Brown v. Reif et al

Filing 84

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/24/2019 GRANTING 70 Motion to Strike; ORDERING Clerk to strike 64 Opposition to Defendants' Answer and 77 Motion for Summary Judgment, as they were filed in violation of 44 Order; GRANTING 75 Motion for Protective Order; and DENYING 82 Motion for Extension of Time. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE CHEROKEE BROWN,

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No. 2:18-cv-01088-KJM-CKD-P

Plaintiff,
v.

ORDER

C. REIF, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to

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42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1).

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Following this court’s discovery and scheduling order issued on March 21, 2019, the

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parties have filed a total of seven pending motions. In an effort to focus on the pending

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dispositive summary judgment motions, the court will address the remaining ancillary issues by

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way of this order.

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I.

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On March 26, 2019, defendants filed a motion to strike plaintiff’s unauthorized opposition

Defendants’ Motion to Strike Plaintiff’s Surreply (ECF No. 70)

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to defendants’ answer because it was not permitted by the Federal Rules of Civil Procedure, the

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Local Rules, nor this court’s November 9, 2018 Order which limited plaintiff’s filings to one

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dispositive motion at a time. See ECF No. 44.
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While the court agrees with defendants, filing a formal motion to strike this pleading is

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not only unnecessary, but counter-productive as it has the capacity to generate even more non-

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dispositive motions. See ECF No. 70 at 2 (advising plaintiff that he had 21 days to file an

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opposition or statement of non-opposition). The court has the sua sponte ability to manage its

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own docket. Accordingly, the court will grant defendant’s motion to strike plaintiff’s opposition

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to their answer filed on March 13, 2019.
Plaintiff’s Motions for Summary Judgment (ECF Nos. 72, 77)

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II.

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Also pending before the court are plaintiff’s two separate motions for summary judgment.

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The motions were filed on March 29, 2019 and April 8, 2019, respectively, and are largely

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duplicative of one another. See ECF Nos. 72, 77. Due to prior repetitious filings, plaintiff was

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limited to filing one dispositive motion at a time by order dated November 9, 2018. Plaintiff was

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cautioned that his failure to comply would result “in any improperly filed documents being

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stricken from the record and may result in a recommendation that this action be dismissed.” ECF

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No. 44 at 4. In accordance with the November 9, 2018 order, plaintiff’s second motion for

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summary judgment (ECF No. 77) is ordered stricken from the docket.
Defendants’ Motion for a Protective Order (ECF No. 75)

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III.

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On April 4, 2019, defendants filed a motion for summary judgment as well as a motion for

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a protective order alleging that plaintiff had not properly exhausted his administrative remedies

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prior to filing the instant § 1983 lawsuit. ECF Nos. 74, 75. The motion for a protective order

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seeks a stay of any discovery unrelated to the issue of exhaustion pending the court’s ruling on

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the summary judgment motion. Defendants assert that requiring them “to respond to non-

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exhaustion based discovery at this time would be unduly burdensome and would constitute a

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waste of scarce state resources.” ECF No. 75-1 at 2. Defendants further contend that, if

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successful, their motion for summary judgment will resolve the case in its entirety thereby

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mooting the need for any additional discovery beyond the exhaustion issue. ECF No. 75-1 at 4.

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A district court has broad discretion to stay discovery pending the resolution of a

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dispositive motion. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988); see also Fed. R.

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Civ. P. 26(c). A two-pronged test is used to determine whether a protective order should issue
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staying discovery. Lowery v. F.A.A., 1994 WL 912632, *3 (E.D. Cal. 1994). First, a pending

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motion must be potentially dispositive of the entire case, or at least dispositive on the issue at

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which discovery is directed. Id. (citing Panola, 762 F.2d at 1560). Second, the court must

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determine whether the pending dispositive motion can be decided absent discovery. See Lowery,

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1994 WL 912632 at *3. In this procedural context, the propriety of delaying discovery on the

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merits of the plaintiff’s claims was explicitly recognized by the Ninth Circuit in Albino v. Baca,

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747 F.3d 1162, 1170-71 (9th Cir. 2014) (en banc), cert. denied sub. nom. Scott v. Albino, 135 S.

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Ct. 403 (2014).

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Defendants’ motion for a protective order satisfies all of the requirements for staying

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discovery on the merits of plaintiff’s claims. First, their motion for summary judgment, if

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granted, is dispositive of the entire case. Second, any non-exhaustion based discovery is

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unnecessary for resolution of the pending dispositive motion. For these reasons, the court will

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grant defendants’ motion for a protective order concerning any non-exhaustion based discovery.
Plaintiff’s Motion for an Extension of Time to File Opposition (ECF No. 82)

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IV.

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Following submission of a response to defendants’ summary judgment motion (ECF No.

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80), plaintiff filed a motion requesting a 45-60 day extension of time to file another response.

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ECF No. 82. Plaintiff indicates that he needs this additional time in order to locate a jailhouse

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lawyer to assist him and to obtain his mental health and medical records to support the allegations

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in his complaint. ECF No. 82. In light of plaintiff’s initial opposition (ECF No. 80), defendants’

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filed their reply on April 22, 2019. Therefore, defendants’ summary judgment motion has been

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fully briefed by the parties. In light of this fact and in conjunction with this court’s prior order

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limiting plaintiff’s pleadings, the court will deny plaintiff’s request for an extension of time to file

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a second response in opposition to defendants’ summary judgment motion.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant’s Motion to Strike (ECF No. 70) is granted.

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2.

The Clerk shall strike Plaintiff’s Opposition to Defendants’ Answer (ECF No. 64) and

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Plaintiff’s Motion for Summary Judgment (ECF No. 77) from the docket since they

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were filed in violation of this court’s order of November 9, 2018.
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3. Defendants’ motion for a protective order (ECF No. 75) is granted. All non-

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exhaustion based discovery in this matter, including discovery that has already been

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propounded, is stayed until the court rules on defendants’ motion for summary

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judgment. The court will issue a modified discovery and scheduling order in the event

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that defendants’ summary judgment motion is denied.

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4. Plaintiff’s motion for an extension of time to file an additional response to defendants’
summary judgment motion (ECF No. 82) is denied.
Dated: April 24, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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