Trevino v. Dotson et al

Filing 102

ORDER DENYING MOTIONS by Judge Phyllis J. Hamilton denying 94 Motion for Reconsideration; denying 95 Motion for extension of time; denying 97 Motion for Reconsideration; denying 100 Motion for Leave to File. Plaintiff's Motion for Extension 93 is granted. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 7/31/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT TREVINO, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 15-cv-05373-PJH ORDER DENYING MOTIONS v. Re: Dkt. Nos. 93, 94, 95, 97, 100 E. DOTSON, et al., Defendants. 12 13 Plaintiff proceeds with a pro se civil rights action. On April 5, 2017, defendants 14 filed a motion for summary judgment alleging that plaintiff failed to exhaust his 15 administrative remedies and that the doctrine of collateral estoppel favors dismissal 16 because plaintiff already litigated the same issues in state court. Plaintiff has been 17 provided several extensions and was to file an opposition by July 23, 2017. Plaintiff has 18 still not filed an opposition, but has filed several other motions seeking discovery, an 19 evidentiary hearing and reconsideration of prior court rulings. 20 Discovery is stayed in this case pending resolution of the summary judgment 21 motion involving exhaustion and collateral estoppel. The court has denied several prior 22 motions for discovery and an evidentiary hearing because they concern issues related to 23 the underlying issues of this case and not to exhaustion or collateral estoppel. Plaintiff’s 24 new motions for discovery and an evidentiary hearing are denied for the same reasons 25 as set forth in the prior orders. 26 Plaintiff’s motions for reconsideration are also denied. No pre-judgment motion for 27 reconsideration under Local Rule 7-9 may be brought without leave of court. See Civil 28 L.R. 7-9(a). The moving party must specifically show: (1) that at the time of the motion 1 for leave, a material difference in fact or law exists from that which was presented to the 2 court before entry of the interlocutory order for which the reconsideration is sought, and 3 that in the exercise of reasonable diligence the party applying for reconsideration did not 4 know such fact or law at the time of the interlocutory order; or (2) the emergence of new 5 material facts or a change of law occurring after the time of such order; or (3) a manifest 6 failure by the court to consider material facts which were presented to the court before 7 such interlocutory order. See Civil L.R. 7-9(b). 8 9 Plaintiff has failed to show any new material facts or changes of law with respect to his requests for discovery and an evidentiary hearing. Plaintiff has not shown that his discovery requests relate to exhaustion or collateral estoppel in order to prepare an 11 United States District Court Northern District of California 10 opposition. Once the summary judgment motion is fully briefed, the court will determine if 12 a hearing is required. If this case proceeds past this summary judgment motion plaintiff 13 may file a motion to compel additional discovery. Defendants have already responded to 14 124 discovery requests but plaintiff served 259 more requests. 15 Plaintiff has also returned a document subpoena form for the court to serve. The 16 subpoena is for fingerprint evidence and photographs concerning the underlying 17 disciplinary infraction that is the subject of this action. The court previously discussed its 18 reasons for declining to issue the same subpoena. The most recent subpoena will not be 19 served for the same reasons. CONCLUSION 20 21 1. Plaintiff’s motion for an extension is (Docket No. 93) is GRANTED. Plaintiff 22 must file an opposition by August 23, 2017. Failure to file an opposition by that date 23 may result in the court ruling on the unopposed motion. 24 25 2. The motions for reconsideration and an evidentiary hearing (Docket No. 94, 95, 97, 100) are DENIED. 26 27 28 2 1 2 IT IS SO ORDERED. Dated: July 31, 2017 3 4 PHYLLIS J. HAMILTON United States District Judge 5 6 \\candoak.cand.circ9.dcn\data\users\PJHALL\_psp\2015\2015_05373_Trevino_v_Dotson_(PSP)\15-cv-05373-PJH-ord4.docx 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ROBERT TREVINO, Case No. 15-cv-05373-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 E. DOTSON, et al., Defendants. 9 10 United States District Court Northern District of California 11 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 15 16 That on July 31, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 Robert Trevino ID: J-64367 Salinas Valley State Prison D4-#130L P.O. Box 1050 Soledad, CA 93960 20 21 22 Dated: July 31, 2017 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 28 By:________________________ Kelly Collins, Deputy Clerk to the Honorable PHYLLIS J. HAMILTON 4

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