF No. 1.) The case is proceeding on plaintiff’s first amended complaint filed 27 on October 28, 2015. (ECF No. 14.) Therein, plaintiff alleges Eighth Amendment violations by 28 //// 1 1 defendant Romero for excessive force and by defendants Romero, Abarra, and La for deliberate 2 indifference to plaintiff’s medical needs. 3 After defendants answered the complaint, the court issued a Discovery and Scheduling 4 Order setting a November 18, 2016 deadline for discovery and a February 10, 2017 deadline for 5 pretrial motions. (ECF No. 23.) On July 29, 2016, defendants moved for summary judgment. 6 (ECF No. 24.) Defendants argue that plaintiff failed to exhaust his administrative remedies 7 before filing this action. 8 9 In a motion filed August 10, 2016, plaintiff sought an order allowing him to have limited correspondence with an inmate witness. (ECF No. 27.) On August 18, 2016, the court denied the 10 motion because plaintiff failed to show the affidavit(s) he sought were relevant to the issues 11 raised by defendants' motion for summary judgment. (ECF No. 29.) 12 In a motion filed September 2, 2016, plaintiff seeks reconsideration of the court’s August 13 18 order. (ECF No. 30.) Since then, plaintiff filed an opposition to defendants’ summary 14 judgment motion and defendants filed a reply. (ECF Nos. 31, 32.) On November 14, 2016, 15 defendants moved to modify the Discovery and Scheduling Order issued on July 27, 2016. (ECF 16 No. 33.) 17 18 Plaintiff’s Motion for Reconsideration The court will reconsider a ruling on a motion upon a showing that “new or different facts 19 or circumstances are claimed to exist which did not exist or were not shown upon such prior 20 motion, or what other grounds exist for the motion; and . . . why the facts or circumstances were 21 not shown at the time of the prior motion.” E.D. Cal. R. 230(j). Plaintiff now alleges that inmate 22 witness Liggins, with whom he seeks to communicate, “would assert that he assisted, counseled 23 plaintiff in the exhaustion process due to plaintiff’s mental health disabilities . . . [and] would 24 assert why no 3rd level decision was rendered on initial 602 appeal and why complaint was filed 25 when it was.” (ECF No. 30 at 1.) According to plaintiff, Liggins’ affidavit is necessary to show 26 why plaintiff should be excused from the exhaustion requirement. 27 Plaintiff will only be excused from the exhaustion requirement if he can show the 28 appropriate grievance procedures were “unavailable” to him. See Ross v. Blake, 136 S. Ct. 1850, 2 1 1859-60 (2016). Plaintiff does not show why inmate Liggins has more knowledge about the 2 availability of the grievance and appeal procedures. In fact, in plaintiff’s opposition to the 3 summary judgment motion, plaintiff states that Liggins only helped him file the original 602 4 appeal. (ECF No. 31 at 3.) Plaintiff makes no assertion in the opposition that Liggins was 5 involved in the other aspects of plaintiff’s grievance process or that plaintiff himself was unaware 6 of what happened. For these reasons, the court finds plaintiff has failed to show a need to 7 communicate with Liggins to obtain his affidavit to oppose the summary judgment motion. 8 9 Defendants' Motion to Modify Discovery and Scheduling Order On November 14, 2016, defendants filed a motion to modify the Discovery and 10 Scheduling Order to permit additional discovery and pretrial motions after a decision on the 11 pending motion for summary judgment. Defendants argue that they limited their summary 12 judgment motion to exhaustion issues in the interests of most efficiently resolving this action. 13 The court agrees that if defendants’ motion for summary judgment is denied, the parties should be 14 permitted further discovery and pretrial motions on the substance of plaintiff’s complaint. 15 Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows: 16 1. Plaintiff’s September 2, 2016 motion for reconsideration (ECF No. 30) is denied; and 17 2. Defendants’ November 14, 2016 motion to modify the Discovery and Scheduling 18 Order is granted. See Fed. R. Civ. P. 16(b)(4). If defendants' summary judgment 19 motion is denied, the court will set new deadlines for discovery and pretrial motions. 20 Dated: December 29, 2016 21 22 23 24 DLB:9 DLB1/prisoner-civil rights/will0782.recon 25 26 27 28 3

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