(PC) Haynie v. Esquerra et al

Filing 39

ORDER signed by Magistrate Judge Deborah Barnes on 3/19/2024 GRANTING 34 Ex Parte Application. Defendant to file Motion for Summary Judgment by 7/19/2024. The Court PERMITS Limited Discovery. Discovery due by 5/29/2024. Defendant to depose Plaintiff by 5/29/2024. (Clemente Licea, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONELL THOMAS HAYNIE,

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Plaintiff,

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No. 2:22-cv-02204 DAD DB P

v.

ORDER

CASSANDRA SYSOUVANH,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. On January 26, 2024, defendant filed an ex parte request for extension of

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time to answer the complaint and for leave to file a pre-answer motion for summary adjudication

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as to plaintiff’s retaliation claim exclusively on the ground that plaintiff failed to exhaust

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administrative remedies prior to filing this action. (See ECF Nos. 34, 37.) Plaintiff opposes the

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motion, arguing defendant already unsuccessfully raised the issue in a motion to dismiss. (ECF

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No. 35.)

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The exhaustion requirement of the Prison Litigation Reform Act expressly states “[n]o

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action shall be brought ... until [the prisoner’s] administrative remedies are exhausted.” 42 U.S.C.

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§ 1997e(a). Courts are directed to decide exhaustion, if feasible, before reaching the merits. See

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Albino v. Baca, 747 F.3d 1162, 1166, 1168, 1170 (9th Cir. 2014) (en banc).
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Under Federal Rule of Civil Procedure 56, a party may move with or without supporting

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affidavits for summary judgment on part or all of the claims until 30 days after the close of

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discovery. Fed. R. Civ. P. 56(b). Thus, a party may file summary judgment motion before filing

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an answer. However, Rule 56 is silent about whether filing a motion for summary judgment tolls

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the time to file an answer. Courts in the Ninth Circuit have concluded that by analogy to Rule

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12(a)(4), it is appropriate to extend the time to file the answer until the court decides the motion

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for summary judgment where such motion adequately contests the action. See Huff v. Moore, No.

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1:19-CV-01248-HBK-PC, 2022 WL 6808296, at *2 (E.D. Cal. Oct. 11, 2022).

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Here, an exhaustion-based summary judgment motion contests the adequacy of the action.

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If plaintiff did not fully and properly exhaust his available remedies, dismissal is proper.

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Defendant’s requested relief is consistent with the Ninth Circuit’s direction that exhaustion be

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adjudicated through a motion for summary judgment. See Albino, 747 F.3d at 1166. Accordingly,

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for good cause shown, the court grants defendant’s ex parte request.

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In accordance with the above, IT IS HEREBY ORDERED as follows:

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1. Defendant’s ex parte application for leave to file a pre-answer motion for partial

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summary adjudication as to plaintiff’s alleged failure to exhaust administrative remedies and for

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an extension of time to file a responsive pleading (ECF No. 34) is GRANTED, and defendant

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shall file any such motion for summary judgment on or before July 19, 2024;

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2. The court permits the following limited discovery: (a) plaintiff and defendant are

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granted leave to immediately conduct limited discovery relating to the administrative exhaustion

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issue only. Any such discovery must be completed no later than May 29, 2024; (b) defendant is

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granted leave under Fed. R. Civ. P. 30(a)(2)(B) to depose plaintiff no later than May 29, 2024.

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The deposition is limited to the exhaustion issue.

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3. Defendant’s answer to the complaint is due thirty (30) days from the date of any order

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by the presiding district judge adjudicating defendant’s pre-answer motion for partial summary

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judgment.

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Dated: March 19, 2024

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DLB7\hayn2204.36answ.sj

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