Howard v. Williamson et al

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 4/10/2017 ORDERING defendants' 20 motion is GRANTED ; discovery is STAYED pending resolution of the motion for summary judgment; the 3/7/2017 discovery and scheduling order is VACATED; plaintiff's 21 motion filed 3/30/2017, is PARTIALLY GRANTED; and plaintiff shall file his opposition to the motion for summary judgment within 60 days. Defendants' reply, if any, shall be filed 14 days thereafter. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY HOWARD,

Case No. 2:16-cv-1200 TLN KJN P

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Plaintiff, ORDER
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v.
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S. WILLIAMSON, et al. ,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On March 7, 2017, defendants

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filed a motion for summary judgment on the grounds that plaintiff failed to exhaust administrative

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remedies, and his claims are barred by the statute of limitations. Defendants aver that plaintiff

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submitted no administrative appeals concerning the claims raised herein, and that because

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plaintiff is serving a sentence of life without parole, his complaint was filed seven months after

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the limitations period expired. Plaintiff was previously advised of the administrative exhaustion

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requirement in Howard v. Virga, Case No. 2:13-cv-1523 KJN (E.D. Cal.). On March 21, 2017,

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defendants filed a motion to stay discovery and vacate the scheduling order pending resolution of

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their motion. On March 30, 2017, plaintiff filed a request for an additional sixty days in which to

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oppose the motion. Plaintiff claims he needs additional time to “obtain discovery evidence” in

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support of his opposition to the pending motion.

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Defendants argue that no additional discovery is required regarding the grounds at issue

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because plaintiff has possession of, or access to, his administrative appeals and his own

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documents concerning his appeals, and the complaint and abstract of judgment contain all the

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facts necessary to determine whether plaintiff’s claims are barred and whether he is entitled to

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any tolling. (ECF No. 20-1 at 3.) In his request for extension, plaintiff does not identify the

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nature of the discovery sought, and does not identify the evidence he would seek through

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discovery or explain how it would rebut defendants’ motion. Plaintiff has access to his

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administrative appeals in his prison records.

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Therefore, the undersigned finds good cause to stay all discovery pending resolution of the

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instant motion. However, plaintiff is granted an additional sixty days in which to file his

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opposition to the motion. The court is not inclined to grant additional extensions of time. The

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discovery and scheduling order is vacated pending resolution of the summary judgment motion.

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The undersigned will reopen discovery, and issue a revised discovery and scheduling order, if

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appropriate, following resolution of defendants’ motion for summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion (ECF No. 20) is granted;

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2. Discovery is stayed pending resolution of the motion for summary judgment;

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3. The March 7, 2017 discovery and scheduling order (ECF No. 18) is vacated;

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4. Plaintiff’s March 30, 2017 motion (ECF No. 21) is partially granted; and

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5. Plaintiff shall file his opposition to the motion for summary judgment within sixty days

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from the date of this order. Defendants’ reply, if any, shall be filed fourteen days thereafter.

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Dated: April 10, 2017

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/howa1200.sty