Mosley v. Beard, et al

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 10/13/2017 GRANTING defendants' 34 motion for protective order and all non-exhaustion related discovery is STAYED pending the resolution of defendants' motion for summary judgment. Defen dants 35 motion to modify the scheduling order is GRANTED: (a) Discovery is due by 3/15/2018 and all requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date; (b) Dispositive motions must be filed by June 9, 2018. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLTON V. MOSLEY,

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Plaintiff,

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No. 2:16-cv-00486 JAM AC P

v.

ORDER

JEFFREY BEARD, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought

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under 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment based on

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plaintiff’s failure to exhaust administrative remedies. ECF No. 33. Plaintiff’s deadline to file an

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opposition to this motion is October 26, 2017. Related to their motion for summary judgment,

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defendants have filed two discovery-related motions which this order will dispose of. First,

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defendants seek a protective order staying all discovery, save for that which pertains to the issue

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of exhaustion, until the court rules on the motion for summary judgment. ECF No. 34. Second,

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defendants move for modification of the scheduling order, to extend the deadline for discovery to

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March 15, 2018 and the deadline for dispositive motions to June 9, 2018. ECF No. 35. For the

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reasons stated below, both motions will be granted.

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Motion for Protective Order

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Under Rule 26(c)(1), a court may issue a protective order forbidding or limiting discovery.

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The avoidance of undue burden or expense is grounds for the issuance of a protective order, Fed.

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R. Civ. P. 26(c), and a stay of discovery pending resolution of a potentially dispositive issue

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generally furthers the goal of efficiency for both the court and the parties. See Little v. City of

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Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (affirming stay of discovery pending resolution of

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immunity issue). The propriety of delaying discovery on the merits of the plaintiff's claims

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pending resolution of an exhaustion motion was explicitly recognized by the Ninth Circuit.

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Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (en banc) (“Exhaustion should be decided, if

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feasible, before reaching the merits of a prisoner's claim. If discovery is appropriate, the district

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court may in its discretion limit discovery to evidence concerning exhaustion, leaving until

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later—if it becomes necessary—discovery directed to the merits of the suit.”).

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Defendants argue that their pending motion for summary judgment, if granted, will

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resolve this case in its entirety. ECF No. 34-1 at 6. The court agrees. The court also finds that

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plaintiff’s ability to oppose the pending motion will not be prejudiced by the stay, given that it

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specifically exempts discovery related to the issue of exhaustion. ECF No. 34 at 7. Finally, it is

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evident that staying discovery until the pending motion for summary judgment is disposed of

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promotes the interests of efficiency. In the event defendants’ motion is denied, a modest delay in

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non-exhaustion related discovery will not prejudice plaintiff.

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Motion to Modify Scheduling Order

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Under the current scheduling order, the discovery cut-off date is December 15, 2017 and

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the last day to propound discovery is October 16, 2017. ECF No. 32. The current dispositive

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motion deadline is March 9, 2018. Id. Defendants have moved to extend the discovery cut-off

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deadline to March 15, 2018 and the deadline for dispositive motions to June 9, 2018. ECF No.

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35. The court agrees that, in the event the pending motion for summary judgment is denied,

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modification of the scheduling order will be necessary. Accordingly, it will grant defendants’

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motion.

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Conclusion

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It is ORDERED that:

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1.

Defendants’ motion for protective order (ECF No. 34) is GRANTED and all non-

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exhaustion related discovery is stayed pending the resolution of defendants’ motion for summary

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judgment (ECF No. 33);

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2.

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Defendant’s motion to modify the scheduling order (ECF No. 35) is GRANTED:
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The discovery cut-off is now March 15, 2018 and all requests for discovery

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pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that

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date.

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b.

Dispositive motions must be filed by June 9, 2018.

DATED: October 13, 2017

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