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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY HOWARD, Case No. 2:16-cv-1200 TLN KJN P 12 Plaintiff, ORDER 13 v. 14 15 16 S. WILLIAMSON, et al. , Defendants. 17 18 Plaintiff is a state prisoner, proceeding without counsel. On March 7, 2017, defendants 19 filed a motion for summary judgment on the grounds that plaintiff failed to exhaust administrative 20 remedies, and his claims are barred by the statute of limitations. Defendants aver that plaintiff 21 submitted no administrative appeals concerning the claims raised herein, and that because 22 plaintiff is serving a sentence of life without parole, his complaint was filed seven months after 23 the limitations period expired. Plaintiff was previously advised of the administrative exhaustion 24 requirement in Howard v. Virga, Case No. 2:13-cv-1523 KJN (E.D. Cal.). On March 21, 2017, 25 defendants filed a motion to stay discovery and vacate the scheduling order pending resolution of 26 their motion. On March 30, 2017, plaintiff filed a request for an additional sixty days in which to 27 oppose the motion. Plaintiff claims he needs additional time to “obtain discovery evidence” in 28 support of his opposition to the pending motion. 1 Defendants argue that no additional discovery is required regarding the grounds at issue 2 because plaintiff has possession of, or access to, his administrative appeals and his own 3 documents concerning his appeals, and the complaint and abstract of judgment contain all the 4 facts necessary to determine whether plaintiff’s claims are barred and whether he is entitled to 5 any tolling. (ECF No. 20-1 at 3.) In his request for extension, plaintiff does not identify the 6 nature of the discovery sought, and does not identify the evidence he would seek through 7 discovery or explain how it would rebut defendants’ motion. Plaintiff has access to his 8 administrative appeals in his prison records. 9 Therefore, the undersigned finds good cause to stay all discovery pending resolution of the 10 instant motion. However, plaintiff is granted an additional sixty days in which to file his 11 opposition to the motion. The court is not inclined to grant additional extensions of time. The 12 discovery and scheduling order is vacated pending resolution of the summary judgment motion. 13 The undersigned will reopen discovery, and issue a revised discovery and scheduling order, if 14 appropriate, following resolution of defendants’ motion for summary judgment. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Defendants’ motion (ECF No. 20) is granted; 17 2. Discovery is stayed pending resolution of the motion for summary judgment; 18 3. The March 7, 2017 discovery and scheduling order (ECF No. 18) is vacated; 19 4. Plaintiff’s March 30, 2017 motion (ECF No. 21) is partially granted; and 20 5. Plaintiff shall file his opposition to the motion for summary judgment within sixty days 21 from the date of this order. Defendants’ reply, if any, shall be filed fourteen days thereafter. 22 Dated: April 10, 2017 23 24 25 26 27 28 /howa1200.sty

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